SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED
_________________
_____________________
DATE : 30 March 2026 SIGNATURE
CASE NO: CC79/2024
JUDGMENT: 30 March 2026
In the application of:
The State
Versus
Frederick Pieter Jacobus Botha
JUDGMENT
___________________________________________________________________________
Strijdom, J
1. The accused, a 44 year old male, was arranged in this Court on the following charges:
(i) Murder (read with Section 51(1) Act 51 of 1977).
(ii) Theft.
(iii) Section 3 of Act 60 of 2000 (Possession of a firearm without a license.
(iv) Section 90 of Act 60 of 2000.
2. On 22 July 2025 the accused pleaded not guilty on all the charges and denied that he
committed any offence.
3. The relevant minimum sentences and competent verdicts were explained to the
accused by the court at the outset of the case.
4. The state presented the evidence of 14 witnesses to testify viva voce and the defence
tendered the evidence of the accused and 4 witnesses. Several exhibits were handed
in during the trial.
FORMAL ADMISSIONS
5. The accused made formal admissions in terms of section 220 of the Criminal
Procedure Act 51 of 1977 (“the CPA:) which were read into the record. The formal
admissions were:
5.1 The identity of the deceased being FREDERICH CHRISTIAN COLYN VAN
TONDER;
5.2 That the deceased died on 29 November 2021 as a result of injuries which he
sustained on 29 November 2021 at or near the Marlbank Plots in the district of
Vanderbijlpark;
5.3 That the deceased sustained no further injuries from the time he sustained the
said injuries on 29 November 2021 until the conducting of the post mortem
examination on the body of the deceased on 30 November 2021;
5.4 That Dr M P Gobile conducted the post mortem examination on the body of the
deceased on 30 November 2021 and recorded his findings on the form GW7/15,
hereby handed in as Exhibit “B “;
5.5 That the cause of death of the deceased is correctly recorded as: MULTIPLE NDS
(UNNATURAL);
5.6 That a Toyota Hilux L DV with registration number H[...] was the motor vehicle of
the deceased mentioned in par 4.1 supra;
5.7 That the aforesaid motor vehicle was moved from the crime scene at the
Marlbank Plots area to the parking area at The Barrage South African Police
Station for further investigation;
5.8 That on 30 November 2021, Lt Colonel S J Grundling photographed presumed
gunshots at the rear window of the Toyota Hilux LDV with registration number
H[...] and damages caused by the presumed gunshots. The photographs were
taken with his private cellular telephone;
5.9 That on 30 November 2021, Lt Colonel S J Grundling attended the crime scene
where the alleged murder took place in an open veld near Dinokeng Primary
School and photographed a cellular telephone lying at the back of a t ree. The
photographs were taken with his private cellular telephone;
5.10 That on 21 April 2022 Lt Colonel S J Grundling compiled a photo -album of the
photos (Photos 1 – 24) that he took on 30 November 2021 with his private
cellular telephone;
5.11 That the content and correctness of the photo-album is not in dispute and may be
handed in as Exhibit “C“;
5.12 That the Samsung cellular telephone that was found lying at the back of a tree
close to the crime scene, was the property of the deceased;
5.13 That the cellular telephone number of the deceased was 0[...];
5.14 That on 30 November 2021 Cst L D Ndweni photographed the deceased as
found, in an open veld at or near Marlbank Plots (the crime scene), with bullet
wounds inside the motor vehicle with registration number H[...];
5.15 That Cst L D Ndweni compiled a photo-album consisting of 18 photos;
5.16 That the contents and the correctness of the photo -album is not in dispute and
may be handed in as Exhibit “D“;
5.17 That on 30 November 2021, Cst L D Ndweni conducted one Primer Residue test
on both hands of the deceased on the crime scene;
5.18 That one PR kit with serial number 12S1J035TF was used by Cst L D Ndweni;
5.19 That Cst L D Ndweni properly packed and sealed the exhibits separately to
prevent contamination;
5.20 That Cst L D Ndweni sealed the PR kit 12S1J035TF in a forensic exhibit bag with
unique seal number PAD001142361, after which the exhibits were booked at
Vereeniging LCRC as per SAP 459 No. 796/2021;
5.21 That on 13 December 2021 the sealed forensic bag with unique seal number
PAD001142361 containing a PR kit with serial number 12S1J035TF was hand
delivered to the Forensic Science Laboratory, Pretoria;
5.22 That on 10 January 2022, W/O M C M ehlape received one sealed evidence bag
with unique seal number PAD001142361 containing one sealed Primer Residue
Collection Kit with a unique number 12S1J035XX;
5.23 That the afore mentioned sealed PR kit was opened by W/O M C Mehlape and
contained two plastic containers marked 12S1J035RIGHT and 12S1J035LEFT
respectively, each containing a test sample;
5.24 That as a result of his analysis W/O M C Mehlape determined that the test
samples marked 12S1J035RIGHT and 12S1J035LEFT tested negative for
character gunshot residue;
5.25 That the test samples were not tampered with or contaminated from the time
when it was collected by Cst L D Ndweni and until it was analysed by W/O M C
Mehlape;
5.26 That the motor vehicle, a silver coloured Mahindra with registration number H[...]
belongs to the accused;
5.27 That on 30 November 2021 Serg W Van Rensburg attended a crime scene at
Marlbank behind Dinokeng Primary School and photographed exhibits found
amongst the trees near the crime scene;
5.28 That on 30 November 2021 Serg W Van Rensburg also photo graphed a
motorvehicle, a Toyota Hilux LDV with registration number H[...], and exhibits at
The Barrage police station;
5.29 That Serg W Van Rensburg compiled a photo -album of the photos (Photos 1 –
30) that he took on 30 November 2021;
5.30 That the content and correctness of the photo-album is not in dispute and may be
handed in as Exhibit “E “.
6. Further section 220 admissions in terms of the CPA were made by the accused during
the trial. These formal admissions were:
6.1 That Sgt Maphuting took over the crime scene from W/O Jack Mills on 29
November 2021;
6.2 That Sgt Maphuting did not find any firearms at the crime scene;
6.3 That Sgt Maphuting found one live rifle round and three empty rifle cartridges
inside the Toyota Hilux bakkie on the crime scene;
6.4 That Sgt Maphuting contacted all the necessary role players to attend to the crime
scene, such as LCRC and Forensic Pathology Services;
6.5 That Sgt Maphuting filled in the form to hand over the body of the deceased to
Forensic Pathology Services but that the time of death was erroneously written at
paragraph 16 as 00:49. That Exhibit “K”, the SAPS 180 form was handed in by
agreement;
6.6 That the body of the deceased was handed over to K G Motaung at 01:05;
6.7 That the live rifle round and the three empty rifl e cartridges were not sent to the
ballistic unit for analysis.
