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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: CAF 01/2025
Trial Court Case No: CC18/2021
In the matter between:
JOHANNES DEMCY DIELELE Appellant
and
THE STATE Respondent
Coram: PETERSEN ADJP, MATHLAPE AJ and MNYOVU AJ
Date heard: 17 April 2026
Delivered: This judgment was handed down electronically, circulated to
the parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 10h00 on 8 May 2026.
Summary: Criminal law –Appeal against conviction and sentence – Murder
read with s 51(1) of the Criminal Law Amendment Act 105 of 1997 – Unlawful
possession of firearm and ammunition in contravention of ss 3 and 90 of the
Firearms Control Act 60 of 2000 – Application for reinstatement of lapsed
appeal and condonation of late prosecution – Interests of justice and prospects
of success favouring condonation – Hearsay evidence – Law of Evidence
Amendment Act 45 of 1988, s 3(1)(c) – Admission of deceased witnes s’s
written statement and oral accounts to family members – Balancing of probative
value against prejudice – Hearsay directly identifying accused as perpetrator
admissible only where compelling indicia of trustworthiness beyond mere
unavailability of declarant – Court a quo misdirected itself in admitting hearsay
– Ballistic evidence – Murder weapon (7.65mm) not linked to appellant – Only
firearm associated with appellant (9mm) positively excluded as murder weapon
– Proof beyond reasonable doubt not dischar ged on circumstantial evidence
alone – Unlawful possession charges – No expert evidence establishing that
item recovered constituted a ‘firearm’ as defined in s 1 of the Act – Essential
element of offences not proven – Appeal against all three convictions and
sentences upheld – Appellant acquitted on all counts.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETERSEN ADJP (MATHLAPE AJ and MNYOVU AJ concurring):
Introduction
[1] This is an appeal by the appellant, Johannes Demcy Dielele (the
appellant), against the convictions and sentences imposed by the court a quo
(Mfenyana J) on 23 and 27 October 2023 respectively. The appellant seeks
reinstatement of his lapsed appeal and condonation of the late filing of the
notice of appeal and the late prosecution of the appeal.
[2] The appellant was convicted of murder read with s 51(1) of the
Criminal Law Amendment Act 105 of 1997 (Count 1), unlawful possession of a
firearm in contravention of s 3 of the Firearms Control Act 60 of 2000 (Count
2), and unlawful possession of ammunition in contravention of s 90 of the
Firearms Control Act 60 of 2000 (Count 3). He was sentenced to life
imprisonment on Count 1, f ive years ’ imprisonment on Count 2, and three
years’ imprisonment on Count 3, with the sentences on Counts 2 and 3 ordered
to run concurrently with the life sentence.
The application for reinstatement and condonation
Background to the delay
[3] Leave to appeal against both the convictions and the sentences was
granted by the court a quo on 27 October 2023. The appellant failed to
prosecute his appeal timeously and the appeal lapsed. He subsequently brought
the present application for reinstatement and condonation.
[4] The trial commenced in 2021 and concluded on 27 October 2023 when
the appellant was sentenced. Leave to appeal was granted on the same day. The
notice of appeal was filed woefully out time .1 The relevant documents were
only filed in April 2026, a delay of approximately two and a half years. This is
an inordinate delay that requires a thorough explanation.
[5] The appellant deposed to a founding affidavit in which he accounts for
the delay as follows. He was financially unable to instruct his legal team to
proceed with the appeal immediately upon the conclusion of the trial. His
family had been funding his legal fees throughout the trial and those funds were
exhausted. He elected to prioritise an application for bail pending appeal on new
facts (Case No. CAB 03/2022), believing that release on bail would enable him
to return to his employment as a Controller in the Technical Services
Department of the Ditsobotla Local Municipality and to raise the necessary
funds. That bail applicat ion was struck off the roll on 17 September 2024, one
of the stated reasons being that the notice of appeal had not been served and
filed and the appeal had accordingly lapsed.
1Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C–F.
[6] Following the striking off of the bail application, the appellant instructe d
his legal team to deal with the appeal. The reinstatement application was filed in
April 2026. The explanation for the period between September 2024 and April
2026 is less satisfactory , it amounts to a continuation of financial difficulties.
However, the appellant has shown that he maintained contact with his legal
representatives and was making efforts to fund them, including by way of
arrangements allowing them to act on a limited basis without full payment.
