IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
CASE NO: CAF 04 / 2024
COURT A QUO CASE NO: CC 06/2020
In the matter between:
NKULULEKO MOSES KRAAI Appellant
and
THE STATE Respondent
Coram: Hendricks JP, Petersen ADJP, Morgan AJ
Considered on the papers by a reconstituted bench: 27 February 2026
Delivered: This judgment was handed down electronically , circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to SAFLII.
The date and time for the handing down of the judgment are deemed to be 10h00
on 03 March 2026.
Summary: Appeal against conviction and sentence for murder, robbery with
aggravating circumstances, and kidnapping – state’s case reliant on testimony of
a s 204 of the Criminal Procedure Act 51 of 1977 accomplice witness – trial court
found accomplice witness mendacious and untrustworthy but nonetheless used
discredited testimony to ground conviction – misdirection by trial court in relying
on inadmissible hearsay evidence to bolster failed oral testimony – failure to
properly apply cautionary rule regarding single witnesses and accomplices –
appellant’s version corroborated by independent witness and reasonably possibly
true – State failed to prove guilt b eyond reasonable doubt – conviction and
sentence set aside – appellant acquitted on all counts.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from: North West Division of the High Court, Mahikeng (Lephadi AJ
sitting as the court a quo):
1. The appeal against conviction is upheld.
2. The convictions and sentences imposed on the appellant in the court a quo are
set aside. The order of the court a quo is replaced with the following order:
‘The accused is acquitted on all counts.’
3. The appellant, unless otherwise lawfully detained, must be released from
detention immediately.
________________________________________________________________
JUDGMENT
________________________________________________________________
Petersen ADJP (Hendricks JP and Morgan AJ concurring)
Introduction
[1] The appellant, Mr Nkululeko Moses Kraai, appeals against his conviction
and sentence in the High Court, North West Division, Mahikeng (per Lephadi
AJ), on charges of murder, robbery with aggravating circumstances, and
kidnapping. The appeal comes before th is Full Court by order of the Supreme
Court of Appeal, which granted leave to appeal on 21 April 2021.
[2] An inordinate delay in the handing down of the judgment occasioned by
the previous panel assigned by the Judge President necessitated a reconstituted
panel being assigned, t o deal with the appeal expeditiously . This was further
necessitated to mitigate a continued injustice to the appellant who has been
incarcerated, particularly following his conviction, for more than five years.
[3] The appellant was convicted on all three counts and sentenced as follows:
count 1 (murder): 15 years ’ imprisonment, c ount 2 (robbery with aggravating
circumstances): 20 years ’ imprisonment, and c ount 3 (kidnapping): 5 years ’
imprisonment. The court a quo ordered that the sentences on counts 1 and 2 run
concurrently, with the sentence on count 3, resulting in an effective term of 25
years’ imprisonment.
Condonation
[4] The law of condonation is trite. Considering the conclusion reached in this
appeal, and the fact that the respondent does not oppose the grant of condonation,
condonation is granted for the late prosecution of the appeal.
Background
[5] On the night of 25 April 2019 and into the early hours of 26 April 2019,
the deceased, Mr Isaac Dikote Tlhapi, a teacher, was attacked, robbed of his
Nissan Qashqai motor vehicle and an amount of approximately R400.00, and
subsequently killed. His body was discovered on 29 April 2019 along the road
between Leeudoringstad and Makwassie. He was naked except for his socks, had
been placed in long grass, and had sustained 13 stab wounds to his chest, neck,
and thorax.
[6] The appellant was arrested on 29 April 2019 at his home in Delareyville.
He pleaded not guilty and exercised his right to remain silent. The state ’s case
rested principally on the evidence of Mr Tshepang Johannes Leteane, who was
originally accused number 2 but against whom the charges were withdrawn and
who testified as a witness in terms of s 204 of the Criminal Procedure Act 51 of
1977 (CPA).
Summary of the evidence
The State’s case
[7] Mr Leteane testified that he met the appellant in 2018 while both were in
police cells at Wolmaransstad for unrelated matters. They exchanged numbers
and communicated thereafter. On 25 April 2019, the appellant arrived at Leteane’s
home in Wolmaransstad around 18h30 in the company of three people , his
younger brother, Mpho, and one ‘Pman’. They consumed alcohol and drugs.