FACTS NOT IN DISPUTE BETWEEN THE STATE AND DEFENSE
7. The following facts, inter alia were not in dispute between the state and the defense:
7.1 That the accused and the deceased were together on 29 November 2021;
7.2 That the accused allegedly purchased 31 cattle from the deceased at R50 per
kilogram, with the final amount being R293 000;
7.3 That Daniel Marx transported the cattle from Lindley to FMC Auctioneers in
Vanderbijlpark;
7.4 That the accused and the deceased travelled together in the Toyota Hilux bakkie
of the deceased to FMC Auctioneers in Vanderbijlpark;
7.5 That the accused sold the cattle to Tripple J Farms (the evidence of JP
Oosthuizen is relevant here). The accused incurred a loss of R33 000 on this
transaction;
7.6 That the cattle were loaded by the driver of J P Oosthuizen at FMC Auctioneers
while the accused and the deceased were still present there;
7.7 That the deceased had not been paid for the 31 cattle before the accused sold the
cattle to J P Oosthuizen;
7.8 That the accused took the deceased to a locally known gravel road, referred to as
“die skelm paddies” durin g the trial, that ran next to a row of trees and between
two fields;
7.9 That the body of the deceased was discovered on that secret gravel road at
around 22h30 that night with gunshot wounds. He was found dead;
7.10 That the cellular telephone of the deceased was discovered the following day
amongst the trees about 5 meters from where the bakkie of the deceased was
found – vide: record 17 September 2025, p 67 l 3 - 9;
7.11 That the keys to the bakkie have never been found to this day – vide: record 17
September 2025, p 67 l 10 - 13;
7.12 That the accused phoned Johan Hattingh (“Hattingh”) at 18h18 to fetch him as he
was walking back to his plot, nr. 130, from the secret gravel road;
7.13 That the accused’s father, Riaan Botha Snr (“Botha Snr”) picked the accused up
along a stretch of road where he was walking home;
7.14 That the accused went to see Bennie Grundling and Danie Janse van Rensburg at
Grundling’s plot and arrived at 18h30;
7.15 That Sandra Botha had telephonic contact with the deceased during the day via
WhatsApp messages and voice notes – Exhibit “G1” and “G2”. That the contents of
these exhibits are not in dispute;
7.16 That Sandra Botha had telephonic contact with the accused during the evening of
29 November 2021 via telephonic conversations, WhatsApp messages and voice
notes – Exhibit “G 3” and “G 4”. That the contents of these exhibits are not in
dispute;
7.17 That the accused was the last person who saw the deceased alive.
7.18 That there were no other vehicles or persons on the secret gravel road at the time
of the shooting of the deceas ed – vide: record 17 September 2025, p 39 l 14 –
18;
7.19 That neither Daniel Marx, Willem De Beer nor Hattingh shot and killed the
deceased – vide: record 17 September 2025, p 58 l 19 – 25;
7.20 Nobody knew that the accused was taking the deceased to the secret gravel road
because they were alone – vide: record 17 September 2025, p 59 l 2 – 5;
7.21 That according to the ballistic evidence, three bullets had been found. One bullet
in the body of the dec eased and two bullets in the cabin of the bakkie. That the
Court can accept that at least three shots were fired – vide: record 17 September
2025. P 65 l 18 – 24;
7.22 That the shots were fired from the back to the front and/or from the left side of
the back to the right side of the cabin of the bakkie. That the shots hit the
deceased on the left side of his neck. The shots were fired through the back small
windows of the bakkie’s cabin – vide: Lt Col Botha evidence, record 17
September 2025, p 65 l 25 – p 66 l 12;
7.23 That the deceased was shot and killed while he was still seated in the driver’s seat
of the bakkie;
7.24 That the maps and measurements drawn up by the investigating officer were not
in dispute – vide: record 17 September 2025, p 66 l 16 – 23, Exhibits “S, S1 –
S3”;
7.25 That the ballistic reports and the contents thereof were not in dispute – vide:
record 17 September 2025, p 66 l 24 – p 67 l 2, Exhibits “R1 – R4”;
7.26 That the accused did not have a firearm licence to possess a .38 or a .357 firearm
or to possess ammunition of that calibre – vide: record 17 September 2025, p 93
l 19 – 25;
EVIDENCE PRESENTED BY THE STATE
8. Allistair Singo
He testified that he is a Live Case Supervisor at Netstar. In the records of Netstar he
found that a Toyota Hilux single cab with registration number H[...] was fitted with a
Netstar WIFI unit.
He extracted a movement report on 22 February 2023 of the said vehicle from 25
November 2021 at 18:12. The vehicle came to a standstill on the following place
Latitude – 26,774 84 and Longitude of 27, 759331, Marlbank, Vanderbijlpark Vide
(“exhibit “F2”).
Other applicable movements of the vehicle on 29 November 2021 are the following:
(a) Starting 29 November 2021, 14:15 Ardington, odometer 136209 km. Switching
off odometer 136381km. Total km 172, Time 2 hours 5 minutes.
(b) Starting 29 November 2021, 16:14 Vanderbijlpark, lock Vaal odometer 136381km.
Switching off 29 November 2021, 16:28. Emfuleni odometer 136391. Total km
10. Time 14:00.
(c) Starting 29 November 2021, 17:48, Emfuleni. Odometer 136391. Switching off
29 November 2021, 18:12, Marlbank Severn Avenue. Odometer 136408. Total
km 17. Time 24 minutes.
JACK MILLS
9. He testified that he is a police officer and on the night of 29 November 2021, he was at
Ingwe Lodge when he received a message at 22:30 on a police community forum
WhatsApp group. The message was posted by Willem de Beer, (exhibit “U”), asking
for help at Oscars Café about a shooting incident in the area. He was not on duty but
placed himself on duty and went to Oscars where he found Willem de Beer. De Beer
told him that the incident was not at Oscars but at a hidden road. He followed De Beer
to the scene. De Beer stopped in the hidden road and saw in the lights of his vehicle
down the road a white bakkie. He then moved to the white bakkie a small distance
away. He testified that it was raining softly and it was pitch dark. He used his vehicle’s
headlights as well as his cell phone light to see properly. He was asked to look at the
photos in exhibit “D” and he confirmed that photo 1 depicts the body inside the bakkie
as found; photo 3 the back window possible broken by bullets fired through it; photo
14 the right back side in cab. He also testified that that road is known as a “skelm
paadjie” and is used by the people staying around there. He stated that he found the
Toyota bakkie was stationed to the left side of the “skelm paadjie” as shown on photo
1. He phoned the police immediately and waited until they arrived and handed the
scene to sergeant Mphuting.
10. SANDRA BOTHA
She confirmed the WhatsApp messages between herself and the deceased (exhibit
“G1”), the WhatsApp messages between herself and the accused (exhibit “G3”) on the
day of the incident as well as the WhatsApp voice notes, (which she retrieved and
typed), between herself and the deceased (exhibit “G2”) and the WhatsApp voice notes
between herself and accused (exhibit “G4”).