Legal principles
[7] The test for condonation and reinstatement is well -established. The
court must consider , the degree and cause of the delay; the adequacy of the
explanation; the prospects of success on the merits; the interests of justice,
including the liberty of the subject; and any prejudice t o the respondent. In
criminal matters, especially where liberty is at stake, the court will lean towards
granting condonation where the explanation is genuine and the appeal is not
without merit. Prospects of success is the weightiest factor.
[8] The explanation for the initial period of delay is acceptable. An
incarcerated person who lacks the financial means to prosecute an appeal for
which leave has been granted should not be deprived of that right solely by
reason of poverty. The explanation for th e delay between September 2024 and
April 2026 is less satisfactory, but the appellant demonstrated continued
engagement with his legal team and there is no suggestion of deliberate
delinquency or bad faith.
[9] The State has not identified any specific pre judice it would suffer from
reinstatement and does not oppose the application for condonation and
reinstatement. The trial record is intact, witnesses are known, and the matter can
be decided on the papers before us.
[10] The appeal has real and substantia l prospects of success . The interests
of justice, and the constitutional imperative that a man se ntenced to a life
sentence be afforded the appellate scrutiny for which leave was expressly
granted, strongly favour the grant of condonation.
[11] Condonation is accordingly granted. The notice of appeal is deemed
duly filed and the appeal is reinstated.
The main appeal against conviction and sentence
Factual background
[12] The appellant and the deceased, E[...] D[...] K[...], were in a romantic
relationship from approximately 2013. They had a child together, O[...]. By
June 2018, the relationship had deteriorated after the deceased apparently
discovered the appellant with another woman and a child bearing a resemblance
to the appellant. The deceased ended the relationship and changed her cellphone
number to avoid contact.
[13] On the evening of 4 August 2018, the appellant telephoned N[...] K[...]
(the deceased’s sister) and later spoke to C[...] K[...] (the deceased’s mother),
seeking to locate the deceased. He was asked to be alerted when the deceased
arrived home. Later that evening, the appellant drove to the K[...] home in
Verdwaal, Itsoseng. His arrival was noted by C[...] K[...]. The deceased and her
cousin, M[...] A[...] B[...] (‘D[...]’), had gone to the outdoor toilet. The appellant
followed them outside.
[14] Shortly thereafter, C[...] and N[...] heard D[...] screaming. They ran
outside. C[...] saw the appellant walking backwards from the direction of the
toilet towards hi s vehicle. She asked him what had happened; he did not
respond. He drove off, colliding with the gate as he left. The deceased was
found near the toilet with a gunshot wound to the right side of her head. She
was declared dead by paramedics. The post -mortem report by Dr Maleka
Samuel Letebele confirmed the cause of death as penetrating head trauma due to
gunshot to the head. The fatal projectile was discharged from a 7.65mm calibre
firearm.
[15] No eyewitness observed the actual shooting. Neither C[...] nor N[...]
saw the appellant in possession of a firearm at any time. D[...], who was with
the deceased at the toilet, had died in an unrelated accident before the
commencement of the trial. The State sought to introduce her account through
hearsay evidence. The appellant was arrested some days after the incident. A
9mm pistol and three rounds of 9mm ammunition were found in a school bag in
the vehicle in which he was travelling.
[16] The appellant did not testify and called no witnesses in his defence.
Issues for determination
[17] The following issues fall for determination . Whether the hearsay
evidence of D[...] was correctly admitted in terms of section 3(1)(c) of the Law
of Evidence Amendment Act 45 of 1988 . Whether, on the totality of the
evidence, the State proved the appellant's guilt on Count 1 (murder) beyond a
reasonable doubt . Whether the State proved the elements of Counts 2 and 3
(unlawful possession of a firearm and ammunition) beyond a reasonable doubt;
and sentence, which falls away if the convictions are set aside.
Count 1: Murder
The hearsay evidence
[18] The cornerstone of the State ’s case on Count 1 was the evidence
admitted by the court a quo pursuant to its ruling of 6 September 2023. 2 The
court a quo admitted hearsay evidence in terms of s 3(1)(c) of the Law of
2Law of Evidence Amendment Act 45 of 1988 (the Hearsay Act), s 3(1)(c).
Evidence Amendment Act: 3 (a) the written statement of the deceased D[...] to
the police; and (b) the oral statements that D[...] had made to C[...] and N[...], to
the effect that the appellant had held the deceased in a “vice grip” and shot her.