Thereafter, the appellant’s brother and Pman fell asleep. Leteane, the appellant,
and Mpho decided to go to a pub to find ‘women’.
[8] On their way to Soka Pub, they encountered the deceased, whom Leteane
knew from stokvels as ‘Mosolisto’. The deceased offered them a lift. Leteane sat
in the front passenger seat; the deceased drove; the appellant sat behind the
passenger seat; and Mpho sat behind the driver. According to Leteane, Mpho
produced a knife and stabbed the deceased once on the left side. The deceased
screamed and asked Leteane to see what his friend was doing. When Leteane
enquired, Mpho did not respond. Leteane suggested they take the deceased to the
clinic. The deceased was moved to the backseat, and the appellant took the
driver’s seat.
[9] Instead of driving to the clinic, the appellant drove towards a dumping site.
Mpho attacked the deceased again. They stopped, and all three , the appellant,
Leteane, and Mpho, placed the deceased in the boot. Mpho searched the deceased
and removed his cellphone, which Leteane checked for airtime but found none.
Leteane opened the cubbyhole and found a money bag containing cash. The
appellant instructed him to leave the money for petrol.
[10] They drove to the Makwassie intersection, turned towards Leeudoring, and
stopped. They removed the deceased from the boot. The deceased pleaded: ‘I am
asking not to be killed. You can take anything that you want’. They placed him in
long grass approximately six metres from the road. Mpho later returned with the
deceased’s T-shirt, jeans, and tekkies. The appellant instructed Mpho to dispose
of the knife and the deceased ’s cellphone, which Mpho did. They drove to
Orkney, where the appellant instructed them to clean bloodstains from the car. At
a filling station, the appellant took the money from the cubbyhole to purchase
petrol.
[11] They drove to Soweto, arriving at Phiri around 04h00. The appellant
contacted his cousin, and arrangements were made to sell the vehicle. When
police were seen near the vehicle, the appellant and Mpho took Leteane to
Waterworks, where he obtained a lift back to Wolmaransstad. They instructed him
not to say anything.
[12] Constable Obakeng Mohale Macatola attended the scene where the
deceased’s body was found. He testified that the body was naked except for socks,
had stab wounds, was decomposing, and had been placed in long grass. He
confirmed that Leteane had pointed out the body to the police.
[13] Sergeant Itumeleng Amos Sebotsho, the investigating officer, testified that
Leteane informed him that the person who first stabbed the deceased was ‘Mr P’
and not the appellant. However, Leteane also told him that the appellant stabbed
the deceased after the deceased was placed in the boot, that the appellant
instructed them to throw away the knife and cellphone, and that the appellant
ordered them to clean the blood from the vehicle.
[14] This constituted the fulcrum of the State’s case.
The Defence case
[15] The appellant testified in his own defence. He confirmed meeting Leteane
in police cells in 2018. He stated that the purpose of his visit to Wolmaransstad
on 25 April 2019 was to rob a certain Ms Kidi, who owned Soka Pub and drove
a red Ford Ranger. This plan had been discussed with Leteane telephonically. He
arrived around 20h00 in his own vehicle, bringing alcohol. He and Leteane
consumed alcohol in Leteane ’s RDP house until Leteane left at a round 22h00.
The appellant fell asleep until Leteane woke him at approximately 01h00, holding
car keys, and asked him to drive to Gauteng to visit Leteane ’s relatives in
Katlehong. The appellant agreed.
[16] In the car, Leteane sat in the front passenger seat; an unknown male sat in
the back. The appellant did not enquire about the car ’s ownership. At Orkney,
they purchased petrol using R400 that Leteane took from the cubbyhole. They
drove to Zuurbekom, where an argument arose because the appellant did not
know Katlehong. He decided to drive to Soweto, which he knew, having grown
up there. At Phiri, Soweto, the appellant handed the car keys to Leteane , parted
ways and he returned to Delareyville.
[17] On 29 April 2019, police arrived at his home, arrested him, and seized his
clothing. He was taken to Itsoseng, where he saw Leteane in a police vehicle. He
was then informed he was being arrested for murder, robbery, and kidnapping.
