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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED
21 May 2026
_________________
______________________
DATE SIGNATURE
CASE NUMBER: A41/2024
In the matter between:
MOHAPI THABO First
Appellant
HOLWORTHY GARLOND Second Appellant
and
THE STATE Respondent
Coram: DOSIO J, MOOSA J and COX AJ
Cell phone records (data generated automatically by a telecommunications system)
are admissible as evidence— even without formal authentication by a service
provider witness —provided that their reliability, integrity, and method of production
are sufficiently established through competent evidence; such records may
constitute real (not hearsay) evidence
2
_________________________________________________________
ORDER
_________________________________________________________
a. The appeal in respect to the convictions and sentences of both the first and
second appellants is dismissed.
_________________________________________________________
JUDGMENT
_________________________________________________________
DOSIO J:
Introduction
[1] This is an appeal in respect to the convictions and sentences of both
appellants.
[2] Numerous issues have been raised in this appeal, however in essence, the
issue raised by the first appellant is that he denies ownership of the cell phone
number 0[…] . In respect to the second appellant, the issue raised is that due
to the failure of the State in authenticating the cell phone records, the first step
to admissibility of the cell phone records is missing, and as a result, the cell
phone records remain inadmissible.
Background
[3] On 6 August 2013 the appellant and two others were indicted in the High
Court, Gauteng Local Division, on the following charges:
(i) Kidnapping;
(ii) Murder read with the provisions of section 51(1) of Act 105 of 1997;
(iii) Theft.
[4] On 11 November 2015, the appellants were convicted of all charges against
them.
3
[5] On 15 March 2016 the first and second appellants were respectively
sentenced to an effective 25 years direct imprisonment. The sentence
imposed in respect of the convictions having been ordered to be served
concurrently in terms of section 280 of the Criminal Procedure Act 51 of 1977
(‘Act 51 of 1977’). The sentences imposed were as follows:
a. kidnapping 5 years imprisonment,
b. murder 25 years imprisonment; and
c. theft 2 years imprisonment.
The court a quo ordered that 10 years of the 25 years imprisonment imposed
in respect to the first appellant would be served concurrently with the
sentences which were imposed on him on 1 June 2012 and 20 November
2013.
[6] The application for leave to appeal against their convictions and sentences
was dismissed by the trial court on 21 November 2016. The Supreme Court of
Appeal granted leave against conviction and sentence on 3 March 2021.
[7] This court will firstly deal with the merits pertaining to the convictions.
Ad conviction
[8] The counsel for both appellants are ad idem that there is no direct evidence to
link the appellant s to the commission of the offences and that the entire
State’s case is based on circumstantial evidence in the form of video footage
and cellular phone records. It is submitted by the appellants that
circumstantial evidence in the instant matter is not sufficient to sustain a
conviction on the charges preferred against the appellant s. It was further
argued that the Vodacom data printouts, which were not authenticated ,
remained inadmissible hearsay evidence.
[9] In the heads of argument filed by the counsel of both appellants, much was
made about the court’s reliance on the admissibility of exhibit ‘ E’ and ‘F’,
which are the statements made by Thabiso Mpye (‘Mpye’), who had entered
4
into a plea agreement with the State. The said plea agreement pertained to
this same incident . Mpye was sentenced to 20 years impr isonment. It was
argued further that exhibit ‘ E’ is an inadmissible confession made by a co -
offender.
[10] Both counsel for the appellants also contended that the court a quo erred in
relying on inadmissible evidence of the identification of the appellants on the
cameras at OR Tambo airport.
[11] Furthermore, that the court a quo erred in relying on the evidence of Mpye’s
pointing out.
[12] The counsel for the first appellant contended that the reliance on the
statements marked ‘E’ and ‘F’ influenced the court a quo to reach the
conclusion that it did. The second appellant`s counsel had the same
contention as reflected at paragraph 27 of the second appellant's heads.
