SAFLII Note: Certain personal/privat e details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO : CC66/2024
DATE : 03.02.2 026
In the matter between
THE STATE
and
TSEBO MOSIKILI Accused
J U D G M E N T
MATLAPENG , AJ:
1. The indictment reflects that the accused ’s names are
Al bert Tsebo Mosiki di. The state, at the outset made
an application that the indictment should be
amended, that the accused’s names should read
Tsebo Mosikili, and not Al bert Tsebo Mosikidi. Adv
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE : YES / NO
(2) OF INTEREST TO OTHER JUDGES : YES / NO
(3 ) REVISED
......................................... .......... .
SIGNATURE
DATE: ............................ .
Simpson for the defence did not object to the
application for amendment. The Court granted the
application in terms of section 86 of the Criminal
Procedure Act 51 of 1977 regard being h ad to the fact
that the amendment would not prejudice the accused
in his defence .
2. Mr Tsebo Mosikili, hereinafter , the accused, is a 29 -
year -old South African citizen . He is charged with
the following counts :
Count 1: Kidnapping . It is alleged that upon or
about 2 March 2024, at or near Beverly
Hills at Evaton in the district of Seb okeng,
he did unlawfully, and intentionally
depriv ed R[...] M[...] , who is the deceased
in count 2, of her freedom of movement , by
taking her from her home against her will .
Count 2 : Murder . It is alleged that on the date and
place mentioned in count 1, the accused
unlawfully and intentionally ki lled R[...]
M[...] .
Count 3 : Rape . I n contravention of section 3 read
with other relevant provisions of the Sexual
Offences and Related Matters Act 32 of
2007 . Also read with the provisions of
section 51 (2) of the Criminal Law
Amendment Act 105 o f 1997 . It is alleged
that on the date and place mentioned in
count 1, the accused unlawfully and
intentionally had sexual penetration with
N[...] M[...] , by inserting his penis in her
mouth and vagina without her consent .
3. The accused pleaded not gu ilty to all the charges
preferred against him . He is represented by Adv
Simpson from Legal Aid South Africa, who confirmed
that the pleas are in accordance with her instructions .
4. The accused's plea explanation pursuant to the
provisions of section 115 of the Criminal Procedure
Act 51 of 1977 , is that he denies having kidnapped
and killed the deceased mentioned in count 1 and 2.
His explanation on count 3 is that he admits that he
had sexual intercourse with N[...] M[...] , but that the
latter consent ed to the intercourse .
5. The Court explained competent verdicts to the
accused . It also apprised him of the provisions of the
Criminal Law Amendment Act 105 of 1977,
colloquially referred to as the Minimum Sentences
Act .
6. The defence made the following admissions in terms
of section 220 of the Criminal Procedure Act 51 of
1977 .
(i) The identity of the deceased .
(ii) That the deceased died on 2 March 2024 at or
near Evaton .
(iii) That the d eceased sustained no further injuries
from 2 March 2024 until the postmortem
examination was done on 5 March 2024 .
(iv) The correctness and authenticity of the photo
album consisting of photos 1-234 .
7. These admissions were read into the record and
marked EXHIBIT A. The photo album and key
thereto, were compiled by Sergeant Thabiso Ler ato
Mohale. They were handed in by consent as an
exhibit and marked EXHIBIT B.
8. The state, in its attempt to prove its case beyond a
reasonable doubt, called eight witnesses .
9. The first witness to testify is Sbongile Msomi,
here inafter referred to as Sbongile . Her evidence, in
a nutshell, is to the following effect . She was in a
romantic relationship with the accused from
December 2 02 3 until December 2024 . The offences
are alleged to have been committed on 2 March 2024 ,
which means she was still in a relationship with the
accused at the time of the commission of the offences
preferred against the accused .
10. On the night of 1 March 2024, Sbongile was in the
company of the accused at Ghetto Tavern at Evaton ,
and there they foun d Jonas , K[...] , N[...] , and the
deceased . They enjoyed themselves at the tavern,
and when it closed in the early hours of the morning,
it was decided that the entourage should proceed to
Jona s’ p lace, situated at Beverly Hills, Evaton , and
they did g o there .
11. They also enjoyed themselves at Jona s’ place until in
the morning at around 6 A M. At about this time, 6
AM, it was said that K[...] is missing money, a sum of
R2 000. It was decided that K[...] should go to the
deceased's place with a view t o questioning her about
the money . Upon arrival, K[...] knocked, the
deceased appeared, she was confronted about the
missing money . The latter denied having taken it .
She wanted to go and put on her shoes . The accused
refused her permission to do so an d pushed her in
Sbongile ’s car, a Toyota Yaris, and they drove with
her to Jonas ’ place.
12. It is Sbongile 's testimony that at Jonas’ place, the
deceased, was again questioned about the missing
money, but she still denied knowledge of it . The
accused as ked Sbongile to give him a plastic which
was lying on the floor . Sbongile complied, accused
then put it over the deceased ’s head. Sbongile
testified further that the deceased teared it , accused
dragged her to t he bedroom, and that is at that stage
that t he deceased said the money is at her home
under a TV stand . Sbongile and K[...] went to the
deceased's place, but they did not find the money
under the TV stand .
13. It is Sbongile 's evidence further that they then
returned to Jona s’ place and found the d eceased
lying motionless on the floor in the bedroom .
Sbongile 's testimon y is further that when she left with
K[...] for the deceased ’s place, the accused was with
the deceased inside the bedroom . It is her testimony
that she was tipsy when she left with K[...] to the
deceased ’s place .