She testified that the deceased was on WhatsApp the last time at 18:04. In the
WhatsApp messages, the deceased told the witness that he cannot come to visit her
WhatsApp messages, the deceased told the witness that he cannot come to visit her
after the cattle was sold and he received his money, because the agent, (the accused),
is driving with him to Vereeniging, (Vanderbijlpark), and then the agent must drive
back to Lindley and he (the deceased), must drive to Betlehem to bank the money.
Vide (exhibit “G2”) entry 29/11/2021 13:33.
11. JUAN PIERRE OOSTHUIZEN
He testified that he received a phone call from the accused on 29/11/2021 at 12:48,
advising him that he had calves to sell. The accused sent him a video of the calves.
He made a market related price offer for the calves, which was accepted by the accused
for 31 calves. They agreed that his driver will pick up the calves at FMC Auctioneers in
Vanderbijlpark, and that he will also pay when the calves are at his place. He paid the
money with an EFT payment the next morning at 6:47 into the accused’s account, in
the amount of R259 609,87.
On the same day, (30/11/2021), someone from the stock theft unit phoned him and
said they want to come and fetch the calves because Vleissentraal had not been paid
for them. He told them he had already paid the accused for the calves. He spoke to
the accused later, who told him: ‘ok (nee dis reg) let’s see what the procedure will be
further.’
12. JAN DANIEL JOHANNES VAN WYK
He testified that on 29/11/2021 he did security work for Gerrie Coetzee. Vide (exhibit
“V1” and exhibit “V2”. He was posted that night at plot 104 Marlbank. Vide (exhibit
“F5”). Gerrie Coetzee dropped him off at 17:30 and left to go back to Ingive Lodge.
He testified that he and Gerrie Coetzee sent each other WhatsApp messages. At 18:15
he heard four (4) gunshots in the direction of the trees. Theoville direction. Vide
(exhibit “F5”). He then sent a voice WhatsApp message to Gerrie Coetzee at 18:16.
Vide (exhibit “J”). The rest of that day he did not hear anything from Gerrie again. He
stayed at his post. He further testified that Willem, vide (exhibit “U”), drove around in a
bakkie from Oscars. At one stage he came out of the “skelm” road and drove past him
in the direction of the hanger. This person took the two-way radio of Florence and said
in the direction of the hanger. This person took the two-way radio of Florence and said
over the radio that he just drove past a bakkie where someone shot himself.
Mr Van Wyk never went to the scene of the shooting. He also testified that the four
shots were fired in quick succession.
13. JACQUES DE KOCK
He testified that he ate dinner at his grandparents’ house at Theovill on 29/11/2021.
He left the house to go home between 18:10 and 18:20. On the way to his vehicle, he
heard a shot being fired. He looked in the direction where the shot was fired and he
saw a white bakkie plus minus 500 meters away, across open veld, standing in the
road. He could not see properly but went inside the house to fetch binoculars. He
observed a person stepping around the white bakkie. He stood there checking for ten
(10) minutes and then went home. At this stage the person was still there at the
bakkie. He only heard one shot being fired.
14. DANIEL MARX
He testified that he is a farmer and doing transport of livestock. The deceased was well
known to him. On 29/11/2021 the deceased asked him at plus minus 12:30 to
transport cattle from Lindley to Vanderbijlpark. He did so and the next morning at plus
minus 6:45, he heard from Carel Olckers from Vleissentraal that the deceased had
been shot and killed.
15. DR MP GOBILE
Dr Gobile is the medical doctor who compiled the post-mortem report, (exhibit “B”).
He examined the body of the deceased on 30/11/2021. The chief post-mortem
findings made by him were “The body is of an adult white male with the history of the
deceased allegedly was found with gunshot wounds to the head (SAP 180 statement).
He testified that the cause of death was “multiple Gunshot wounds (Unnatural).
The external appearance of body and limbs are as follows:
1. “Entrance gunshot wound on the left sub-mandibular with collar of abrasions
measuring (1,5 cm x 1,5cm).
2. Exit gunshot would on the right side of the neck measuring (1cm x 1cm).
3. Entrance gunshot wound on the left posterior aspect of the left ear with collar of
abrasions measuring (0,5cm x 0,5cm).
4. Tangential gunshot wound on the left superior shoulder with collar of abrasions.”
16. COLONEL ANDRE BOTHA
He is a Lieutenant Colonel in the South African Police Service at the Forensic Science
Laboratory in pretoria. He has been attached to the Ballistic Section since 1999 as an
examiner of Forensic Ballistics. His expertise is not in dispute.
His affidavit and photos 1-9 was submitted in terms of section 212 of the Criminal
Procedure Act 51 of 1977 as (exhibit “O”).
He testified that on 4 May 2022 during the performance of his official duties he
attached a crime scene at SMD vehicle yard Hercules Sgt Fouche pointed out a white
Toyota bakkie with registration number H[...].
During the execution of his official duties at the crime scene, he found the following:
“5.1 Note that some interior parts of the vehicle were removed
5.2 A bullet defect was visible on the glass to the back of the driver’s seat (A1).
The glass fell out but the origin of the impact can be seen. The bullet was
fired from the back of the vehicle to the front and from left to right. The
bullet (A) stuck the door frame pillar (A2) and lodged inside a plastic cover.
See photos 2-6 photo 7 indicate a bullet defect on the glass at the back of
the passenger’s seat (B1). The shot was fired from the back to the front of
the vehicle. The bullet stuck the back of a metal bar inside the head rest.”
17. BENJAMIN GRUNDLING
He testified that the accused is known to him and there is no bad blood between them.
On 29/11/2021, he was cutting grass between 17:00 and 18:00 on his stand with a
tractor. He saw a Mahindra bakkie passing his stand and did not take cognizance of
the driver. Between 18:15 and 18:20, uncle Daan, who is working with him, came to
him to change a battery of a lawnmower. Mr Grundling saw the Mahindra again at
plus-minus 18:30, it turned into his yard and stopped. The accused got out of the
vehicle and said it was a hot day, and that he had loaded cattle. The accused was wet
and out of breath as if he had worked hard. He was also looking nervous. Uncle Daan
asked the accused why he was wet and the accused said he had to wash himself after
he worked with the cattle. The accused then said that he was looking for uncle Daan to
discuss the patrols of the neighborhood watch that they both belong to.
He further testified that the accused then said he cannot understand why a person can
be so afraid to drive with cash, and he showed the person the safer road through the
agricultural lands, (he referred to Christiaan, the deceased). The accused explained
that the deceased sold cattle to him.
Mr Grundling further testified that they discussed the pros and cons of different
firearms. (9mm pistol and 38 revolver). He saw a 9 mm pistol in the possession of
accused. The next day, in the morning (6:00-7:00), the accused phoned him and said
that the guy he bought the cattle from, had been shot.