The appellant denied knowing the deceased, seeing him on 25 and/or 26 April
2019 or being present when the deceased was stabbed. He denied robbing or
kidnapping the deceased and denied knowledge that the vehicle was stolen.
[18] Ms Lesedi Sidane Mavunga, Leteane ’s former girlfriend testified in the
defence case. She testified that on the evening of 25 April 2019, Leteane fetched
the appellant, Telele, Mpho, and another unknown male. They arrived at the RDP
house around 19h00 to 19h30. She, Leteane, Telele, Mpho, and the other male
later went to Soka Pub in a double cab bakkie, leaving the appellant at the RDP
house because his picture was at the police station and he did not want to be seen.
[19] At the pub, they encountered a white Polo (GTI) whose occupants sought
directions to buy liquor. Telele instructed them to follow. An attempt was made
to hijack the vehicle, which was blocked. Two occupants of the bakkie stabbed
the GTI’s tyres and stabbed a person in the GTI. They returned to the pub, where
Leteane and Telele hid the bakkie.
[20] At the pub Leteane spoke to ‘the teacher’ (the deceased) and shook hands
with him. They all entered the deceased ’s car, including the deceased, Leteane,
Mavunga, Telele, and two unknown males, and drove to the RDP house. Leteane
quarrelled with one unknown male. They re -entered the car; and the deceased
drove to a dark place where one unknown male stabbed the deceased from behind.
Mavunga fled to the RDP. The appellant was asleep at the RDP house throughout.
[21] Later, Leteane phoned, instructing her to tell Telele and others to fetch the
car. When Telele left, the appellant was not there. She did not report the incident
because Leteane threatened to kill her if she spoke.
[22] That concluded the defence case.
The judgment of the court a quo
[23] The trial court identified five versions presented by the various witnesses.
It found that the only reliable witnesses were the police officers, Macatola and
Sebotsho, whose evidence was not aimed at implicating or exonerating any
person but merely recounted what Leteane had told them.
[24] The trial court found that Leteane’s evidence was that of a single witness
and an accomplice, requiring caution. It referenced R v Mokoena1, noting that the
1 R v Mokoena 1932 OPD 79.
evidence of a single witness must be clear and satisfactory in every material
respect, and that the section should not be invoked where the witness has an
interest adverse to the accused, has made previous inconsistent statements, or
contradicts himself.
[25] The trial court further highlighted several internal contradictions in
Leteane’s evidence and contradictions as against the evidence of Mavunga.
Leteane told Macatola that another person and the appellant stabbed the deceased;
he told Sebotsho that the appellant and ‘Mr P’ stabbed the deceased; but in court,
he said Mpho stabbed the deceased and the appellant did not. Leteane denied
meeting the deceased at the pub, but Mavunga said they did.
[26] The trial court found that none of the three main witnesses , Leteane, the
appellant, or Mavunga was credible, honest, or trustworthy. They were described
as ‘mendacious witnesses, dishonest, lying witnesses’ who could not be trusted.
The trial court found their evidence aimed at distancing the appellant from the
offences.
[27] Despite rejecting Leteane’s evidence as untrustworthy, the court concluded
that it had been proven beyond reasonable doubt that the appellant and Leteane
were with the deceased in his car; that the deceased was attacked and stabbed by
one of the occupants; that after the deceased was injured, the appellant drove the
vehicle; that t he deceased was robbed of his belongings ; that t he appellant
participated in disposing of the body; that at the appellant's instruction, the knife,
cellphone, and clothes were thrown away, and the car was cleaned; that in Soweto,
the appellant was actively involved in arranging disposal of the car . The most
surprising finding by the trial court, which in my view was a serious misdirection
is that the appellant acted in common purpose with Leteane and others.
[28] The trial court rejected the appellant’s version as not reasonably possibly
true and convicted him on all counts. The trial court refused Leteane a discharge
under s 204 of the CPA, finding he had not testified frankly and honestly. In my
view, this should have signalled the end of the trial and an acquittal on all the
charges should have followed.