14. It is Sbongile 's evidence that she was also arrested
for the offences preferred against the accused, but
that charges were withdrawn .
15. Sb ongil e was requested to look at photo 141 of
EXHIBIT B. This photo depicts a w hite plastic bag .
The witness testified that this is a plastic the accused
used to put over the deceased head .
16. It was put to Sbongile during cross -examination by
the defence that Sbongile never gave a plastic to the
accused for the latter to put on th e deceased ’s head .
Sbongile maintained that the accused did put a
plastic over the deceased ’s head .
17. Iviwe Gqibisane, hereinafter, Iviwe, also gave
evidence . He is the deceased's neighbour . It is his
evidence that on the day of this incident the
dece ased arrived around 6:00 in the morning at his
place to come and fetch the key to her house , and
that about 30 to 45 minutes thereafter, two cars
arrived at the deceased ’s place and that the accused
was amongst the people who were there
18. Iviwe testified further that those people left with the
deceased . I t is this witness evidence that not long
thereafter, two males and a female arrived, they
informed him that the deceased has stolen their
R2 000 and she sent them to come and fetch it.
19. It is Iviwe’s evidence that those people entered the
deceased ’s house . He followed them, but they did
not find the money . The witness followed them to
Jona s’ place, and there he found the deceased lying
on the floor .
20. N[...] M[...] , hereinafter N[...] , also gave e vidence .
She corroborated Sbongile ’s evidence in all material
respects .
21. it is N[...] ’s evidence that she had sexual intercourse
with Jonas and that she consented to the intercourse
on the morning of 2 March 20 24.
22. It is in N[...] ’s te stimony further that it was said that a
sum of R2 000 was missing and that the accused said
she (N[...] ) and the deceased must take out the
money, failing which he is going to kill them .
23. She testified that the accused was very angry and
even sweati ng, that the accused dragged the
deceased to the bedroom . N[...] testified that after
some time, Sbongile came out of the bedroom,
wherein the accused and the deceased were . She
decided to enter the room with a view to checking the
deceased . She fou nd the deceased lying motionless
on the floor .
24. It is N[...] ’s testimony that when the accused realised
that the deceased was not waking up, he ordered her
to undress . It is her evidence that she complied .
She took off her dress because she was te rrified .
The accused took out his penis and penetrated her
vagina . She testified further that after the sexual
intercourse, the accused fled . The witness remained
with the deceased in the bedroom .
25 . It was put to N[...] by Adv Simpson for the defe nce
that she had consented to the intercourse on a coach
depicted on photo 88 of EXHIBIT B. The witness
maintained that sexual intercourse occurred in the
bedroom wherein the deceased was found . This room
is depicted on photos 50 and 51 and that she did not
consent to the intercourse .
26 . It is N[...] ’s evidence that she did not consent to the
sexual intercourse . She was terrified . Her friend was
lying motionless on the floor . She was only with the
accused inside the house at the time . There was
nothing she could do . She had to abide by the
instructions to undress .
27. It was put to N[...] that the accused denies having put
a plastic over the deceased ’s head . The witness
maintained that he did that repeatedly . It is worth y to
mention that N[...] did not know the accused before
the day of the incident .
28. Jonas M dluli, hereinafter Jonas, also gave evidence .
He confirmed the evidence of K[...] , Sbongile , and
N[...] , f rom the moment they left Ghetto Tavern until
they reached his house .
29. It is Jonas' evidence that whilst at his place he had
sexual intercourse with N[...] that the latter consented
to the intercourse and that he fell asleep after the
intercourse . It is his testimony further that in the
morning , he was informed that money, an amount of
R2 000 was missing, that it was his money, but that
he had given it to K[...] for safekeeping .
30. Jonas testified further that in the morning the
deceased was accused of having stolen the money,
but that she denied having stolen it . It is this
witness ’ evidence that the accused then took a plastic
and put it over the deceased ’s head . Jonas testified
further, that he and K[...] were reprimanding the
accused, that the accused was very furious and paid
no heed . This portion of his evid ence was confirmed
by N[...] . It is Jona s’ evidence further , that the
accused strangled the deceased and the latter said
the money is at her home under a TV stand .
31. Jonas testified further that all of them left for the
deceased ’s place, the accused remained behind with
the deceased and N[...] . It is Jonas' version further ,
that they did not find the money at the deceased ’s
place and that when they arrive at his place, that is
Jonas’ place, the accused came out running .
32. Jonas' testimony is t o the effect that when the
accused came out running from inside the house, he
told him (Jonas), that he must tell the police that he
does not know him .
33. This witness was asked during cross -examination by
Adv Simpson for the defence, where the plastic
depicted in photo 41 came from . His response is that
it is a plastic that the accused used to put over the
deceased ’s head .
34. It was put to Jonas that he throttled the deceased and
that the accused and Sbongile stopped him . He
replied in the negative . It is important to note that
Sbongile 's evidence on th is score is that she did not
see Jonas throttle the deceased .
35. K[...] M[...] , hereinafter K[...] , also gave evidence .
He corroborated the evidence of Sbongile , N[...] , and
Jonas in all materia l respect . It is K[...] 's testimony
that the m oney in question was his , that it was in his
trouser pocket and that this trouser was in the boot of
Jonas' c ar.