Without this evidence, no di rect identification of the appellant as the shooter
exists on the record.
[19] Section 3(1)(c) permits admission of hearsay where the court, having
regard to the interests of justice, is satisfied that the evidence should be
admitted, taking into account: the nature of the proceedings; the nature of the
evidence; the purpose for which it is tendered; the probative value; the reason
why direct evidence is unavailable; prejudice to a party; and any other factor.
The exercise of this discretion requires a care ful balancing of probative value
against potential prejudice.
[20] With respect to the court a quo, the balancing exercise conducted in the
hearsay ruling was insufficient in the following respects. First, as to the oral
statements to C[...] and N[...], these were not contemporaneously recorded.
They were made by D[...], a relative of the deceased, herself under emotional
stress, to the deceased's immediate family members. The circumstances
attending the making of these statements do not provide the h allmarks of
trustworthiness that would warrant their reception over the objection of an
accused who cannot cross examine the declarant. In S v Ndhlovu 4 the Supreme
Court of Appeal held that:
‘[17] … a trial court must in applying the hearsay provisions of the 1988 Act be
scrupulous to ensure respect for the accused’s fundamental right to a fair trial.
Safeguards including the following are important:
First, a presiding judicial official is gener ally under a duty to prevent a witness
heedlessly giving vent to hearsay evidence. More specifically under the Act, ‘It is the
3The State v Johannes Dempsey Dielele (CC18/2021) ZANWHC 15 (Mfenyana J).
4 S v Ndhlovu 2002 (2) SACR 325 (SCA) at para [17].
duty of a trial Judge to keep inadmissible evidence out, [and] not to listen passively as
the record is turned into a papery sump of “evidence”.’
[21] Second, even in respect of the written police statement, the prejudice to the
appellant is s evere. D[...] is described as having been at the toilet with the
deceased when the shooting occurred. Her statement, if accurate, is the onl y
eyewitness account placing the appellant as the shooter. The accused is unable
to challenge her perception, test her proximity to the events, probe her state of
mind, or expose any motive to falsify. The Constitutional Court in Kapa v S 5
approved the ad mission of a deceased eyewitness account but emphasised that
the interests of justice calculus must be applied with care and is not satisfied by
unavailability alone. The prejudice here , total inability to contest the sole
identification evidence, is acute and was insufficiently weighed.
[22] Third, the court a quo found that the hearsay was “corroborated” by the
evidence of C[...] and N[...]. That finding misdirected the enquiry.
Corroboration for purposes of the s 3(1)(c) balancing must be independent
evidence going to the critical fact , that the appellant was the person who fired
the weapon. The evidence of C[...] and N[...] confirms only the appellant ’s
presence, his conduct in following the deceased, and his flight after the shot.
None of it independently establishes who pulled the trigger. So -called
corroboration of peripheral facts does not reduce the prejudice arising from the
inability to cross examine the sole identifying declarant.
[23] The hearsay evidence, both the written st atement and the oral accounts ,
should not have been admitted. The court a quo misdirected itself in admitting
it.
The ballistic evidence and its exculpatory effect
5 Kapa v S 2023 (1) SACR 583 (CC) at [29], [34]–[36].
[24] The ballistic evidence creates an independent and decisive obstacle to
the murder conv iction. The ballistic expert testified that the fired 7.65mm
cartridge case recovered from the murder scene at Itsoseng matched a 7.65mm
Pietro Baretta semi -automatic pistol , but that pistol was linked to a separate
Lichtenburg case number, representing a different police station and a different
jurisdiction. That weapon was never connected to the appellant.
[25] The only firearm found in the possession of, or associated with, the
appellant was a 9mm pistol discovered in a school bag in the vehicle in which
he was travelling at the time of his arrest. This was a different calibre weapon.
The ballistic expert confir med there is no link between the 9mm pistol and the
murder. During the hearing of this appeal, the State conceded in its heads of
argument that the bullet fragments recovered from the deceased ’s skull could
not be linked to any firearm belonging to or associated with the appellant.
[26] This concession is decisive on Count 1. The State ’s own concession
forecloses any forensic basis for concluding that the murder weapon was
associated with the appellant. This is not a case where the firearm is merely
unrecovered, the evidence positively establishes that the weapon which fired the
fatal shot was a 7.65mm pistol sourced from an entirely different case and
location, and has no proven connection to the appellant.
