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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable/Reportable
Case no: A60/2025
In the matter between:
TANKI DICKSON MOTSEKI APPELLANT
vesus
THE STATE RESPONDENT
Neutral citation: Tanki Dickson Motseki v The State ( A60/2025) [2026] ZAFSHC 77
(27 February 2026)
Coram: MHLAMBI ADJP et REINDERS J et PARKS AJ
Heard: 30 J anuary 2026
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII. The date and time for the hand-
down is deemed to be 10h00 on 03 March 2026.
Summary: Criminal appeal – conviction and sentence – robbery with aggravating
circumstances – murder – circumstantial evidence – common purpose – pointing out by
co-accused – admissibility – cell phone data – minimum sentences – substantial and
compelling circumstances.
ORDER
1 Appeal against conviction and sentence is dismissed.
JUDGMENT
2
Parks AJ
Introduction
[1] This is a full bench appeal, with leave to appeal granted by the Supreme Court of
Appeal, challenging the conviction and sentence imposed by Daniso J in the Virginia
circuit court. The appellant appeals against his conviction on the following grounds:
(a) The court misdirected itself in accepting evidence implicating the appellant, which
emanated from a pointing‑out by a co‑accused;
(b) The State failed to prove beyond reasonable doubt that the accused committed the
offence, as the circumstantial evidence does not meet the threshold required to sustain a
conviction; and
(c) The State failed to prove that the appellant acted in common purpose in the
commission of the offence.
[2] The State conceded that the court a quo erred in considering evidence from a
pointing‑out by a co‑accused that implicated the appellant.
Facts
[3] The appellant, along with two co‑ accused, was charged with robbery with
aggravating circumstances, in accordance with s 51(2) of the Criminal Law Amendment
Act 105 of 1997, and with murder, in accordance with section 51(1) of the same Act. The
State’s case relied entirely on circumstantial evidence within the framework of the
doctrine of common purpose. This is evident from the judgment of Daniso J, who found
that the appellant was near the deceased’s residence at the time of the robbery and
when items were taken from the deceased’s home, as shown by cell phone data records.
During that same period, the appellant was in cons tant contact with the co ‑accused
persons. Additionally, the co‑ accused, who later identified the appellant to a police
officer, placed him at the crime scene, specifically at the deceased’s residence, and later,
at another area called ‘the forest.
Submissions
[4] Counsel for the appellant argued that, given the requirements of the doctrine of
common purpose, particularly the need for active participation, and in the absence of any
3
evidence of a prior agreement, the court must consider the principles outlined in S v
Mgedezi,1 to determine if active participation has been proven. The first of these
requirements is that the perpetrator must have been present at the scene of the violence.
The main challenge here is the lack of clear evidence regarding where or when the
deceased received the fatal injuries.
[5] This issue is significant because the deceased’s body was found in Gauteng, and
no blood was detected at his residence. The lack of blood at the home supports the
conclusion that he was not fatally injured there. Counsel further argued that if the
deceased was injured at the location where his body was later discovered, then the
appellant could not have been present during the assault or during the transportation of
the body from the Free State to Gauteng. In this regard, cell phone data shows that the
appellant stayed within the Goldfields area during the relevant period. Therefore, the
appellant, who was not with those who transported and fatally injured the deceased,
could not have actively participated in the commission of the offence.
[6] Counsel further contended that Captain Steyn’s testimony was inconsistent. While
she testified that the appellant led them to the deceased’s residence, her affidavit states
that she took the appellant there , an assertion she expressly denied during
cross‑examination. The only reason why Capt ain Steyn transported the appellant to the
deceased’s house was that she lacked an appropriate interview venue due to ongoing
renovations at the local police station. Counsel argued that any information conveyed to
her by the appellant constitutes inadmissible evidence, as it amounts to an extra‑ curial
statement and should be excluded. Counsel, in conclusion, submitted that although the
court found the existence of substantial and compelling circumstances, it nevertheless
imposed a sentence that is shockingly inappropriate.
imposed a sentence that is shockingly inappropriate.
[7] On behalf of the state, counsel emphasized that the state relied on circumstantial
objective evidence. This evidence demonstrated that the appellant showed
Captain Steyn the deceased’s house. Additionally, the cell phone data of the appellant
and the co-accused showed that they were in the vicinity of the Riebeeckstad towers; all
three remained together in the area after 9 p.m.