36. Thabiso Lerato Mohale, hereinafter, the
photographer, is a member of the South African
Polic e Service . It is his evidence that on 3 February
2024, he received a call as a result of which he
proceeded to a m urder scene at h ouse number 2[...] ,
I[...] Street, Beverly Hills, Evaton . It is his testimony
that he compiled a photo album and a key there to,
which were handed in as an exhibit and marked
EXHIBIT B.
37. The last but one witness to testify for the state is
Solly Mkhonza . He is a detective sergeant at Evaton
SAPS since 2004 .
38 . It is his evidence that he attended a scene of crime
on 2 March 2024, and that he, amongst other people,
interviewed N[...] , the complainant in a rape count,
but that the latter was traumatised, shocked and
appeared to have been under the influence of liquor .
He then made an appointment with N[...] to meet the
following day .
39. It is Detective Sergeant Mkho nza’s testimony that the
following day, N[...] did arrive at the police station
and laid a charge of rape . That N[...] was then taken
to Thuthuzela Healthcare Centre, where she was
examined . That c oncluded his evidence .
40 . Petros Gobile , also gave evidence . He is the last
witness to testify for the state. He is a doctor
working at the Department of Forensic Pathology in
Sebokeng Hospital . It is this witness ’ evidence that
he conducted a post -mor tem examination on the body
of the deceased in this matter , on 5 March 2024 .
41. It is Dr Gobile’s evidence that after the examination,
his finding is that the cause of death is blunt force
injuries , complicated by asphyxia (unnatural).
42. Dr Gobile’s te stimony is further that he compiled a
post -mortem report and an album , which were handed
in as exhibits and marked EXHIBIT D and E,
respectively . The state’s case was then closed .
43. The accused is the only witness who testified for the
defence . He conf irms the evidence of the state
witnesses from the tavern , until they reached Jona s’
place . That at about 6 A M on 2 March 2024, it was
said that K[...] is missing money, that they then went
to the deceased's place and returned with her . It is
the accused' s evidence that the deceased came
willingly to Jona s' place .
44 . The evidence of the accused differs with that of the
state witnesses, like day and night , a s to what
happened at Jonas ’ place, and who actually caused
the death of the deceased .
45. Accused t estified that at Jonas ’ place, the latter, had
a plastic bag and was assaulting the deceased . He
vehemently denied having assaulted the deceased in
the manner, testified to by the state witnesses .
Thereafter, the defence’s case was closed .
46 . Adv Sihlan gu for the state applied for the conviction
of the accused as charged . He correctly argued that
the evidence must be viewed in totality .
47 . It is Adv Sihlangu’s argument further that the
deceased died because she was deprived of oxygen
and that the evide nce proves that the accused did put
a plastic over the deceased ’s head .
48. He argues further that the witnesses made a good
impression and that the Court should accept their
evidence .
49. Adv Sihlangu argued further that the doctor ruled out
any possibili ty of throttling as alleged by the accused .
50. It is Adv Sihlangu’s argument further that the accused
did not fare well as a witness and that his evidence
should be rejected as false .
51. Adv Simpson for the defence, on the other hand,
applied for a disch arge of the accused on all the
charges preferred against him . She argued that there
are material contradiction s in the state ’s case . She
argued further that the state witnesses should have
been warned in terms of section 204 of the Criminal
Procedure Act , because they were charged with the
same offences that the accused is facing and that
their version should be approached with
circumspection .
52. Adv Simpson argued further that there is no
toxicology report, that the cause of death is in fact
unknown and that it cannot be excluded that drugs
contributed to the death of the deceased .
53 . She argued further that there is no evidence that the
murder is premeditated .
54 . Adv Simpson's argument is further that N[...] was
drunk , as a result, she was unable to make a
statement to Sergeant M khonza . That according to
the indictment, the penis was also put in her mouth,
but she never testified in her evidence in chief that a
penis was also put in her mouth .
55. Adv Simpson argued further that the accused testif ied
in a chronological order , that there is doubt as to
what caused the death of the deceased, that the
accused should be given the benefit thereof , and be
acquitted on all the offences levelled against him .
The Court must now evaluate the evidence to
det ermine if the accused's guilt has been proved
beyond a reasonable doubt .
57. The onus of proof in a criminal case is discharged by
the state , if the evidence establishe s the guilt of the
accused beyond a reasonable doubt . This test was
articulated succinc tly in the case of S v Van Der
Meyden 1999 (1) SACR 447 (W) at 449J -450B, where
it was stated.
“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. The
process of reasoning which is
appropriate to the application of that test
in any particular case will depend on the
nature of the evidence which the court
has before it. What m ust be borne in
mind, however, is that the conclusion
which is reached (whether it be to convict
or to acquit) 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 unreliable; but none of it may simply
be ignored.”
See also S v Ntsele 1998 (2) SACR 178 (SCA).
58. According to the pathfinding and seminal judgment of
R v Difford 1937 AD 37 at 373.
“No onus rests on the accus ed to
convince the court of the truth of any
explanation he gives. If he gives an
explanation even if that explanation is
improbable, the court is not entitled to
convict unless it is satisfied, not only that
the explanation is improbable, but that
beyond any reasonable doubt it is false.”
59 . In the case of S v Kubeka 1982 (1) SA 534 (WLD), it
was held that the evidence ought not to be looked at
piecemeal and in isolation . All of it should be
analysed and weighed together in determining
whether the state has proved its case beyond a
reasonable doubt .