Grounds of appeal
[29] The appellant’s grounds of appeal may be summarised as follows . As to
conviction. On the evidence of the State, t he trial court erred in finding that the
state had proved its case beyond reasonable doubt when the State’s case depended
entirely on the evidence of Leteane, which evidence the court itself rejected as
untrustworthy, dishonest, and lacking credibility. The court erred in convicting
the appellant in the absence of any acceptable evidence linking him to the
offences, having rejected the only evidence that purported to implicate him. The
court erred in failing to apply the principle that where the evidence of a single
witness, especially an accomplice, is rejected, there is no basis for a conviction.
[30] On the version of the appellant, t he court erred in failing to find that the
appellant’s version, corroborated by Mavunga, was reasonably possibly true. The
court’s conclusion that the appellant was present during the stabbing was not
supported by any evidence, direct or circumstantial, particularly given that
Mavunga testified the appellant was asleep at the RDP house throughout.
[31] On the evidence of the s 204 witness, t he court erred in relying on
inadmissible hearsay evidence, inherent in the statements Leteane allegedly made
to police officers, to supplement the deficiencies in Leteane’s oral testimony. The
court misdirected itself by effectively treating the appellant ’s presence in the
vehicle, driving from Wolmaransstad to Soweto , as sufficient to establish his
participation in the murder and robbery, without proof of common purpose. And
lastly, that the court erred in finding that the State had proved common purpose
when there was no evidence of prior agreement, and Leteane himself testified
there was no discussion about robbing or stabbing the deceased.
[32] Considering the conclusion reached in this appeal, it is not necessary to
traverse the grounds of appeal against sentence.
Evaluation
[33] At the heart of this appeal lies a fundamental question . Can an accused
person be convicted on the evidence of a state witness whom the court has found
to be dishonest, untrustworthy, and lacking credibility? To this, there can be only
one answer, an emphatic ‘No’.
[34] The trial court ’s findings regarding Leteane could not have been more
emphatic. It found him to be ‘not credible’, ‘not honest’, and someone who ‘could
not be trusted ’. It described him, together with the appellant and Mavunga, as
‘mendacious witnesses, dishonest, lying witnesses’. The trial court further found
that Leteane had failed to meet the requirements set out in R v Mokoena for the
evidence of a single witness to be relied upon.
[35] Having made these findings, the trial court was faced with a stark reality .
The State’s case against the appellant rested entirely on Leteane ’s evidence. No
other witness placed the appellant at the scene of the stabbing. The police officers
testified only to what Leteane had told them. Mavunga explicitly testified that the
appellant was asleep at the RDP house throughout the critical events. The physical
evidence, including the body and the vehicle’s recovery, established only that
crimes had been committed, not the appellant’s participation.
[36] In these circumstances, the proper course was clear. As stated in S v
Shackell2:
‘The proper test is that an accused is bound to be convicted if the evidence establishes his
guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if
it is reasonably possible that he might be innocent.’
[37] In S v Van der Meyden3, Nugent J (as he then was) held:
‘A court does not base its conclusion, whether it be to convict or to acquit on only part
of the evidence. The conclusion which it arrives at must account for all the evidence.
Some of the evidence might be found to be false; some of it might be found to be
unreliable; and some of it might be found to be only possibly false or unr eliable, but
none of it may simply be ignored’.
[38] The trial court, having found Leteane’s evidence false and unreliable, could
not simply dis regard it and then proceed to convict the appellant on some
uncorroborated basis. Curiously, this is precisely what occurred. The trial court
stated that certain facts had been proved beyond reasonable doubt, but these
‘facts’ derived from the very evidence it had rejected.
[39] The trial court’s finding that the appellant , ‘was present in the motor
vehicle when the deceased was stabbed ’, is unsupported by any acceptable
evidence. Leteane’s testimony to this effect was rejected as dishonest. Mavunga’s
testimony placed the appellant elsewhere. The appellant denied it. No forensic
evidence linked the appellant to the stabbing.
2 S v Shackell 2001 (4) SA 1 (SCA) at paragraph 30.
3 S v Van der Meyden 1999 (2) SA 79 (W) at 81.
[40] The trial court’s reliance on statements Leteane allegedly made to police
officers Macatola and Sebotsho , is very problematic. These statements, even if
made, were hearsay and could not be used to supplement the deficiencies in
Leteane’s oral testimony once that testimony was rejected. Moreover, the
contradictions between what Leteane told the police and what he told the court
were themselves relied upon by the court to find Leteane dishonest.