18. DANIEL JACOBUS J VAN RENSBURG
He testified that the accused is known to him. On 29/11/2021 he took a battery to his
neighbour to charge. The accused then arrived with his father’s Mahindra bakkie and
wanted to discuss the patrols of the neighborhood watch. He asked the accused why
he is so wet and the accused explained that he had loaded cattle and had to wash the
mud off him. The accused was nervous which he found strange. They spoke about
firearms and the accused asked if he heard shots and he said no, he was in the store.
The accused did have a 9mm pistol.
19. CAREL PETRUS FRANCOIS OLCKERS
He testified that he knew the accused and the deceased. During the time of the
incident, he was working at Vleissentraal Livestock Company. They had a project
where they helped people by selling stock to them on auction, the person must add
where they helped people by selling stock to them on auction, the person must add
value, (feed), to the stock and then the stock was sold again at the auction. The client’s
debt was then deducted from the selling price and the profit paid to him. The
deceased bought 44 calves from Vleissentraal on 22 and 23/11/2021, and owed them
R362 027,46. This money was paid out of the estate of the deceased.
He saw the transporter of the cattle and the deceased at Arlington SAPS, moving
livestock on 29/11/2021 and on 30/11/2021. After he had gone to the mortuary to
identify the body of the deceased, he tried to phone the accused, but he did not get an
answer. He testified that if a client got a better price selling the stock to someone else,
they would not stand in his way to sell.
20. JOHAN DEWALD HATTINGH
He was a general worker, previously in the service of the accused. He did make a
statement on 1/12/2021, corroborating the version of the accused. (Exhibit “P1”). On
1/8/2023, he made a new statement, (exhibit “P2”), wherein he changed his version
about what happened on 29/11/2021 at the residence of the accused when he was still
employed by the accused. He stated that he was coerced by the accused and
threatened to make the first false statement. He also made a statement on 6
September 2023, (exhibit “P4”), about a telephone conversation he heard the accused
had.
He lastly made a statement on 28/9/2023 (exhibit “P3”), denying that he went to the
cold room, that he took out a cooler bag from the cold room and handed it to the
accused at the gate of the accused’s residence.
21. HENK HUMAN
He testified that he knew the deceased very well. He was a neighbour of the
deceased’s father. Before the funeral of the deceased, he phoned the accused and told
him not to attend the funeral of the deceased. He took the mother of the deceased to
Barrage police station as she wanted to talk to the investigating officer, (Fouche).
Fouche, later on came to Lindley to take a further statement. Fouche later contacted
him and asked if he knew where Hattingh was working, as he wanted to talk to him.
The witness contacted Francois Beckett and asked if he knew where he could find
Hattingh. He then traced Hattingh. Hattingh then said he wanted to make a statement.
Mr Human took Hattingh to Barrage SAP to make a statement. He did not know what
the statement was about.
22. GEORGE CHRISTIAAN FOUCHE
He is the investigating officer and testified about the investigation of the case.
23. ERNEST TEBOGO MPHELA
He testified that he is not in the police service anymore. During 2021, he was working
at the Cybercrime division of the police. He is the author of (exhibit “W”). He
downloaded the contents of the cellphone of the accused on a CD disk. He further
testified that only the Audio WhatsApp audio messages are available. At the time of his
downloading the files, no WhatsApp messages could be downloaded. No time can be
found for the WhatsApp messages on the download.
24. PM DE BEER
This witness is missing and his statement was handed in under an exception under the
hearsay rule (exhibit “U”).
He stated that he was a security officer at Oscars shop on 20/11/2021. He came on
duty at 18:00 that day. He patrolled every hour, to his employer and the employer’s
father’s house and then back to Oscar’s shop. At 22:30 he drove to Gerrie Coetzee’s
security offices on the Marlbank road, using the “skelm road”.
There he found the vehicle with the deceased on the inside. He drove to the security
offices and asked them to phone the police. He saw that the back window of the
Toyota Hilux was broken and the left window had a bullet hole in it. He met warrant
officer Jack Mills at Oscars shop and took him to the scene.
25. GERRIE COETSEE
This witness passed away and his two (2) statements were handed in under an
exception under the Hearsay rule. In his first statement, (A37, exhibit “V1”), he
mentioned that he has security personnel working for him. On 29/11/2021 at 17:50,
he dropped his personnel on the Marlbank road, and he then used the secret road to
go to Theoville Plots. He usually used this road to patrol and check crime in that area.
On this night he did not see any signs of crime or persons or vehicles on the road. He
arrived at his place at about 18:00 and at 19:16 he received a voice note from Van
Wyk, his employee, that he had heard gunshots at the trees. He asked Van Wyk about
the number of shots and on which side of the trees because on the far side of the
trees, is where Grundlingh lives. Van Wyk replied that it was four (4) shots and it was
in that direction. Van Wyk phoned him and said that Willem had informed him that he
saw a bakkie with a person on the inside full of blood. He then got into his vehicle and
drove in the direction of Theoville. On his way, at about 22:30, he passed the accused
in his Mahindra Scorpion on the tar read to Ardenworld.
At 23:47 the witness phoned the accused and asked him what is going on, because he
knew that accused was driving patrol. The accused answered that he does not know.
He then said to the accused that according to his information, it was a male. The
accused replied, “oh, okay”.
At 01:00 on 30/11/2021, he received a message from the accused saying “oom ek
gaan nou slaap, praat more”. He made a screen shot which he provided to Fouche, the
investigating officer. At 04:12, he received another message from the accused,
requesting news, “Enige nuus, oom”.
He sent a voice note to the accused at 04:25, advising that it was a white male had
been shot inside his bakkie. The accused phoned him at 05:17 and said that the
person who was shot was a friend of his. He also said that they had been together the
person who was shot was a friend of his. He also said that they had been together the
previous day and had sold calves at Hersa, (FMC Auctioneers).
He spoke to the accused again on the phone at 05:18, about the payment and the route
that the deceased took and that the accused accompanied the deceased and walked
home after he alighted from the deceased’s vehicle. In his second statement (A102
exhibit “V2”) he only mentioned that he had met with Fouche and went to show him
where he passed the accused in the Mahindra on 29/11/2021 at about 22:20. He also
stated that he saw a dark-haired woman in the Mahindra, but he did not know her.
EVIDENCE PRESENTED BY THE DEFENCE
26. The accused testified that the deceased was known to him prior to the incident. On
29/09/2021 he bought 31 calves from the deceased. They agreed on a price of R50-
00 per kg and that he would pay cash for the calves. The final amount payable to the
deceased would be R293 000.
Daniel Marx transported the cattle from Lindley where the deceased were staying to
FMC Auctioneers in Vanderbijlpark.
He testified that he travelled together with deceased in the deceased’s Toyota Hilux to
FM Auctioneers in Vanderbijlpark. He sold the cattle to JP Oosthuizen (Tripple J
Farms). The cattle were loaded by the driver of JP Oosthuizen at FMC Auctioneers
while the accused and the deceased were still present there.