60. It has been said in a number of cases that the proper
approach in a criminal case is to consider the totality
of the evidence, that is to say, to examine the nature
of the state’s case , the nature of the defence’s case ,
the probabilities emerging from the state’s case as a
whole, the credibility of all the witnesses in the case,
including the defence witnesses, and then ask oneself
at the end of all this, whether the guilt of the accused
has been establis hed beyond a reasonable doubt .
61. The following are common cause:
(i) That Jonas, K[...] , N[...] and the deceased were
at a tavern by the name of Ghetto at Evaton on
the day mentioned in the indictment .
(ii) That the accused and Sbongile had a roma ntic
relationship when this incident occurred on 2
March 2024 and that their relationship ended in
December of the same year .
(iii) That on the day in question, the accused and
Sbongile found Jonas and his compani ons at
Ghetto Tavern.
(iv) That when Ghe tto Tavern closed in the early
hours of the morning of 2 March 2024, it was
agreed that the entourage should go to Jona s’
place, situated at Beverly Hills, and that they
were there until 6:00 in the morning .
62. Points in dispute.
What is in dispute in t his matter between the state
and the defence is who actually killed the deceased
and what is the cause of death of the deceased in
this matter ?
63. The information of the missing money that led to the
death of the deceased in this matter is sketchy . I am
saying so , because in the morning of the day in
question, after the deceased had left for her home, it
was said that everybody must check his or her
belongings . It was said that the deceased normally
steal other people's belongings . It is not known who
actually uttered these words . The accused went to
check his belongings, everything, including his
money, were intact . He had R200 or R300 , he is not
certain about the amount. He was not missing
anything.
64. K[...] also went to check his belongings . He testified
that he missed money . It is not clear whether it was
R1 800, R1 900 or R2 000. K[...] testified that this
money was in his trouser pocket in the boot of Jona s’
vehicle . It is difficult to fat hom how the deceased
would have reached this money .
65. The accused ’s version is that it was said that a bag, a
pair of trousers, and money were missing . This
version cannot be the truth, because N[...] who is the
owner of the bag testified to the effect that her bag
was there, and she gave the pair of trousers to the
deceased at the lat ter’s request before the deceased
could leave for her parental home at 6:00 in the
morning.
66. The evidence is that it was decided that the deceased
should be approached with a view to enquiring from
her about the mi ssing money . K[...] ’s testimon y is
that he took N[...] along , because he did not know the
deceased's place, and N[...] is the one who knew the
place . It is K[...] 's evidence that upon the ir arrival at
the deceased's place, he knocked, the decease d
appeared, he asked her about the missing money,
and the deceased denied knowledge of this money . It
is K[...] 's version that the accused immediately
appeared , grabbed the deceased and dragged her
into Sbongile ’s vehicle , a Toyota Yaris . He then
drove t o Jona s’ place and he had to follow them , a nd
it is his evidence that he even asked N[...] as to what
is happening .
It is worthy to mention that Sbongile ’s evidence on
this score is that the accused slightly pushed the
deceased into the Toyota Yaris vehicle . It is K[...] ’s
evidence that whilst at Jonas ’ place, he went out to
go and smoke , and whilst outside , he heard the
deceased screaming from inside the house . He
quickly returned into the house and in the dining room
he found the accused putting a plastic over the
deceased ’s head .
67. Jona s’ evidence is that in the dining room , the
accused put a plastic over the deceased ’s head and
K[...] teared it. It is K[...] 's evidence which was
corroborated by Jonas that they reprimanded the
accused, but the latter was very furious and paid no
heed to the warning .
68. N[...] ’s evidence is that the accused put a plastic bag
repeatedly over the deceased ’s head . Dr Gobile's
evidence is that there were several scratch marks on
the d eceased’s face, which is a n indication that the
deceased was trying to remove whatever object was
used to suffocate her.
69. The accused is insinuating that Jonas is the one who
caused the death of the deceased , b ecause he
strangled and/or throttled her , but the doctor found
absolu tely no evidence of strangulation . There were
no injuries on the neck . The doctor's finding is that
the deceased died because she was deprived of
oxygen .
70. The following portions of evidence are of cardinal
importance . It is not known why the accused decided
to go to the deceased ’s place on the first occasion
because his belongings were intact , he was not
missing a thing . K[...] 's evidence is that when the
accused arrived at a deceased ’s place, he just
grabbed and dragged her and put her into Sbongile ’s
vehicle, the Yaris, and he drove to Jonas ’ place .
It is also of importance to mention that when Jonas
left to go and look for money under the TV stand at
the deceased's place, the accused said he is
remaining behind with the deceased at Jonas' place .
This portion of Jonas' evidence is confirmed by K[...] .
71. Jonas' evidence is further that when he arrived at his
house in the company of Sbongile and K[...] , the
accused came running from inside the house . When
he asked the accused why he was running a way, the
accused said to Jonas, do not tell the police that you
know me, and this portion of Jonas' evidence is also
corroborated by K[...] .
72. It is worth mentioning that K[...] , Jonas, N[...] and
Sbongile ’s e vidence is in agreement that the accused
put a plastic over the deceased ’s head, and their
version is confirmed by medical evidence that the
deceased died because she was deprived of oxygen .
73. It is of utmost importance to know that Sbongile was
the accused ’s girlfriend at the time of the comm ission
of the offences . They were in a relationship before
and after the commission of these offences .
74. The a ccused ’s version is that Jonas strangled the
deceased . Jonas denied it . Other witnesses, that is,
K[...] , N[...] , and Sbongile , did not s ee Jonas strangle
the deceased .