[13] During argument before this court, the counsel for the first appellant was
referred to his own heads at paragraph 20, where it is stated:
‘
In its judgment on merit, the trial Court, relying on the decision of S v Litako & others
2014 (2) SACR 431 (SCA); [2014] ZASCA 54 (16 April 2014), S v Mhlongo. S v
Nkosi 2015 (2) SACR 323 (CC), found that the extra –curial admission and
confession of one is not admissible against another or the other accused.
Accordingly, the extra-curial confession statement, that is both exhibit E and F, will
not be relied on or used as evidence against the accused.’1
[14] This court also referred the second applicant’s counsel to the fact that the
court a quo made it clear that it did not rely on exhibit ‘ E’ and ‘F’. As a result,
the counsel for the second appellant abandoned this aspect.
[15] Both counsel for the appellants contended that the video footage was not
clear as per the judgment of the court a quo and that the court could not have
placed reliance on this.
1 Heads of argument of the first appellant page 5, para 20
5
[16] The two crisp issues for determination by this court are those highlighted at
paragraph [2] supra.
Common cause issues
[17] The following issues are considered common cause and therefore not in
dispute:
(a) That the deceased, Mr Uwe Gemballa, arrived in South Africa on 8
February 2010.
(b) That the body of the deceased was found buried in Wesfort cemetery in
the Atteridgeville area on 28 September 2010.
(c) That the cause of death was undetermined.
(d) That all accused closed their cases and did not testify.
Issues for determination
Admissibility of cell phone records
[18] This court will firstly dea l with the issue raised by the second appellant, which
if accepted as correct, would be disp ositive of the case against both
appellants. To an extent, the first appellant during argument, also referred to
the aspect pertaining to the admissibility of the cell phone records.
[19] The State relied on the Vodacom data and RICA documents to show that the
second appellant (accused 3) and the other accused, were at the airport when
the deceased was picked up, and that they were in Edenvale, where the
deceased was buried.
[20] When the State during the trial, as per the evidence of Lieutenant Colonel
Schnelle (‘Lt. Col. Schnelle’), referred to and relied upon the Vodacom data, it
was objected to by the defence. The State asked that the Vodacom data be
provisionally admitted as the witness Petro Heyneke (‘Heyneke’) would be
called to authenticate the correctness of the Vodacom data.
6
[21] On this basis the court a quo provisionally admitted the Vodacom dat a, such
as the alleged movement of the accused and their locations in relation to the
offences, based on the cell phone records and cell phone towers.
[22] In cross -examination, Lt. Col. Schnelle was asked whether there were
affidavits (referred to as s212 and 213 statements in terms of Act 51 of 1977),
for purposes of proving the admissibility of the cell phone data. Lt . Col.
Schnelle responded that he did not have such statements , but that he was in
discussion with Heyneke, of Vodacom, to submit the s212 statements. Such
statements remained outstanding and Heyneke was not called as a witness.
[23] Lieutenant Colonel Neethling (‘Lt. Col. Neethling’), who did the cell phone
tower mapping, to determine the location of the cell phone calls made by the
accused, conceded that the maps were provided to him by Vodacom.
[24] The State called Mr Budh ia as a witness . He was an engineer at Vodacom
and the Central Operations Manager for Southern Gauteng operations. His
evidence was relevant to the base stations at the airport, to the extent that he
was asked to consider calls inter alia made from cell phone number 0[...] . His
evidence is limited to his conclusion that on the account of the base station
coverage, two calls were made from that cell phone number from the
domestic arrivals South End and that the handset was at a stage inside the
international arrival terminals.
[25] Counsel for the second appellant contended that to rely on the Vodacom data,
and RICA documents, the authenticity and correctness of the contents thereof
had to have been proven by the State.
