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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: CA 42/2018
Regional Magistrates Case No: R/C 4/137/2012
In the matter between:
JACOBUS NKGOPOLANG MOKGETHI APPELLANT
And
THE STATE
RESPONDENT
Coram: Hendricks JP and Petersen ADJP
Heard: 19 March 2026 (on the papers)
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 24 March 2026.
Summary: Appeal against conviction and sentence on a charge of murder —
sole eyewitness’ evidence materially contradicted by post -mortem findings —
co-accused’s versions mutually destructive — State failed to prove guilt beyond
reasonable doubt — appeal upheld — conviction and sentence set aside —
appellant acquitted.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from: North West Regional Division, Klerksdorp (Regional
Magistrate Melodi, sitting as court of first instance):
1. The appeal against conviction is upheld.
2. The conviction and sentence imposed by the court below are set aside
and replaced with the following order:
“The accused is acquitted on the charge of murder.”
3. A copy of this judgment must be brought to the attention of the
Provincial Head of the Office of the Chief Justice, North West for
investigation and appropriate action in respect of the inordinate and
unexplained delay in the processing of this appeal in the Office of the
Chief Registrar; and, to the extent that the evidence so warrants, for
referral to the South African Police Services for criminal investigation.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETERSEN ADJP (HENDRICKS JP CONCURRING):
Introduction
[1] This is an appeal against both conviction and sentence imposed by the
Regional Court, Klerksdorp, on a charge of murder. The appellant, M r Jacobus
Nkgopolang Mokgethi (accused 1 in the court below), together with his co -
accused, Mr Tsepo Emanuel Nteo (accused 2), were charged with the murder of
Mr Pappa Johannes Nciwe on 4 December 2010 at Jouberton in the North West
Province. Both accused pleaded not guilty. On 29 July 2013 they were
convicted as charged, and on 05 August 2013 each was sentenced to 15 years’
imprisonment in terms of s 51(2) of the Criminal Law Amendment Act 105 of
1997. Additionally, both were declared unfit to possess a fi rearm in terms of s
103(1) of the Firearms Control Act 60 of 2000.
[2] The appellant’s application for leave to appeal was refused by the trial court
on 21 September 2017. Thereafter, he petitioned this court in terms of s 309C of
the Criminal Procedure Ac t 51 of 1977. On 03 May 2018 the petition for leave
to appeal against both conviction and sentence was granted. The matter now
serves before the present panel since the previous panel failed to attend to the
matter timeously.
Background facts
[3] The nomen clature adopted in summarising the background facts will be a
reference to the appellant and his co -accused in the court a quo. On the
afternoon of 04 December 2010 the deceased, Pappa Johannes Nciwe, visited
his friend, Mr Jacob Mosinki, at his residence at 1[...] Extension 14, Jouberton.
According to Mr Mosinki, the deceased came to borrow a t -shirt. While the
deceased was about to leave the premises, the appellant and his co -accused, Mr
Nteo, arrived at the gate. Mr Mosinki testified that both accused utt ered the
words ‘here is that guy’ as they entered the yard.
[4] Mr Mosinki’s evidence regarding what transpired next formed the crux of
the State’s case. He testified that the appellant was armed with an axe, which
had a steel handle covered with black rub ber and a shiny blade approximately
30 centimetres in length. Accused 2 was armed with a knobkerrie in his right
hand and a knife in his left hand. Accused 2 struck the deceased multiple times
with the knobkerrie on his head and body before the deceased pr oduced a
panga. The deceased struck accused 2 once on the head with the panga. The
appellant then joined the fight, striking the deceased on his back with the sharp
appellant then joined the fight, striking the deceased on his back with the sharp
edge of the axe, and continued striking him elsewhere on his body. The fight
lasted approxi mately 15 minutes. The deceased ran away and fell inside Mr
Mosinki’s shack, where he died. The appellant left through the gate, still
carrying the axe, while accused 2 jumped over the back of the shack and left.
The deceased’s panga was lying next to his body when Mr Mosinki left to wait
for the police, but had disappeared when he returned.