He further testified that he accompanied the deceased to his house in the deceased’s
bakkie to collect a cooler bag with the money he had to pay the deceased. Before they
went to his house, he phoned Mr Hattingh to collect the cooler bag with the money in
his cold room and to wait for him at the gate. He fetched the cooler bag from Mr
Hattingh, and he then directed the deceased to drive to a locally known gravel road,
referred to as “die skelm paadjie” during the trial. He explained to the deceased that it
is safer to take “die skelm paadtjie” and it is a short route to take on his way back to
Lindly.
On their way to “die skelm paadjie” he opened the cooler bag and took out R7000-00
and put it in his pocket. He left the balance of the money in the cooler bag for the
deceased as payment for the cattle.
He directed the deceased to turn into “the skelm paadjie”. Shortly after the deceased
He directed the deceased to turn into “the skelm paadjie”. Shortly after the deceased
turned into “die skelm paadjie”, he instructed the deceased to stop, and he then
alighted from the vehicle and proceeded to walk back to his residence. On his way he
was picked up by his father, and they drove back to his residence.
He testified that after he arrived at his residence, he took his bakkie and went to Daan
van Rensburg. The next morning, he was informed that the deceased was shot and
passed away. He denied that he shot the deceased and that he influenced Mr Hattingh
to make a false statement concerning the black cooler box and the money.
27. HESTER SUSANNA BOTHA
She testified that she is the wife of the accused. On 29/11/2021 approximately 18:00
she went outside their house and saw Johan Hattingh sitting near the main entrance
gate. She asked him what he was doing there and he answered that he was waiting for
the accused to fetch a black cooler bag.
She further testified that the accused’s father, Johan Botha, arrived there and informed
her he is going to pick up the accused. He then left and came back with the accused
between 18:20 and 18:25. The accused later left and came back at 19:05. The next
morning, she heard that the deceased was shot.
28. SHOUKAT HUSSAIN KOLIA
Mr Kolia testified that he knew the accused for many years. During 2021 there was a
transaction between him and the accused in terms of which the accused would sell his
cattle and sheep for R300-000.00. The accused then sold the cattle and sheep and
wanted to send the money to him. He informed the accused that he must invest the
money and when he needs the money, he will request the money. There was a R200-
000.00 profit on the selling price. The accused later paid him R495-000.00. The
witness submitted two screenshots of the payments. On 25/01/2024 R400-000.00 was
paid (exhibit “Z1”) and on 3/2/2024, an amount of R99 950-000 (exhibit “Z2”)
29. MAPHATSWA EMANUEL LIBIYA
The witness testified that he is an employee of the accused. He has been working for
the accused for eleven years. He remembers a specific day when he was busy
cleaning the swimming pool on the premises of the accused. He can’t remember the
date and month. He saw Johan Hattingh came out of the garage with a cooler bag
which the accused used to put money in. He saw Johan Hattingh proceeding in the
direction of the gate and sat on a cement ball at the gate. According to him there was
money in that bag. After few minutes he heard the gate opening. He saw Johan
Hatting exiting the gate and handed the cooler bag to the occupant of a white van. He
testified that on the specific day the bag contained money. The bag never left the yard
without money. He later saw the father of the accused driving out of the yard. He
knocked off duty and do not know what later transpired.
30. CHRISTIAAN RUDOLPH BOTHA
He testified that he is the father of the accused. On 29 November 2021 at 18:10 he
was at the Supermarket to get airtime on his cellphone. He drove to the premises of
the accused and found Johan Hatingh sitting under a tree. It was approximately
between 18:15 and 18:20. Johan Hattingh informed him that he handed over the
cooler bag with the money to the accused and the accused left in a white vehicle. He
also informed Mr Botha that he must pick up the accused on a corner. Mr Botha then
decided that he would go and pick up the accused. When he arrived at the corner of
Roodeweg the accused wasn’t there. He drove in a northern direction and found the
accused. He asked the accused what he was doing there. The accused explained that
the deceased asked him if there wasn’t a shorter route back home. He asked the
accused how much money was paid to the deceased. The accused said that he paid
the deceased R293.000.00. The accused explained to him that where they stopped
with the deceased’s bakkie, in “the skelm paadjie”, he opened the cooler bag and asked
the deceased to count the money with him. When the deceased agreed there was
R300 000-00, he, the accused, took out R7 000-00 and put it in his pocket.
R300 000-00, he, the accused, took out R7 000-00 and put it in his pocket.
He testified that they drove back to accused’s house. Later the accused took his
father’s bakkie and went to uncle Daan. The next morning the accused phoned him
and informed him that the deceased was shot a distance from where he dropped off
the accused. The witness also testified about photos that were taken from the
premises of the accused. The photos were handed in as (exhibit “DD1”).
EVALUATUION OF THE EVIDENCE
31. In S v Shackell 2001(2) SACR 185 SCA it was held that “it is a trite principle that in
criminal proceedings the prosecution must prove its case beyond reasonable doubt
and that a mere preponderance of probabilities is not enough. Equally enough is the
observance that in view of this standard of proof in a criminal case, a court does not
have to be convinced that every detail of the accused’s version is true. If the accused’s
version is reasonably possibly true in substance the court must decide the matter on
the acceptance of that version. It is indeed permissible to test the accused’s version
against the inherent probabilities. It cannot be rejected merely because it is
improbable. It can only be rejected on the basis of inherent probabilities if it can be
said to be so improbable that it cannot reasonably possibly true.”
32. In assessing the evidence, a court must in the ultimate analysis look at the evidence
holistically in order to determine whether the guilt of the accused is proved beyond
reasonable doubt. This does not mean that the breaking down of the evidence in its
component parts is not a useful aid to a proper evaluation and understanding thereof.
33. In S v Chabalala 2003 (1) SACR 134 SCA it was decided that:
“The correct approach to evaluating evidence is to weigh up all the elements which
point towards the guilt of the accused against all those which are indicative of his
innocence, taking proper count of inherent strengths and weaknesses, probabilities and
improbabilities on both sides and having done so, to decide whether the balance
weighs so heavily in favour of the State as to exclude any reasonable doubt about the
accused’s guilt. The result may prove that one scrap of evidence or one defect in the
accused’s guilt. The result may prove that one scrap of evidence or one defect in the
case for either party (such as the failure to call a material witness concerning an
identity parade) was decisive but that can only be an ex post facto determination and a
trial court (and counsel) should avoid the temptation to latch on to one (apparently)
obvious aspect without assessing it in the context of the full picture presented in
evidence.
34. I am mindful of the basic principles to be applied when evaluating evidence. It is trite
that evidence must be weighed in its totality and that probabilities and inferences must
be distinguished from speculation and conjecture.
35. It was submitted by counsel for the accused in his heads of argument that “Regarding
the allegations by the State from the onset it can be seen that there were not much
aspects placed in dispute by the defence as can be see in the extensive admissions
being made in terms of section 220 Act 51 of 1977, no extensive cross-examination
done on the State witnesses and even no objection made to the handing in of
statements made by witnesses under the exception under the provisions of the Hearsay
Act (Law of Evidence Amendment Act 45 of 1988.”