Whether guilt was proved beyond reasonable doubt
[27] The State ’s burden is to prove guilt beyond a reasonable doubt. 6 The
accused need only show that his version , or a version consistent with his
innocence, is reasonably possibly true. 7 Where the State's case depends on
circumstantial evidence, the two cardinal rules in R v Blom 8 apply, the inferred
6S v Shackell 2001 (2) SACR 185 (SCA) at 194F–I.
7S v Boesak 2001 (1) SA 912 (CC) at [24].
fact must be consistent with all proved facts; and the proved facts must exclude
every reasonable inference other than guilt.
[28] With the hearsay excluded, and the ballistic evidence pos itively
disconnecting the appellant from the murder weapon, the following evidence
remains. The appellant and the deceased had a troubled relationship; the
appellant sought the deceased out by telephone on the day of the shooting and
drove to her home; he followed the deceased and D[...] outside; he was seen
walking backwards from the direction of the toilet seconds after the shot was
fired; he drove away without responding to C[...]’s question; and no firearm that
fired the fatal shot was recovered from him or linked to him.
[29] While this evidence creates a strong suspicion, however grave , is not
proof beyond a reasonable doubt. The proved facts do not exclude every
reasonable inference other than guilt. Other inferences remain reasonably
possible. The appellant may have arrived at the scene to find the deceased
already shot and fled in a panic; an unknown third party may have fired the shot
and been at or near the toilet area. The State has not excluded these possibilities,
and the exculpatory ballistic evidence, conceded by the State itself, makes them
more than merely fanciful.
[30] The appellant’s election not to testify does not remedy this deficiency.
As this Court is bound to hold, the failure to testify does not supplement a
prosecution case th at has not discharged the burden of proof beyond a
reasonable doubt.
[31] The conviction on Count 1 cannot stand. The appeal against the murder
conviction succeeds.
Counts 2 and 3: Firearm and Ammunition
8 R v Blom 1939 AD 188 at 202–203.
[32] The convictions on Counts 2 and 3 relate to the 9mm pistol and
ammunition found in the school bag in the vehicle in which the appellant was
travelling. Two independent grounds require that these convictions be set aside.
[33] First, as demonstrated above, the 9mm pistol has no ballistic connection
to the murder. The murder weapon was a 7.65mm pistol from a separate case.
The only forensic basis on which the 9mm pistol was material to the
prosecution was the supposed link to the murder, and that link does not exist.
[34] Second, and independently, no expert evidence was led to establish that
the 9mm item found in the bag was a “firearm” as defined in section 1 of the
Firearms Control Act 60 of 2000. An offence under section 3 of that Act
requires proof that the item in question is a device designed or adapted to
discharge a projectile through a barrel by means of gas produced by burning
propellant material, or a component of such a device. Warrant Officer Seetso
described the item as a “9mm pistol ” but no ballistic expert testified to its
statutory classification. The essential element that the item is a “firearm” within
the Act has not been proved beyond a reasonable doubt.
[35] The convictions on Counts 2 and 3 are set aside on both grounds.
Sentence
[36] It follows axiomatically that since the convictions on all three counts are
set aside, the sentences fall away.
Order
[37] In the result, the following order is made:
1. Condonation for the late service and filing of the notice of appeal is
granted.
2. Condonation for the late prosecution of the appeal is granted.
3. The appeal is reinstated.
4. The appeal against the convictions and sentences on all three counts
succeeds. The order of the court a quo is replaced with the following
order:
“The accused is acquitted on Count 1 (murder, read with section 51(1) of the
Criminal Law Amendment Act 105 of 1997) ; Count 2 (unlawful possession of
a firearm); and Count 3 (unlawful possession of ammunition).”
_______________________________
A H PETERSEN
ACTING DEPUTY JUDGE PRESIDENT
NORTH WEST DIVISION, MAHIKENG
I agree.
_______________________________
H B MATLHAPE
ACTING JUDGE
NORTH WEST DIVISION, MAHIKENG
I agree.
_______________________________
B F MNYOVU
ACTING JUDGE
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the appellant: Adv. R.J. Nkhahle
Instructed by: G.A. Mokaa Attorneys
For the respondent: Adv. C Nontenjwa
Instructed by: Office of the Director of Public Prosecutions,
Mahikeng