75. During cross -examination by the state, the accused
was asked if he placed a plastic over the deceased ’s
head . He replied that there was an attempt by Jonas
to do that, but he did not succeed .
76. The accused ’s version i s that when he left Jona s’
place, he was intending to go to the police station ,
and that Jona s’ car was chasing him . He had to hide .
He later phoned his ex -girlfriend in order for the latter
to take him to the police station . It is amazing why
the accus ed would have decided to call the ex -
girlfriend when he was with Sbongile , his girlfriend , at
Jonas ’ place. He was driving Sbongile ’s Toyota
Yaris, he used it to go and fetch the deceased at her
place .
77. It is the accused ’s testimony that after the frac as , he
asked Sbongile as to what did she tell the police . To
which she replied that she told them everything what
happened . The question that forcefully come to the
fore is, why did the accused put such a question to
Sbongile ?
78. I can go on and on to p oint out the discrepancies in
the defence’s case , but do not deem it necessary to
do so .
79. The evidence of the four state witnesses , to wit,
Sbongile , Jonas, K[...] , and N[...] , is that the accused
is the one who put plastic over the deceased ’s head .
The question that also come forcefully to the fore is:
Why would all these witnesses, including Sbongile ,
the accused's girlfriend, why would all of them team
up against the accused ?
80. It was argued by Adv Simpson on behalf of the
accused that these w itnesses are implicating the
accused because they are sa ving their skins . They
were suspect s, charges were withdrawn against them .
81. It was argued by Adv Simpson that these witnesses
should have been warned in terms of section 204 of
the Criminal Proced ure Act before they testified, and
that their evidence should be approached with
caution . For the sake of completeness, section 204
of the Criminal Procedure Act provides :
“(1 ) Whenever the prosecutor at criminal
proceedings informs the court that any
per son called as a witness on behalf of
the prosecution will be required by the
prosecution to answer questions which
may incriminate such witness with regard
to an offence specified by the prosecutor -
(a) the court, if satisfied that such
witness is otherwise a competent
witness for the prosecution, shall
inform such witness -
(i) that he is obliged to give
evidence at the proceedings in
question;
(ii) that questions may be put to
him whi ch may incriminate him with
regard to the offence specified by
the pro secutor;
(iii) that he will be obliged to
answer any question put to him,
whether by the prosecution, the
accused or the court,
notwithstanding that the answer
may incriminate him with regard to
the offence so specified or with
regard to any offence in respect of
which a verdict of guilty would be
competent upon a charge relating
to the offence so specified;
(iv) that if he answers frankly and
honestly all questions put to him,
he s hall be discharged from
prosecutio n with regard to the
offence so spec ified and with
regard to any offence in respect of
which a verdict of guilty would be
competent upon a charge relating
to the offence so specified; and
(b) such witness shall thereupon give
evidence and answer any question
put to him, whether by the
pros ecution, the accused or the
court, notwithstanding that the
reply thereto may incriminate him
with regard to the offence so
specified by the prosecutor or with
regard to any offence in r espect of
which a verdict of guilty would be
competent upon a charge r elating
to the offence so specified.
(2) If a witness referred to in
subsection (1), in the opinion of
the court, answers frankly and
honestly all questions put to him -
(a) such witness shall, subject to
the provisions of subsection (3), be
discharged f rom prosecution for
the offence so specified by the
prosecutor and for any offence in
respect of which a verdict of guilty
would be competent upon a charge
relating to the offence so spe cified;
and
(b) the court shall cause such
discharge to be entered on the
record of the proceedings in
question.
(3) The discharge referred to in
subsection (2) shall be of no legal
force or effect if it is given at
preparatory examination
proceedings and the witness
concerned does not at any trial
arising out of such pr eparatory
examination, answer, in the
opinion of the court, frankly and
honestly all questions put to him at
such trial, whether by the
prosecution, the accused or the
court.
(4) (a) Wh ere a witness gives evidence
under this section and is not
discharged from prosecution in
respect of the offence in question,
such evidence shall not be
admissible in evidence against him
at any trial in respect of such
offence or any offence in respect
of which a verdict of guilty is
competent upon a charge relating
to such offence.
(b) The provisions of this
subsection shall not apply with
reference to a witness who is
prosecuted for perjury arising from
the giving of the evidence in
question, or for a contravention of
section 319 (3) of the Criminal
Procedure Act, 1955 ( Act 56 of
1955). ”
83. Sbongile ’s evidence is that she was arrested and
charged, about three days after the commission of the
offences, but that charges were then withdrawn in the
district court . She was not an accused person in this
court when the proceed ings started .
84 . Adv Sih langu for the state, did not inform the Court
that it should warn the witnesses in terms of section
204 of the Criminal Procedure Act 51 of 1977 . It is
worthy t o mention that even Sbongile was not warned
that questions may be put to her , which may
incriminate her and that she will be obliged to answer
those questions . S he incriminated herself to some
extent because she testified that accused requested
her to hand the plastic to him, which was lying on the
floor, and she complied . She handed the plastic to
the accused, who put it over the deceased ’s head . It
is also of utmost importance to mention that Sbongile
was still in love with the accused when this incide nt
occurred, and there is therefore , absolutely no reason
why Sbongile would falsely incriminate her lover, or
her b oyfriend to the commission of the offences .