36. The evidence of the State witnesses with the exception of Mr Hattingh was not
seriously consistent by counsel for the accused.
37. The state witnesses were truthful and credible. They did not elaborate their evidence in
any way to implicate the accused. None of them had any reason to falsely implicate the
accused as the perpetrator. The version of the state witnesses contained no inherent
improbabilities or material contradictions.
38. I have carefully listened to the evidence of the state witnesses, and taken cognizance of
their conduct and behavior when they testified and it is clear in my mind that their
evidence clearly has a ring of truth, I did not gain the impression that the witnesses
had come to falsely implicate the accused in the commission of the crimes. All the
State witnesses gave their evidence in a clear, concise and uncontradicted manner, and
in mu view were impressive witnesses.
39. It was argued by the defence that the court should not give any credence to the
evidence of Hattingh who made his initial truthful statement to the police, and which
was corroborated by the evidence on behalf of the defence. In the new statements he
attempted to incriminate the accused as having influenced him to lie and also having
intimidated him. It was argued that it appears as if Hattingh was traced and pursued,
through a witness from Lindsay, and pursued to change his statement to incriminate
the accused.
40. Mr Hattingh testified that the version he gave to the police in his affidavit was not true
– vide (exhibit “P1”) par 4 and 5. His explanation was that he was threatened by the
accused and told what to say to the police. He further testified that the accused told
him that he must remember who support him and provides for him.
41. Hattingh testified that he corrected the lies in his first statement (exhibit “P1”) of his
own accord because he could not live with the lies any longer. He made a second
statement to the investigating officer in which he have the version that was consistent
with his evidence in court – exhibit “P2”. The evidence of Hattingh is relevant to the
question whether there was a black cooler bag fetched or not.
42. It was argued by the State that Hattingh’s fear of the accused was understandable and
reasonable given that after he stopped working for the accused, he was still telephoned
almost weekly by the accused and reminded to stick to the version the accused told
him to give to the police. While Hattingh worked in Lindley, the accused sent one of
his employees to him in Lindley so that the accused could speak to Hattingh
telephonically. This was done under the guise that the accused had work on a truck or
some other vehicle that he wanted Hattingh to do. Hattingh agreed to go and do the
work but he never went through with it.
43. Hattingh had only finished standard 5 in school and did not progress further with any
education.
44. He gave a detailed and thorough account of the incident in a straight-forward manner.
Under cross-examination he was able to logically substantiate his evidence thereby
reinforcing it. He made a favourable impression on the court whose account was
truthful and reliable. He impressed the court as a good witness and there is nothing to
cast doubt on his veracity concerning the actual incident and subsequent events. His
evidence is also in conformity with the objective and common cause facts in this
matter.
45. The accused on the other hand did not impress me as a reliable witness. He
contradicted himself and his witnesses on material aspects. His version is also not in
conformity with the objective and common cause facts in this matter.
46. The timeline according to the evidence of the accused and the defence witnesses,
differs from the fixed timeline presented by the state. The timeline of the accused and
his witnesses are riddled with material contradictions and improbabilities as set out
below-
46.1 During his evidence in chief the accused testified and estimated that he and the
deceased stopped at his plot at about 18:05 to pick up the black cooler bag;
46.2 During cross-examination by the state the accused testified more than once when
asked about specific times that he was not sure or he was estimating the time but
he knew it was after 18:00.
46.3 The accused testified that he was back at his home at 18:20. He knew this for a
fact.
46.4 He testified that he phoned Hattingh when he walked into the secret gravel road.
He then contradicted himself and testified that he had phoned Hattingh at 18:18
but by that time he had walked quite a distance. He further testified that from
where he got out of the decease’s bakkie, he had walked 400 meters wen he
phoned Hattingh.
46.5 He testified that the deceased left him between 18:10 and 18:15.
46.6 He testified that Sandra Botha phoned him and asked him what time the deceased
had left him. He could not remember times but told her the deceased had left a
long time ago.
46.7 During cross-examination, the accused testified that he had told Sandra Botha
that the deceased had left him about 18:30.
46.8 According to exhibit “G4” in the voice note of 21:41 the accused had told Sandra
Botha that the deceased had left between 18:20 and 18:30. The accused then in
a voice note to Sandra Botha at 22:49, said that he had checked his call list to see
what time he had called Hattingh and that the deceased had left him precisely at
18:16. On a question by the court, the accused confirmed that the deceased had
left him at 18:16 and that it was the precise time.
46.9 The accused’s version is that he received the money from Mr Kolia as a loan to
run his farming business. He and Mr Kolia would share any profits made. Money
was paid to Mr Kolia by FMC Auctioneers. Mr Kolia confirmed the receipt of that
money and produced two proof of payments documents – (exhibit “Z1 AND Z2”).
Mr Kolia did not receive any other money from the accused before the
aforementioned two transactions. He was not aware of all the transactions that the
accused performed with the R300 000-00.
46.10 The accused testified that he and the deceased had fetched the black cooler
bag from the accused’s plot and on the way to the secret gravel road, he had put
the cooler bag with the money in it between him and the deceased and showed
the deceased the plastic packets filled with the money. He testified that the money
money was never counted because it was not necessary. The deceased trusted
him and they had done cash transactions before. During cross-examination, it
was put to the accused that Fouche testified that the accused had told him that he
and the deceased drove about 100 meters into the secret gravel road and there
the money was counted and the deceased left. This was denied by the accused.
the money was counted and the deceased left. This was denied by the accused.
46.11 In a voice note to Sandra Botha at 21:23 (exhibit “G4”), the accused also told
her that"... ons het die goed gechek, als was reg .. en toe het hy gewaai.."
46.12 During cross-examination of the accused, the court heard for the first time
that the accused and the deceased had done many cash transactions before.
46.13 Botha snr, farther of the accused, testified that the accused told him that
there was R300 000-00 in the bag and when they stopped on the secret gravel road,
the accused opened the cooler bag and they went through the packets of money and
counted it together.
46.14 Sandra Botha testified that during a conversation with the accused, he
informed her that she must not worry about the safety of the deceased because he
gave the deceased one of his firearms and she must not tell anyone about it. This
evidence was not disputed in cross-examination.
46.15 The accused testified that the deceased told him that a friend of his borrowed
his firearm to the deceased. The accused conceded that what he told Sandra Botha
about the firearm was not the truth.
46.16 The evidence of the defence witnesses does not corroborate the accused's
version.
46.17 Mapatsive Emmanuel Lebea in my view was not a honest and reliable
witness. He contradicted himself on material aspects and adjusted his evidence,
especially under cross-examination. His evidence does not corroborate the accused's
version.
46.18 Lebea was unable to recall the date of the incident but was apparently able to
clearly recall what happened on that day.