1 S v Mgedezi and Others 1989 (1) SA 687 (A) at p705I-J.
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[8] Counsel for the state argued further that i t is not coincidental that the appellant and
accused 1 communicated multiple times on 24 September 2018, the day the deceased
disappeared from his home. The information conveyed to Captain Steyn cannot be
considered inadmissible, as it amounted to an admission reflecting the appellant’s
intention to ‘ come clean’ . Communication between the appellant and accused 1
continued after 04h00, with one of the calls lasting 123 seconds. Moreover, the fact that
the appellant had a photograph of the deceased’s brother on his phone, coupled with the
communication between the appellant and his co‑ accused prior to the deceased’s death,
strongly suggests that they had a prior agreement or common purpose to commit an
offence.
[9] Counsel for the state concluded that the sentence imposed cannot be regarded as
harsh when viewed against the seriousness of the offence. The deceased was an
82‑year‑old man who was assaulted, his body abandoned, and ultimately buried as a
pauper. The callous disposal of the body, depriving the deceased’s family of the
opportunity to pay their final respects, underscores the gravity and moral reprehensibility
of the conduct.
Evidence considered
[10] Mr Heynecke from National Security testified about the alarm activity at the
deceased’s house. According to the security records, the alarm was first activated on
23 September 2018 at 23h11. Throughout the night and into the next morning, the alarm
was activated and deactivated via remote control . At 06 h51, a burglary signal was
generated but not received by the control room. The last recorded movement inside the
house occurred at 07h12 and again at 07h44.
[11] Captain Strydom, who took over the investigation in November 2018, analysed the
deceased’s cell phone records. He found that MTN number [...]5594 was inserted into
the deceased’s phone on 24 September 2018 at 15 h52 and used until
26 September 2018. The number’s movements placed it in Thabong, Jim Fouché Park,
26 September 2018. The number’s movements placed it in Thabong, Jim Fouché Park,
Riebeeckstad, Kroonstad, Vaal Barrage, and later Soshanguve, and it was confirmed to
belong to a ccused 1, Mr Tseki. A second number, [ …] 5381, showed similar movements
in the Jim Fouche Park area on the morning of 24 September 2018, which was later
found to belong to the appellant.
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[12] Mr Kanti, an MTN manager, testified about the cell phone activity of numbers
…5594 and …5381 on 24 September. At 10 h33:21, number …5594 called [ …] 8504,
belonging to accused 2, initially connecting to a Welkom Telkom Uwave tower and
ending 35 seconds later in Jim Fouché Park, where it remained until 11 h24:29 before
later connecting from Riebeeckstad, Kroonstad, the area between Parys and Fochville,
and then the Vaal Barrage. During the same period, the appellant, made calls at 10h 33
and 10h53:11, connecting to Jim Fouché Park Sector 2 towers, covering the deceased’s
residence, until 10h57, then moving to Sector 3 at 11 h24, followed by Riebeeckstad, and
later the Thabong/Welkom area. Notably, at 10h 55:17, both numbers connected to the
Jim Fouché Park tower simultaneously, indicating they were in the same area.
[13] Captain Hayes attended the deceased’s residence after a neighbour reported that
the gates were standing open on 24 September 2018 at 19h00. Captain Steyn testified
about the communication that occurred between numbers ending in…5381 and…5594
on 24 September, from 17h47. They contacted each other about 11 times that evening,
and the same numbers were in contact before the sim card was inserted into the
deceased's phone and thereafter.
[14] In the appellant's case, the evidence showed frequent communication between the
appellant and accused 1 and 2.O n 24 September 2018, accused 2 attempted to contact
the appellant at 02h 01:02, and later that morning, the appellant spoke to a ccused 2 for
52 seconds, with further contact between their numbers throughout the day. On
25 September2018, accused 1 called the appellant at 04 h07 (123 seconds), followed by
additional calls from accused 2 at 04h35:37 (42 seconds) and 07h26 (204 seconds). Cell
tower recor ds indicated all three numbers were in Jim Fouché Park on
24 September 2018 while the deceased was still at home, and later near the
24 September 2018 while the deceased was still at home, and later near the
Riebeeckstad tower during overlapping periods. A photograph on the appellant’s phone,
showing the deceased’s brother with a person identified as Mohua, was taken at a mall in
Welkom.
[15] Accused 1 testified that on 24 September 2018, he left home at about 09h 00. After
10h00, he contacted accused 2, and the two communicated roughly eight times that day.