[41] Regarding common purpose, the State’s case faced insurmountable
difficulties. Common purpose requires proof of prior agreement or active
association with the criminal conduct. Leteane himself testified there was no
discussion about robbing or stabbing the deceased. The attack, according to him,
was spontaneous. If Leteane ’s evidence is rejected, there is no evidence of any
agreement. The appellant ’s presence in the vehicle after the fact , driving to
Soweto, does not, without more, establish that he participated in the murder and
robbery or associated himself with them beforehand.
[42] The appellant ’s version, corroborated in material respects by Mavunga,
was that he was asleep at the RDP when the car was brought, that he drove to
Soweto at Leteane ’s request, and that he had no knowledge of the deceased ’s
presence in the vehicle or of the crimes. This version, even if not proven true, was
reasonably possibly true. The trial court was bound to acquit if there existed a
reasonable possibility that the appellant’s evidence might be true.4
[43] The trial court’s rejection of the appellant ’s version appears to have been
based not on its inherent improbability, but on a perception that all three main
witnesses were dishonest. However, the fact that a witness may be untruthful on
some aspects does not mean that everything they say is false. More
fundamentally, the State bears the onus of proving guilt beyond a reasonable
4 S v Khubeka 1982 (1) SA 534 (W) at 537).
doubt on the main charge or any competent verdict that may arise. It is not for the
accused to prove his innocence, and a conviction cannot be based on the court ’s
mere disbelief of the accused’s version where the State’s own evidence has been
rejected.
[44] In S v Hlapezula and Others 5, Holmes JA warned of the dangers of
accomplice evidence:
‘First, he is a self -confessed criminal. Second, various considerations may lead him
falsely to implicate the accused, for example, a desire to shield a culprit, or, particularly
where he has not been sentenced, the hope of clemency. Third, by reason of hi s inside
knowledge, he has a deceptive facility for concocting a convincing story, his only fiction
being the substitution of the accused for the culprit’.
[45] These dangers materialised fully in this case. Leteane, facing serious
charges, had every incentive to implicate the appellant to secure his own
immunity. His evidence shifted between different versions told to the police and
the trial court. The trial court’s refusal to grant him a discharge under section 204
confirmed that he had not testified frankly and honestly. Yet, paradoxically, the
trial court then used his discredited evidence as the foundation for the appellant’s
conviction.
[46] The result is that the appellant stands convicted on the evidence of a
witness whom the court itself found to be a ‘liar’. This cannot be sustained. The
conviction is fundamentally flawed and must be set aside.
5 S v Hlapezula and Others 1965 (4) SA 439 (A) at 440.
Conclusion
[47] The trial court ’s judgment presents a logical conundrum. It found the
State’s principal witness to be dishonest and unreliable. It found that none of the
three main witnesses could be trusted. It is mindboggling, how the trial court
could conclude that the State had proved its case beyond reasonable doubt, in the
face of trite authorities. Where the evidence tendered to prove guilt is rejected as
untruthful, the State has failed to discharge its onus.
[48] The appellant ’s version, corroborated by Mavunga, was reasonably
possibly true. The State failed to rebut it with credible evidence. The appellant
was entitled to an acquittal.
[49] The concession by the State that the conviction of the appellant cannot be
sustained and the appeal should be upheld, is well-informed and correctly
conceded.
Order
[50] In the result, the following order is made:
1. The appeal against conviction is upheld.
2. The convictions and sentences imposed on the appellant in the court a
quo are set aside. The order of the court a quo is replaced with the
following order:
‘The accused is acquitted on all counts.’
3. The appellant, unless otherwise lawfully detained, must be released
from detention immediately.
AH PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
I agree.
RD HENDRICKS
JUDGE PRESIDENT OF THE IDGH COURT
NORTH WEST DIVISION, MAHIKENG
I agree.
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MMORGAN
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the appellant: Mr M E Setumu
Instructed by: Legal Aid South Africa
Mahikeng
For the respondent: Adv F Tlatsana
Instructed by: The Director of Public Prosecutions
Mahikeng