[26] It was contended that this can be done in one of two ways. The first is to call
an appropriate person from Vodacom to confirm the authenticity and
correctness of the data. Such a person to the knowledge of the State was
Heyneke, who was referred to in the trial and whom the State did not call. The
Heyneke, who was referred to in the trial and whom the State did not call. The
second is to make use of s15 of the Electronic Communications and
Transactions Act 15 of 2007 (‘ECTA’), which provides for the admissibility and
7
evidential weight of data messages. Although s15(4) of ECTA was available,
the State did not follow this route.
[27] It was contended by the counsel for the second appellant that Lt . Col.
Schnelle tried to overcome the absence of Heyneke as a witness by saying
that he was a cell phone expert . It was argued this could only mean that he
was experienced in reading cell phone records, which does not qualify him as
an expert. However, it was argued this does not assist the State because
even if he was an expert in reading and applying information contained in cell
phone data, the authenticity and correctness of the data must still be proved.
Lt. Col. Schnelle conceded that the Crime Management Centre (‘CMS’) of the
police analysed the cell phone data. It was argued that even though Lt . Col.
Schnelle named the persons responsible for the analysis, they were not called
as witnesses. It was contended by the second applicant `s counsel that the
evidence of Lt. Col. Schnelle did not deal with the authenticity and correctness
of the cell phone data as it did not fall within his expertise or knowledge.
[28] It was argued by the second appellant `s counsel that the State sought to
prove that cell number 0[...] , registered in the name of Hamunga Hamunga
belonged to the second appellant . This was denied by the second appellant,
as per the questions posed by the second appellant’s legal representative
during the cross-examination of the witnesses. Importantly, it was argued that
the number 0[...] was determined on the RICA form which was not
authenticated as correct and it remained inadmissible hearsay evidence.
[29] It was contended by the second appellant’s counsel that the requirement to
prove the authenticity and correctness of the cell phone records was a
constant reminder to the State during the trial and it remains unknown why the
required process was not followed. U pon closure of the State’s case, it was
once again pointed out on behalf of the second appellant ’s legal
once again pointed out on behalf of the second appellant ’s legal
representative that the State had promised that Heyneke and Carelse, (who
allegedly identified the accused as the person on the camera at the airport ),
should be called as witnesses, yet they were not called.
8
[30] The second appellants counsel is astounded that even though the State never
called these witnesses, the court a quo remarked:
“Well, you were told that you are at liberty to call those people as they are now
available to you”. 2
[31] It was contended by the second appellant`s counsel that if hearsay evidence
is provisionally admitted and the witness is then not called, then there is no
basis in law to condone by saying that the defence could call the witnesses.
[32] As a result , it was arg ued the court a quo misdirected itself i n relying on the
cell phone records and Rica documentation, as if the authenticity and
correctness thereof was proven.
[33] It was further contended that s34 of the Civil Procedure Evidence Act 25 of
1965 does not assist the State either.
[34] The second appellant`s counsel referred this court to the matters of S v BM
3
(`BM`), S v Cwele 4 (`Cwele`), S v Brown 5 (`Brown`) and Global and Local
Investments Advisors (Pty) Ltd v Fouche 6 (`Fouche`) to show that the
authenticity of electronic communication must be authenticated.
Evaluation
[35] It is trite law that the onus rests on the State to prove the guilt of an accused
beyond reasonable doubt. If an accused’s version is reasonably possible true,
he must be acquitted.
[36] In considering the judgment of the court a quo, this court has been mindful
that a Court of Appeal is not at liberty to depart from the trial court`s findings
2 Court transcript volume 22, page 1954 (lines 7 -9).
3 S v BM 2014(2) SACR 23 (SCA).
4 S v Cwele and Another 2013 (1) SACR 478 (SCA).
5 S v Brown 2016 (1) SACR 206 (WCC).
6 Global and Local Investments Advisors (Pty) Ltd v Fouche 2021 (1) SA 371 (SCA).
9
of fact and credibility, unless they are vitiated by irregularity, or unless an
examination of the record reveals that those findings are patently wrong. 7
[37] The second appellant in the matter in casu has raised the critical issue that
while Lt. Col. Schnelle and Lt. Col. Neethling may possibly be qualified as
experts in analysing cell phone data records, and that the cell phone data was
obtained in terms of s205 of Act 51 of 1977, the State still failed to call
Heyneke to authenticate the admissibility of the cell phone data printouts .