[5] Under cross -examination by Mr Minty, who appeared for the appellant,
several material contradictions emerged in Mr Mosinki’s evidence. First, his
statement to the p olice recorded that only accused 2 spoke when they arrived,
whereas Mr Mosinki testified in court that both accused spoke. Second, his
statement indicated he was sitting ‘outside next to the gate’, but he later claimed
to have been inside the yard, approxi mately 12-15 metres from the gate. Third,
and most significantly, his statement recorded that the appellant joined the fight
‘stabbing him’, yet Mr Mosinki conceded in cross -examination that the
appellant had no knife and was only ‘hitting’ with an axe. Wh en pressed on the
distinction between ‘stabbing’ and ‘hitting’, Mr Mosinki gave the remarkable
response that ‘an axe and a knife is the same thing’ and that stabbing and hitting
are ‘the same thing’.
The medical evidence
[6] Dr Ruwaida Morat, a specialist forensic pathologist, conducted the post -
mortem examination on 08 December 2010. Her findings, recorded in the post -
mortem report (Exhibit C), revealed the following injuries. A1: a laceration of
the right fronto-temporal scalp, measuring 23 x 6 mm (blunt force trauma). A2:
an oval abrasion of the left forehead (blunt force trauma. A3: the left eye was
swollen and contused (blunt force trauma). A4: a 12 x 8 mm incised wound of
the right upper lip (sharp force trauma). A5: a 55 x 12 mm incised wound of the
right anterior chest wall (sharp force trauma). A6: linear abrasions and linear
superficial incised wounds of the left forearm (both blunt and sharp force
trauma). A circular depressed skull fracture of the right parietal bone. An
incised wound of the upper and middle lobe of the right lung, with 200 ml of
blood in the right chest cavity. Contusions (bruising) of the right parietal and
occipital lobes of the brain, with brain swelling.
[7] Dr Morat concluded that the cause of death was blunt force head injur y and
[7] Dr Morat concluded that the cause of death was blunt force head injur y and
a penetrating incised wound of the chest. Dr Morat testified that no injuries were
present on the deceased’s back, despite Mr Mosinki’s evidence that the
appellant struck the deceased repeatedly on his back with an axe. When asked
about this discrepancy, Dr Morat confirmed that if the deceased had been struck
with an axe on his back, she would have noted such injuries. A circular
depressed skull fracture is consistent with being struck by a rounded instrument
such as a knobkerrie, and is not consisten t with an axe, which typically
produces a linear fracture or ‘slot’ fracture. The incised wounds (A4 and A5)
were caused by an instrument with a cutting edge, most probably a knife. An
axe, being a heavy instrument, would not typically produce superficial linear
abrasions (as in A6); it would more likely fracture bone or cause more
significant ‘chop wounds’. The injuries to the left forearm (A6) were consistent
with defensive wounds sustained while attempting to ward off blows.
[8] When the court recalled D r Morat for further clarification, she elaborated
that an axe wound is typically a ‘chop wound’, a combination of a laceration
(from the weight of the instrument) and an incised wound (from the cutting
edge). She reiterated that the circular depressed skul l fracture was inconsistent
with an axe, and that the superficial incised wounds on the forearm could not be
attributed to an axe given the absence of more significant injury to the
underlying bone.
The appellant’s version
[9] The appellant testified in his own defence. His version was that he was at his
grandparents’ home with accused 2 and accused 2’s friend, drinking alcohol and
listening to music. The deceased entered the house uninvited and attempted to
take a glass of beer from the tabl e. Accused 2 stopped the deceased, and the
glass fell and broke. He and accused 2 escorted the deceased out of the house.
Outside, the deceased threatened them, saying he would ‘get’ them, and
produced a panga. Approximately 5-10 minutes later, he and accu sed 2 decided
to go to Matsadi’s tuck shop to buy more beer, and he was carrying two empty
beer bottles in a plastic bag. As they approached Paulina’s yard (where Mr
Mosinki resides), they saw the deceased standing alone at the gate. The
deceased approache d them, uttered words to the effect of ‘here is this young
man’, and struck accused 2 on the forehead with a panga. He tried to stop the
fight verbally, but the deceased then chased him with the panga, and he ran
away. He did not see what happened thereaft er, and at no stage did he assault
the deceased or possess an axe or any weapon.
The co-accused’s version
the deceased or possess an axe or any weapon.
The co-accused’s version
[1o] Accused 2 (Mr Nteo) testified that he and the appellant were alone at the
appellant’s home. There was no third person. When the deceased entered, the
appellant stopped him from taking the beer. Outside the yard, the appellant
demanded the return of a rosary from the deceased. The deceased struck the
appellant on the cheek with the flat side of a panga. Later, while walking to the
tuck shop, they fo und the deceased sitting with Mr Mosinki at Paulina’s yard.
The deceased stood up, produced a panga, and approached them. He stepped
between the deceased and the appellant, asking the deceased what he was doing.