46.19 He testified that he was cleaning the swimming pool, and he saw Hattingh
came out of the garage with a cooler bag. He saw Hattingh proceeding to the gate with
the cooler bag and the bag had money in it. He later saw Hatting proceeding to a white
van outside the gate and Hattingh handed the cooler bag over to the occupants. He did
not see the occupant of the van.
46.20 Lebea conceded during cross-examination that the gate is completely
obscure by the structure between the pool and the gate. He later changed his version
and testified that he was able to see the gate because there was a glass passage that he
looked through to see the gate. He had to go through a gate at the swimming pool to
see through the glass passage.
46.21 Lebea denied that he told the police that he mentioned in his statement that
Hattingh handed the cooler bag over to the occupant in the van. When he was
confronted with par 2 of his statement (exhibit "BB") wherein he stated that Hatting
handed the cooler bag to the accused who was inside a white bakkie that was parked at
the gate, he gave another version.
46.22 Hester Botha, the wife of the accused, testified about the times that Hatting
had given the black cooler bag to the accused.
46.23 She testified that she was outside with Hattingh at the gate at 18:10. She
conceded that at 18:15 Hatting was in the kitchen with her. She testified that the
accused and his father returned at about 18:20 to 18:25. She conceded that she did
not know if the kitchen clock was set to the correct time.
46.24 According to this witness when the accused returned to his house he was
normal. She cannot remember that he had mud on his clothes, arms or legs. Her
evidence that the accused did not have to wash himself, was contradicted by the
evidence of Botha Snr who testified that the accused had cattle dung on his arms and
legs, that he washed off. The times that she gave were contradictory to the fixed times
established by the State.
46.25 In respect of the timeline testified to by Botha snr, it contradicts the fixed
times established by the State.
46.26 The only fixed time that he can state is that he loaded airtime on his cellular
phone at 18:10 at the supermarket and from the supermarket it is 5-8 minutes to the
accused's plot. He estimates that he arrived at the plot between 18:15 and 18:20.
46.27 He testified that when he picked up the accused, the accused was 400
meters away from where he and the deceased had allegedly stopped. He further
testified that the accused's hands and arms were full of cattle dung.
46.28 During cross-examination he conceded that (exhibits "CC1" and "CC2")
46.28 During cross-examination he conceded that (exhibits "CC1" and "CC2")
were not the tax invoices of FMC Auctioneers that related to the payment of the money
to Mr Kolia.
46.29 During cross-examination he was asked, whether a person could see the
front gate from the swimming pool through the glass doors and passage. He answered
that one would have to first move out of the gate at the swimming pool area and then
to the glass doors to see the front gate.
45.30 Botha snr testified that he stopped at the secret gravel road where the
deceased's bakkie was at 18:30, then he changed his evidence to 18:25-18:30.
46.31 He was asked during cross-examination what the accused had told him
about the money that he had given to the deceased. He testified that the accused told
him that there was R300 000-00 in the bag and when they stopped on the secret
gravel road, the accused opened the bag and they went through the packets of money
and counted it together.
46.32 He further testified that when a client is paid cash for a transaction, the client
has to sign for receipt of the cash.
46.33 Botha snr conceded that according to the evidence the accused was the last
person who saw the deceased alive.
46.34 It was put to the witness that he testified in answer to a question by the court
that a person cannot see the front gate through the glass doors from the pool and that
he was now changing his version to say that a person could see the front gate through
the glass door.
46.35 He testified that the deceased had not signed for the cash and that the
accused did not tell him anything about the deceased being in possession of a firearm.
46.36 Botha snr during cross-examination conceded that he and Lebea spoke
about Lebea's evidence that he gave in court and how the translation of his evidence
was incorrect.
46.36 The court subsequently, made an order that the evidence be transcribed and
sent to the chief interpreter together with a CD of the evidence. Counsel for accused
later placed on record that they were satisfied that there were no interpretation errors
found by the chief interpreter.
46.38 I reject the evidence of the accused and his witnesses in so far as their evidence
were not in accordance with the evidence presented by the State and the common
cause facts.
CIRCUMSTANTIAL EVIDENCE
47. It is trite that once a court is faced with circumstantial evidence it naturally flows that it
is duly called upon to draw inferences from the evidence thus presented.
48. The benchmark decision on how to deal with inferences, relating to circumstantial
evidence, is the case of R v Blom 1939 AD 188, where reference is made to two (2)
cardinal rules of logic which cannot be ignored. These are, firstly, that the inference
sought to be drawn must be consistent with all the proved facts and secondly, the
proved facts should be such that they exclude every reasonable inference from them
save the one sought to be drawn.
49. In R v De Villiers 1944 AD at 508-9 remarked as follows:
"The court must not take each circumstance separately and give the accused the
benefit of any reasonable doubt as to the inference to be drawn from each one so
taken. It must carefully weigh the cumulative effect of all of them together and it is only
after it has done so, that the accused is entitled to the benefit of any reasonable doubt
which it may have as to whether the inference of guilt is the only inference which can
reasonably be drawn. To put the matter in another way, the Crown must satisfy the
Court, not that each separate fact is inconsistent with the innocence of the accused, but
that the evidence as a whole is beyond reasonable doubt inconsistent with such
innocence."
50. In De Villiers supra at 508 it is said: "... even two particles of circumstantial evidence
though taken by itself weigh but as a feather - join them together, you will find them
pressing on the delinquent with the weight of a millstone."
51. Circumstantial evidence has on occasion been described as a chain, the links of which
consist of pieces of evidence. This is not correct as it implies that the chain will be
broken once one piece of evidence is rejected. It is better to compare it with a braided
rope as the strands break, the rope weakens and conversely, as strands are added, the
stronger it gets. The gist of the matter is that one piece of circumstantial evidence may
be inconclusive, but once other evidence is added, it gains probative force.
52. It was submitted by counsel for the accused that the inference that Daniel Marx Willem
Pieter de Beer and Gert Abraham Coetzee could have killed the deceased, is consistent
with the proved facts. It was further argued that the inference that one of them killed
the deceased does not exclude the inference that any one of them or the accused killed
the deceased.
53. The accused during cross-examination conceded that neither Daniel Marx, Willem de
Beer nor Hatting shot and killed the deceased.
54. I am of the view that, after careful analysis of all the viva voce and objective
documentary evidence, that the only reasonable and inescapable conclusion is that the
accused is the person who shot and killed the deceased. This inference is consistent
with all the proved facts. The evidence as a whole is beyond reasonable doubt
inconsistent with the innocence of the accused. The proved facts are such that they
exclude any other reasonable inference.
55. The inference that the accused shot and killed the deceased is based on the following
circumstantial evidence and common cause facts.
55.1 The accused purchased 31 cattle from the deceased on 29 November 2021
for the amount of R293 000,00;
55.2 Before the accused was paid for the cattle, the accused sold the cattle to
Tripple J Farms (the evidence of JP Oosthuizen).
55.3 The deceased was never paid for the cattle. If the deceased was paid there
was no reason for accused to kill the deceased. The deceased was killed to disguise
the fact that he was not paid for the cattle.