85. There is evidence that about a month or so after this
incident, Jonas was arrested, but charges were also
withdrawn against him , b efore the accused was
arraigned for trial in the High Court . As a result, he
was also not apprised of the provisions of section 204
of the Criminal Procedure Act .
86. Is also of importance to note that the evidence of
Sbongile , K[...] and N[...] does not incriminate Jonas
in any way to the commission of the offences
preferred against the accused .
87. There is no evidence that K[...] was arrested for the
offen ces pre ferred against the accused . There is
therefore , no reason why he should have been
wa rned of the provisions of section 2 04 of the
Criminal Procedure Act .
88. It is worth mentioning that K[...] knew the accused by
sight before this incident . This is confirmed by the
accused . There is therefore , no reason why K[...]
would falsely incriminate the accused to the
commission of the offences preferred against him.
89. N[...] ’s version is that she was told she is being
arrested for kidnapping, but that the charge was
withdrawn . K[...] 's testimo ny is that he is the one
who took N[...] along to the deceased ’s place
because he did not know the deceased ’s place , N[...]
is the one who knew the deceased’s place . There is
therefore , also no reason why the Court would have
warned N[...] in terms of the provisions of section 2 04
of the Criminal Procedure Act .
90. The argum ent by Adv Simpson, therefore, that these
witnesses should have been warned in terms of the
provision of section 204 of the Criminal Procedure
Act cannot stand .
91. Adv Simp son also argued that the accused should be
acquitted because there is evidence that the
deceased and N[...] were using drugs on the day in
question, that drugs may have contributed to the
death of the deceased .
92. N[...] ’s t estimon y is that at Jonas ’ place, she drank a
mixture of Sprite, cough syrup and Stil l pa in and that
the d eceased also drank it.
93. Dr Gobile who conducted the post -mortem reports ,
finding is that the cause of death is a blunt force
injury, complicated by asphyxia (unnatural).
94. Oxford Dictionary defines asphyxia as a critical
condition resulting from seve re oxygen deprivation to
the body and brain, often leading to unconsciousness,
brain damage, or death . It occurs when breathing is
interrupted or the air lacks sufficient oxygen caused
by factors like choking, drowning, strangulation, or
suffocation .
95. Dr Gobile's evidence is that oxygen transports blood
to all parts of the body for a human being to survive .
He testified to the effect that there was a blunt force
injury on the head and that the following are
indicative of the fact that the body of the deceased
was deprived of oxygen .
(i) The face of the deceased depicted on page 2 of
EXHIBIT E is blue .
(ii) The lips depicted on page 5 of EXHIBIT E are
blue and purple .
(iii) The tongue depicted on pages 9 and 10 of
EXHIBIT E is pale .
(iv) A lung de picted on photo 12 is swollen .
(v) It is the doctor's testimony that page 2 of
EXHIBIT E depicts bruises on the deceased's
face and that these bruises were apparently
cause d by the deceased herself when she was
trying to remove the object that was deprivi ng
her of oxygen .
96. It is the accused's evidence that Jona s strangled the
deceased . The doctor's testimony is that there were
no injuries on the neck . It is the doctor's finding that
nothing was found in keeping with strangulation .
97. It is also of ut most importance to mention that
Sbongile , K[...] and N[...] did not see Jonas strangle
the deceased at any stage .
98. I find, therefore, that the argument by Adv Simpson
for the defence , that there is no toxicology report,
that the exact cause of death is unknown, and/or that
drugs would have contributed to the death of the
deceased , does not hold water .
99. Adv Simpson argued further that there are
contradictions in the state ’s case , and that the Court
should find that there is doubt in the state ’s cas e and
that the accused should be given the benefit thereof
and be discharged on all the charges preferred
against him.
100. In the case of S v Mkhole 1990 (1) SACR 95 (A) at
98F -H, it was held that contradictions per se do not
lead to the rejection of a w itness ’ evidence . These
contradictions may simply be indicative of an error .
Not every error affect credibility . It depends on the
nature, the number, importance, bearing on the rest
of his evidence , could be a relatively minor and sort
of thing to be e xpected from honest but imperfect
recollection, observation and reconstruction .
101. K[...] ’s evidence is that when he arrived at the
deceased’s place of residence , he was i n the
company of N[...] . The latter had gone to show him
the deceased ’ place . He knocked at the deceased's
place . The deceased appeared . He asked her about
the money . The latter denied having taken it . The
accused suddenly appeared, grabbed the deceased
and d ragged her and put her in the Yaris vehicle,
Sbongile ’s vehicle and dr ove to Jonas’ place.
102. Sbongile ’s evidence is that the deceased agreed to
go with them to Jona s’ place . Sbongile again
testified that the accused slightly pushed the
dec eased into the vehicle. It is therefore not
surprising that there would be differe nces or
contradictions between Sbongile ’s evidence and that
of the other state witnesses . The accused is her
boyfriend , and t he question that also forcefully come
to the fore is, according to Sbongile , why would the
accused slightly push the deceased into the vehicle if
the deceased , willingly decided to accompany them to
Jonas’ place.
103. It is of utmost importance to know that the accused ’s
version is that he never went out of the car at the
deceased ’s place , but K[...] and Sbongile are in
agreement th at the accused went out of the car and
he is the one who dragged the deceased into the
vehicle . Iviwe, also corroborated K[...] and
Sbongile ’s ver sion that at the d eceased’s place, he
saw the accused outside the vehicle .