The deceased struck him twice with the panga (on the head and on the left
wrist) and he fell to the ground. He picked up a stick lying in the yard and struck
the deceased twice on the head. At that point, the appellant came from behind
him and made a stabbing motion towards the deceased with somethi ng that
looked like a knife. The deceased then turned and ran away. He did not see the
appellant with an axe at any stage.
Evaluation of evidence
[11] The trial court was faced with three irreconcilable versions of the same
incident. Mr Mosinki’s evidence implicated both accused, but with material
contradictions and an ultimate concession that his evidence could not be
reconciled with the medical findings. The appellant claimed he ran away before
any fatal assault occurred. Accused 2 admitted striking the deceased twice with
a stick, but claimed the appellant inflicted the fatal stab wound.
[12] In convicting both accused, the trial court appears to have accepted that
they acted with common purpose. However, the difficulty is that the two
accused gave diame trically opposed versions of what occurred. As the
prosecutor correctly submitted in argument, ‘[t]he two accused’s versions are
two total different versions from one single incident. They differ from each
other on every single aspect.’
[13] The medical ev idence is particularly significant. Mr Mosinki’s evidence
that the appellant repeatedly struck the deceased on his back with an axe is
directly contradicted by Dr Morat’s finding that there were no injuries on the
deceased’s back. When confronted with this during cross -examination, Mr
Mosinki could offer no explanation, merely stating: ‘I do not know but I saw
him hitting him on his back.’
[14] Furthermore, Dr Morat’s evidence that the fatal chest wound (A5) was an
incised wound most probably caused by a kn ife, and that the circular depressed
incised wound most probably caused by a kn ife, and that the circular depressed
skull fracture was consistent with a knobkerrie rather than an axe, substantially
undermines the State’s case against the appellant. Mr Mosinki himself testified
that the appellant had no knife, only an axe. Accused 2, by contrast, admitted to
having a knife in his initial version, though he later denied this. The
probabilities favour the conclusion that the fatal stab wound was inflicted by
accused 2, not the appellant.
[15] The trial court’s judgment does not adequatel y address these fundamental
contradictions between the eyewitness evidence and the objective medical
findings. In particular, the court failed to consider the import of Dr Morat’s
evidence that no injuries were present on the deceased’s back; the circular
depressed skull fracture was inconsistent with an axe; and the chest wound was
consistent with a knife, not an axe.
[16] The appellant’s version that he ran away when the deceased chased him
with the panga is not inherently improbable. Mr Mosinki himself t estified that
the appellant left the scene through the gate while accused 2 jumped over the
back of the shack. This is consistent with the appellant having fled the scene, as
he claimed.
The credibility of Mr Mosinki
[17] Mr Mosinki’s credibility as a witn ess must be assessed against the well -
established principles in S v Sauls and Others, 1 where it was held that the trial
court’s findings on credibility are not immutable and may be overturned where
they are clearly wrong. In this matter, several factors point to the unreliability of
Mr Mosinki’s evidence. He was a friend of the deceased, giving rise to potential
bias. His statement to the police contained material differences from his oral
testimony. His evidence that the appellant struck the deceased on t he back with
an axe was contradicted by the objective medical evidence. His conflation of
‘stabbing’ and ‘hitting’ and his insistence that an axe and a knife are ‘the same
thing’ demonstrated a lack of precision in observation and recall. His evidence
regarding his location during the incident shifted from ‘outside next to the gate’
to ‘inside the yard, 12-15 metres from the gate’.
[18] In S v Mafaladiso and Others, 2 the Supreme Court of Appeal emphasised
that contradictions in a witness’s evidence do not necessarily destroy that
evidence, but the court must assess whether they are material and whether they
evidence, but the court must assess whether they are material and whether they
indicate dishonesty or merely faulty recollection. In this ca se, the contradictions
were material and went to the heart of the State’s case.
Common purpose
[19] The doctrine of common purpose requires that there be a shared intention
to commit the crime, and that each accused be present and actively associated
with the execution of the common design. Where co -accused give mutually
1S v Sauls and Others 1981 (3) SA 172 (A) at 180E-G.
2S v Mafaladiso and Others 2003 (1) SACR 583 (SCA) para 24.
destructive versions, it becomes exceedingly difficult to establish a common
purpose.