55.4 On 29 November 2021 the accused accompanied the deceased in the
deceased's Toyota bakkie and lured the deceased to a locally known gravel road known
as "die skelm paadjie".
55.5 The accused conceded, during cross-examination, that the deceased was
shot dead at 18:16 on 29 November 2021.
55.6 Given the fixed times presented by the evidence of the State, the inference is
inescapable that the deceased was shot between 18:12 and 18:16.
55.7 The accused testified during cross-examination that on 29 November 2021
the deceased left him between 18:10 and 18:15 in the "skelm paadjie".
55.8 The accused conceded that after he climbed out of the bakkie of the
deceased at the secret gravel road he saw the deceased drive further on the secret
road. He conceded that there were no other people or vehicles in the secret road at
that stage. He further conceded that he had a clear line of vision on the bakkie as it
drove away.
55.9 The body of the deceased was discovered in his bakkie on the secret road at
around 22:30 with gunshot wounds.
55.10 The cellular telephone of the deceased was discovered the following day
amongst the trees about 5 meters from where the bakkie of the deceased was found.
The keys of the bakkie have never been found.
55.11 Accused was the last person who saw the deceased alive.
55.12 The accused denied that he was the person that shot the deceased and that
he was close to the area where the deceased was shot.
55.13 Hatting was coerced by the accused to make a false statement concerning
the cooler bag with the money.
55.14 The accused lied to Sandra Botha that he gave the deceased a firearm to
protect himself.
55.15 The accused lured the deceased to the secret gravel road to make sure that
nobody saw him when he execute his plan.
55.16 The accused shot the deceased with a unlicensed firearm to make sure he
cannot be linked with the firearm.
55.17 The accused had a motive to kill the deceased as it was never his intention to
pay the deceased for the cattle.
55.18 The state witnesses had no motive and/or opportunity to kill the deceased.
55.19 Nobody knew that the accused was taking the deceased to the secret gravel
road because they were alone.
55.20 The accused wants the court to believe that the deceased drove away with a
cooler bag containing R293 000-00 and that the deceased just happened to be
attacked and robbed a short distance into the secret gravel road and within a minute or
two after the accused left him. This version of the accused is so improbable that it is
not reasonably, possibly true.
56. In conclusion, I find that on a consideration of the totality of the evidence that the
prosecution has discharged the onus to prove beyond reasonable doubt that the
accused did wrongly, unlawfully and intentionally killed the deceased.
PLANNING OR PREMEDITATION
57. The distinction between 'planning and premeditation' has been examined in some
detail in S v PM 2014 (2) SACR 481 (GP) para 36 where it was found that the concepts
were distinct from each other - premeditation referring "to something done deliberately
after rationally considering the timing or method of so doing, calculated to increase the
likelihood of success, or to evade detection or apprehension, while planning refers to a
scheme, design or method of acting, doing, proceeding or making which is developed
in advance as a process calculated to optimally achieve a goal."
58. In S v Taunyane 2018 (1) SACR 163 GT at par 30 it was decided that:
"The question now is whether or not appellant 'weighed-up' his proposed conduct
either on a thought -out basis or an arranged - in - advance basis, or whether or not
appellant rationally consider[ed] the timing or method of the killing, or prepared a
'scheme or design in advance' for achieving his goal of killing the deceased."
59. The following facts must to my mind, be taken into account:
(a) The accused bought cattle from the deceased but never paid for the cattle.
(b) The accused lured the deceased under false pretenses that he is going to
pay the deceased in cash, to a secret road where the deceased was shot and killed.
(c) The deceased was taken to the secret road by the accused to make sure that
nobody could see when he executes his plan.
(d) The accused used a unlicensed firearm to kill the deceased in order to make
sure that he cannot be linked to the firearm and or murder.
(e) It was never the intention of the accused to pay the deceased for the cattle.
The accused had a motive to kill the deceased.
60. I am satisfied that the state has proved beyond reasonable doubt that the accused is
guilty of murder committed in circumstances of planning.
THEFT OF CATTLE
61. It was submitted by counsel for the accused that the accused did not steal the cattle but
that the case became a civil matter, where the money must be claimed form the
accused.
62. I rejected the accused's version that he had paid the deceased in cash for the cattle. No
cooler bag filled with money was found in the vehicle of the deceased when it was
discovered at 22:30 on 29 November 2021.
63. It was conceded by the accused that the cattle was in the lawful possession of the
deceased and if someone took the cattle away from the deceased and sold the cattle to
another buyer then that person had the intent to permanently deprive the deceased of
the cattle.
64. I am of the view that the state proved beyond reasonable doubt that the accused under
false pretenses obtained the cattle from the deceased with no intention to pay for the
cattle and that he formed the intention to permanently deprive the deceased of the
cattle. I find the accused guilty of theft of 31 cattle.
POSSESSION OF A FIREARM WITHOUT A LICENCE (Section 3 of Act 60 of 2000)
65. According to the ballistic evidence, three bullets had been found. One bullet in the
body of the deceased and two bullets in the cabin of the bakkie of the deceased.
66. The state handed in two ballistic reports, referring to ammunition that was forensically
examined. Vide (exhibit "R3" and exhibit "O"). In (exhibit "R3") the finding in
paragraph 5 is that the bullet is of 38/357 calibre.
In (exhibit "O") para 6 the finding of Lieutenant Colonel Botha was the bullet that he
investigated is 9mm/38/357 calibre.
67. The 9mm firearm of the accused was not linked to the shots fired. The accused is
licensed to possess his 9mm firearm. However, I found that the accused must have
used a .38 or a .357 calibre firearm of which he is not in possession of a valid license
to kill the deceased. It is common cause that the accused did not have a firearm license
to possess a.38 or a .357 calibre firearm.
68. I conclude that the state proved beyond reasonable doubt that the accused was in
possession of a .38 or a .357 calibre firearm on 29 November 2021 without a valid
firearm license to possess such a firearm.
UNLAWFUL POSSESSION OF AMMUNITION (SECTION 90 OF THE FIREARMS CONTROL ACT NO 60 OF
2000)
69. I found that the accused was in unlawful possession of either a .38 or a .357 calibre
firearm without a valid license and in possession of ammunition of that calibre without
a license.
70. In the result the accused is found guilty as follows:
(a) Count 1:
Murder read with the provisions of section 51(1)(a) Act 51 of 1977;
(b) Count 2: Theft
(c) Count 3:
Possession of a firearm without a license (section 3 of At 60 of 2000).
(d) Count 4
Unlawful possession of ammunition (section 90 of Act 60 of 2000).
________________________
Strijdom JJ
Judge of the Hight Court, South Africa
Gauteng Division, Pretoria
Appearances:
For the applicant: Adv J Cronje
Instructed by: DPP PRETORIA
For the first respondent: Adv R van Wyk
Instructed by: H Badenhorst Attorney