104. Sbongile 's evidence is that t he deceased admitted
having taken a pair of trousers . This portion of
Sbongile ’s testimony is in conflict with N[...] ’s
evidence . N[...] ’s evidence is that she is the one who
gave a pair of trousers to the deceased at the latter’s
request before she could leave for her parental home.
Sbongile is insinuating that the deceased stole this
trouser, but this portion of her evidence cannot be the
truth, because the owner of this trouser , N[...] says, I
gave the trouser to the deceased at her reques t.
105. I find that these contradictions are not material .
and/or of importance when regard is heard to the rest
of the evidence .
106 . The crucial portion of Sbongile ’s evi dence is that
whilst in the dining room at Jona s’ place, the accused
put a plastic over the deceased ’s head . Thereafter,
the accused dragged the deceased to the bedroom ,
and that when they were in the bedroom, it is then
that the deceased said the money is at her parental
home under a TV stand , and that when Sbongile left
for the deceas ed ’s place to go and look for the m oney
under the TV stand, she left the accused in the
bedroom with the deceased . This portion of
Sbongile ’s evidence is also corroborated by N[...] .
107. Professor Snyman in his book Criminal Law, 6 th
edition (2014 ) at 471 def ines kidnapping as follows:
“It c onsists in unlawful and intentional
depriving a person ’s freedom of
movement, and/or if such person is under
the age of 18 years, the custodians of
their control over a child .”
See also, Snyman’s Criminal Law 7 t h Edition (2020) at
471.
108. The intent of the kidnapper is a decisive element in
the crime of kidnapping . The physical taking or
removal of a person from his or her home by the use
of force or coercion , amounts to kidnapping .
109. K[...] 's evidence is that after information surfaced
that money is missing, it was decided that he should
go and enquire from the deceased if she did not take
the money . K[...] took N[...] along and it is K[...] ’s
evidence that while he was interacting with the
deceased, the accused suddenly appeared, grabbed
and dragged the deceased and put her in the Yari s
vehicle and proceeded to Jona s’ place . This portion
of K[...] 's evidence demonstrat es in clear terms that
the accused forcefully removed the deceased from
her parenta l home .
110. According to N[...] , when they arrived at Jonas' place,
the accused uttered the following w ords, before he
repeatedly put a plastic over the deceased ’s head ,
“You are going to take out the money or produce the
money, fai ling which , I am go ing to kill you .” I find
that these words are effectively an illegal death
penalty . The accused established a kangaroo court ,
charged and convicted the deceased with a cri me of
theft , and imposed capital punishment . He was a jack
of all trades and a mas ter of none . He acted as a
police officer, an interpreter, a prosecutor, and a
presiding officer , and at the risk of repetition, he
convicted and sentenced the deceased to death on
unfounded allegations of theft .
111. In the case of S v Raath 2009 (2) SAC R 46 (C), the
court held that premeditation does not require long -
term planning but require some measure of prior
thought or consideration before the act is committed .
112. Sbongile ’s evidence is that the accused requested
her to hand to him a plastic whi ch was lying on the
floor . She complied, and the accused put it over the
deceased ’s head . This sequence suggests that the
accused had time to reflect, which supports
premeditation . In the case of Raath supra , the court
held that premeditation can happen within minutes if
the suspect forms a firm intent before committing the
act .
113 . The Supreme Court of Appeal in the case of S v
Kekana [2014] ZASCA 158, held that premedi tation
does not necessarily entail that the accused should
have thought or planned his or her action for a long
period of time in advance before carrying out his or
her plan . This is because even few minutes are
enough to carry out a premeditated action .
In the case of Director of Public Prosecutions
Gauteng v Pistorius [2016] ZASCA 1 50 at para graph
50, the court held that retrieving a weapon from
another room before committing the crime can
demonstrate premeditation .
114 . There is evidence that after th e accused had
(“ sentenced the deceased to this illegal death
penalty ” by uttering t he words, “Y ou produce the
money or I will kil l you .”), K[...] and Jonas
reprimanded him . That K[...] even said to the
accused that he will replace the money , but because
the accused had already formulated the intention to
kill the deceased, he continued to fulfil what he
premeditated . That is why he paid no heed to them
or ignored them .
115. It must be borne in mind that the accused's evidence
is that he was sober at the time because he had slept
for some hours before he was woken up at 6:00 in the
morn ing and informed about the missing money .
116. N[...] ’s evidence , which stand s uncontested , is that
the accused was very angry and also uttered the
words to the effect that he is unstoppable and that
nobody will stop him and that he can even kill .
117. It is worthy to note that the accused, uttered the
words mentioned in paragraph 116 above, after he
told the deceased to produce the money or be killed .
I interpret the wo rds, I am unstoppable and can even
kill, to mean that the accused was conveying a l oud
and clear message to every Tom Dick and Harry that
he is going to carry out the illegal death penalty he
had imposed on the deceased and that nobody was
going to prevent him from executing the death
penalty . These utterances demonstrate d in clear and
unequivocal terms that the accused was really
behaving like a bull in a China shop .
118 . I find on the basis of S v Raath and Kekana supra
that the accused premeditated the murder of the
deceased in this matter .
119 . I now turn to the rape charge .
It i s argued by the defence that the complainant
consented to the intercourse . May I hasten to
mention that the complainant and N[...] , will be used
interchangeably .
120 . N[...] ’s version is that after Sbongile came out of the
room , whe rein the accus ed was with the deceased,
she entered the room because she wanted to check
on the deceased . The accused then ordered her to
undress . She complied because she was terrified .
She had just seen the deceased being assaulted .