[20] In this case, the appellant denied any participation in the assault, while
accused 2 claimed the appellant inflicted the fatal wound. If accused 2’s version
is accepted, there was no common purpose, the appellant acted alone in stabbing
the deceased, while accused 2 merely struck him with a stick. If the appellant’s
version is accepted, he was not pres ent during the fatal assault at all. If Mr
Mosinki’s version is accepted, both accused participated, but his evidence is
fatally undermined by the medical evidence.
[21] In these circumstances, the State failed to prove beyond reasonable doubt
that the app ellant participated in the assault on the deceased, whether as a
principal actor or through common purpose.
Onus of proof
[22] It is a trite principle that the State bears the onus of proving guilt beyond
reasonable doubt. As was stated in S v Van der Meyd en and approved by this
court,3 the onus is discharged if the evidence establishes guilt beyond reasonable
doubt and the accused is entitled to be acquitted if it is reasonably possible that
he might be innocent.
[23] Where, as here, the State’s key witness gives evidence that is materi ally
contradicted by objective medical evidence, and where the co -accused give
mutually destructive versions, a conviction cannot be sustained. The cumulative
effect of the contradictions and the absence of corroborating medical evidence
for the appellant’ s alleged use of an axe creates a reasonable doubt that must
enure to the appellant’s benefit.
[24] The trial court misdirected itself in accepting Mr Mosinki’s evidence where
it conflicted with the medical findings, and in failing to appreciate that the
contradictions were material and went to the heart of the State’s case. The
conviction cannot stand.
The delay in the appeal
[25] I would be remiss if I did not address the inordinate delay in finalising
[25] I would be remiss if I did not address the inordinate delay in finalising
this appeal. The petition for leave to appeal wa s granted on 03 May 2018, yet
this matter did not reach the present panel until March 2026, a period exceeding
3S v Van der Meyden 1999 (1) SACR 447 (W) at 449f -h, approved in S v Hadebe and Others 1998 (1) SACR
422 (SCA) at 426e-f.
eight years. The delay appears prima facie to have occurred in the Office of the
Chief Registrar and was regrettably compounded by the failure of the previous
panel assigned by the Judge President to attend to the matter timeously.
[26] This court recently addressed an analogous dereliction in Ramasilo v S;
Malebatso v S 4, where petitions lodged in 2018 received no attention in the
Office of t he Registrar until 2024. This court held that accountability is the
hallmark of any efficient administrative process and that this standard assumes a
heightened duty of care when the administrative component is seized with
constitutionally enshrined rights including the right of access to courts and the
timeous processing of criminal appeals, reviews and petitions. A nonchalant
attitude by the identified role players cannot be condoned. It cannot be business
as usual. The conduct of the officials implicated in Ramasilo was found to be
prima facie serious misconduct, tantamount to defeating the ends of justice,
warranting referral to the Provincial Head of the Office of the Chief Justice and
to the South African Police Services for criminal investigation.
[27] The delay of over eight years in the present matter is equally inexplicable
and equally inexcusable. The failure to timeously process and enrol this appeal
in the Office of the Chief Registrar has resulted in the matter having to be
decided in March 202 6, when the conviction and sentence date from 2013 and
leave to appeal was granted in 2018. Whatever the outcome of the appeal on the
merits, this court must record its strong displeasure at such administrative
ineptitude, and direct that the matter be ref erred for investigation and
appropriate action in the manner directed in Ramasilo.
Order
[28] In the result, the following order is made:
1. The appeal against conviction is upheld.
2. The conviction and sentence imposed by the court below are set aside
and replaced with the following order:
and replaced with the following order:
“The accused is acquitted on the charge of murder.”
3. A copy of this judgment must be brought to the attention of the
Provincial Head of the Office of the Chief Justice, North West for
4Ramasilo v S; Malebatso v S (CAP 26/2024; CA 27/2024) [2024] ZANWHC 317 (19 December 2024) at paras
[22], [35]–[36].
investigation and appropriate ac tion in respect of the inordinate and
unexplained delay in the processing of this appeal in the Office of the
Chief Registrar; and, to the extent that the evidence so warrants, for
referral to the South African Police Services for criminal investigation.
_____________________________
A H PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT OF
SOUTH AFRICA
NORTH WEST DIVISION
MAHIKENG
I agree.
_____________________________
R D HENDRICKS
JUDGE PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION
MAHIKENG
Appearances
For the appellant: Adv T Makgatho
Instructed by: Legal Aid South Africa
Mafikeng
For the respondent: Adv K E Mampo
Instructed by: Director of Public Prosecutions
North West
Mahikeng