Within a 90‑minute period, he also spoke with the appellant three times, including calls at
10h03:05 (to the appellant) and 10h 18:22 (to accused 2). Between 10h33 and 10h35, all
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three were in the same cell ‑tower sector as the deceased’s home, which a ccused 1
attributed to the appellant having a friend in the area, Charity Mohau. Further frequent
calls occurred on 24 and 25 September 2018, amounting to about 9 with accused two
and 11 with the appellant.
[16] Accused 2, on the other hand, stated that he does not really know the appellant and
denied knowing or using the number …0854, despite it being used on his cell phone. He
also denied communicating with the appellant on 23 September 2018 at 9h05:30, as well
as any subsequent communication three times thereafter.
Reasoning
[17] Daniso J held that, although the State’s case was based solely on circumstantial
evidence, a review of the facts as a whole pointed to the guilt of the appellant. The
learned judge also reasoned that the principle of common purpose is not limited to
conduct at the scene of the crime but can also stem from a prior agreement and be
inferred from the circumstances surrounding the commission of the offense.
[18] When the objective evidence is compared with the appellant’s claim that his phone
was used only for a ccused 1 and accused 2 to communicate with each other, the
explanation becomes improbable, as the records show he contacted both accused at
times when neither was with him. Although he asserts that he does not sociali se with
accused 2 and a ccused 2 likewise confirms that he hardly knows the appellant, the
appellant’s phone records reflect multiple communications between them on 24 –25
September 2018. While the appellant does not deny contact with his co‑ accused, the
frequency, timing, and even early ‑morning calls make it unlikely that they were not
closely associated.
[19] Logic suggests that people who are not closely connected wouldn’t communicate at
2h00 or 4h 00 in the morning without a good reason, but the appellant says nothing
significant happened during this time. It is also unlikely that the appellant would have a
significant happened during this time. It is also unlikely that the appellant would have a
photo of someone related to the deceased, especially with someone he knows who
shares the name Mohau, particularly since a ccused 1 testified that a person named
Mohau lived in the deceased’s area. This further weakens the appellant’s explanation for
why his phone activity showed him near the cell tower covering the deceased’s home.
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[20] The ongoing communication between the appellant and the co‑ accused, both
before and after accused 1 inserted his SIM card into the deceased’s phone, supports
the conclusion that they reached a prior agreement and shared a common purpose to
commit the crime, specifically the robbery and murder of the deceased. It is highly
unlikely that this frequent and coordinated contact was just a coincidence, and this
conclusion is further supported by the fact that the appellant had a photo on his phone of
a relative of the deceased, which fits the broader pattern of their involvement.
[21] Although the evidence is circumstantial, it nevertheless strongly supports the
State’s case and outweighs any reasonable doubt the court a quo may have entertained
regarding the appellant’s involvement in the offences. I therefore concur with the
reasoning of Daniso J in convicting the appellant and find that she neither erred nor
misdirected herself in ultimately returning a conviction on both charges.
[22] Counsel for the appellant argued that the 25- year prison sentence for the murder
conviction is ‘shockingly inappropriate’. However, no substantial reasons were provided
to support this claim. As Terblanche
2 notes in his work on sentencing, a court must
consider all three components of the Zinn triad and, given the specific circumstances of
each case, decide how much weight to assign to each element. This approach ensures
that the final sentence reflects a proper and proportionate balance among them.
[23] It is clear that the presiding judge properly considered the factors outlined in the
Zinn triad, as well as the principles established in the well -known Malgas
3 decision,
which warns courts against deviating from the prescribed minimum sentences for the
flimsiest reasons. The court a quo ultimately concluded that there were substantial and
compelling circumstances, justifying a departure from the mandatory life sentence and
compelling circumstances, justifying a departure from the mandatory life sentence and
resulting in a lesser sentence. This shows that the court showed a measure of mercy
toward the appellant. In this case, it is unnecessary to repeat the mitigating and
aggravating factors discussed during sentencing. I therefore cannot find that the imposed
sentence is shockingly inappropriate.
Order
2 S S Terblanche Guide to Sentencing in South Africa 3ed 2016 at 161.
3 S v Malgas 2001 (2) SA 1222 (SCA) at 1231A.
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[24] I accordingly make the following order:
1 Appeal against conviction and sentence is dismissed.
_______________
C PARKS
ACTING JUDGE OF THE HIGH COURT
I concur
____________________________
MHLAMBI
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
I concur
___________________________
REINDERS J
JUDGE OF THE HIGH COURT
Appearances
For the appellant: R J Nkhahle
Instructed by: Thebe Attorneys, Bloemfontein
For the respondent: A Bester
Instructed by: Director of Public Prosecutions, Bloemfontein.