The latter was lying motionless on the floor . She had
no option but to comply . She was fearing for her life .
She did not consent to the intercourse . It is the
complainant's evidence that after the sexual
intercourse the accused fled . It is of cardinal
importance to no te that N[...] admit s that on this day
in question she had sexual intercourse with Jonas
and she consented to the intercourse .
122 . The question that forcefully come to the fore is , why
would N[...] decide to lay a charge against the
accused if she consented to the intercourse ?
123. Sergeant Mkhonza’s evidence is that when he
reached Jona s’ place on the day of the incident, N[...]
was not in a good state of mind , that she appeared
traumati sed and shocked . He then made an
appointment with her t o see her the following day.
124. Adv Simpson's argument is that the complainant's
testimony should be rejected because the indictment,
which is drafted on the basis of the statement she
made to the police, states that the penis was inserted
in the mouth and vagina , b ut that in her evidence in
chief, the complainant never testified that the penis
was also put in her mouth .
125. I find that there is no force in this argument regarding
being h ad to the fact that the accused admit s having
had sexual intercours e with the com plainant . It is
correct that she did not testify that the penis was put
in her mouth, but it is worthy to know that statements
of witnesses made to police officers , very often lack
detail and precision .
Meyer J, who wrote for the court, said the follow ing in
the case of Will y Frank Diale and Others , case
number A450 /1998, judgment delivered on 19 October
1998 in the TPD .
“Dit is wel so dat dit was nie so
amptenaar wat nie die geval neergeskryf
het nie, maar ons weet almal uit
ondervinding dat ‘n polisie getuie
verklaring baie dikwels vinnig afgeskryf
is en ‘n opsomming van wat plaasgevind
het en daar is gebruik gemaak van ‘n
informele tolk wat outomaties probleme
veroorsaak.”
See also S v Majavu 1994 (4) SA 268 (CPD) at 311.
126. It is inconceivable that N[...] who had just witnessed
her friend, the deceased, being mishandled in the
dining room and dragged to the bedroom by the
accused , until she was motionless on the floor, would
agree to have sexual intercourse with the accused ,
under these circumst ances . I t is worth mentioning
that the accused and the complainant did not know
each other before this day in question .
127 It is my considered view that, based on the above
facts, the accused ’s assertion that N[...] consented to
the intercourse is re jected as false beyond
reasonable doubt .
128. The witnesses whose evidence as to the events which
took place on the day in question are K[...] , Jonas,
N[...] , Sbongile and Iviwe.
129. The evidence of all these witnesses mentioned in
para graph 128 abov e, is corroborative of each other
to confirm the overall scenario and to eliminate
collusion .
130. The Court had the opportunity to see these
witnesses . They made a good impression to the
Court . I have no reason to place any question mark
in their evid ence .
131 . In the case of S v Kubeka 1982 (1) SA 534 (WLG ), it
was held that the evidence ought not to be looked at
piecemeal and in isolation . All of it should be
analysed and weighed together in determining
whether the state has proved its case beyond a
reasonable doubt .
132 . It has been decided in many cases that the proper
approach in a criminal case is to consider the totality
of the evidence, that is to say, to examine the nature
of the state’s case , the nature of the defence’s case ,
the probabilitie s emerging from the case as a whole,
the credibility of all the witnesses in the case,
including the defence witnesses, and then to ask
oneself whether the guilt of the accused has been
established beyond a reasonable doubt .
133. I am in agre ement with Adv Sihlangu for the state that
the accused did not fare well as a witness . He
evaded simple questions that were put to him . The
accused's evidence is full of improbabilities,
inconsistencies, and is devoid of all credence. I find
on the facts that the inc idents occurred in the manner
testified to by the state witnesses, and that the
accused ’s version, where it differs with that of the
state witnesses, is rejected as false .
134. It is my considered view that after having analysed
and weighed a ll the evidenc e presented, the state
succeeded to prove its case beyond a reasonable
doubt .
135. In the results, I pronounce the following verdict :
Count 1 : Kidnapping - Guilty as charged.
Count 2 : Murder, read with the provisions of section
51 (1) o f the Criminal La w Amendment Act
105 of 1997 - Guilty as charged .
Count 3 : Rape, read with the provision of section 3,
and other relevant provisions of the Sexual
Offences and Related Matters Act 32 of
2007, and further read with the provision of
section 51 (2) of Act 105 of 1977 - Guilty as
charged .
---------------
…………………………..
MATLAPENG, AJ
JUDGE OF THE HIGH COURT
DATE : …………………
TRANSCRIBER’S CERTIFICATE
I, the undersigned, hereby certify that so far as it is audible to
me, the aforegoing is a true and correct transcript of the
proceedings recorded by means of a digital recorder in the matter
between:
STATE // TSEBO MOSIKILI
CASE NUMBER : CC66/2024
RECORDED AT : PRETORIA HC
DATE HELD : 03-02-2026
NUMBER OF PAGES : 44
DATE COMPLE TED: 2026-02-09
SWORN TRANSCRIBER: JE NICHOLSON
PROBLEMS EXPERIENCED WITH RECORDING
1. Parties interveni ng each other resulted in indistinct words and/or phrases .
2. Incomplete annotations .
3. Where no clear annotations are furnished, names are transcribed
phonetically .
4. Recording was transcribed verbatim and therefore grammar not
corrected .
5. Judge sometimes forg ot to read paragraph numbering, and paragraph
numbers were corrected where it is not sequential.
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