[38] The legal question arises as to whether the failure to call Heyneke renders the
entirety of the evidence of Lt . Col. Schnelle as inadmissible, or whether the
interests of justice permit the admission of such evidence notwithstanding this
omission. A further legal question which arises is whether cell phone records
should be classified as documentary or real evidence.
[39] In the matter of Kapa v The State
8 (‘Kapa’), the Constitutional Court held that:
‘Although the concept of a fair trial is a cornerstone of our criminal law jurisprudence,
not every minor irregularity vitiates the right to a fair trial.’ 9
and further
‘Section 35(3)(i) of the Constitution guarantees the right to adduce and challenge. In
Ndhlovu, the Supreme Court of Appeal clarified that section 35(3)(i) does not create
an automatic right to cross-examination. The Supreme Court of Appeal said that: the
Bill of Rights does not guarantee an entitlement to subject all evidence to cross -
examination. What it contains is the right (subject to limitation in terms of section 36)
to ‘challenge evidence’. Where that evidence is hearsay, the right entails that the
accused is entitled to resist its admission and to scru tinise its probative value,
including its reliability. The provisions enshrined these entitlements. But where the
interests of justice, constitutionally measured, require that hearsay evidence to be
interests of justice, constitutionally measured, require that hearsay evidence to be
admitted, no constitutional right is infringed. Put differently, where the interests of
justice require that the hearsay statement be admitted, the right to ‘challenge
7 See S v Francis 1991 (1) SACR 198 ( A) at 198 J - 199A and S v Hadebe and Others 1997 (2)
SACR 641 (SCA) at 645 E-F
8 Kapa v S (CCT 292/21) ZACC 1 2023 (4) BCLR 370 (CC); 2023 (1) SACR 583 (CC) (24 January
2023.
9 Ibid para 27
10
evidence’ does not encompass the right to cross - examine the original declarant’ 10.
[my emphasis]
[40] In line with the decision of Kapa 11, the court a quo ultimately had a discretion
to determine the ev identiary weight of the cel l phone data presented by the
State.
[41] Courts do not automatically require an employee from Vodacom, MTN or Cell
C to testify as to the cell phone data, as long as someone competent can
explain how the data was obtained and why it is reliable. This in essence
would complete the authentication aspect of such data.
[42] Lt. Col. Schnelle at the time of the trial, p ossessed twenty-five years`
experience in the South African Police Service (‘SAPS’), as well as twenty
years as a detective specialising in telecommunications investigations. Mr
Budhia, who is employed by Vodacom as a radio engineer, held a BSc
Engineering degree and had accrued seventeen years` experience in mobile
network infrastructure and data analysis. Lt. Col. Neethling, on the other hand,
had thirty-one years of experience in the SAPS and had attended a
specialised two - week training course on understanding GSM networks. Lt .
Col. Neethling has since applied this expertise in approximately 800 cases
involving cell phone data tracking. He has been exposed to the utilisation of
cell phone technology in crime investigations since 200 5 and obtained all the
information in terms of s8 of the Regulation of Interception of Communication
and Provisions of Communication Related Information Act 20 of 2002. Lt. Col.
Neethling obtained a judge`s aut horisation to intercept cell phone
communications. No expert evidence was led by any of the appellants to rebut
the evidence presented by Lt. Col. Schnelle, Lt. Col. Neethling or Mr Budhia.
[43] In the matter in casu, the value of the evidence depended on the credibility of
Lt. Col. Schnelle, Lt. Col. Neethling and Mr . Budhia. That evidence met the
Lt. Col. Schnelle, Lt. Col. Neethling and Mr . Budhia. That evidence met the
10 Ibid para 28 (reference made the matter of S v Ndhlovu [2002] ZASCA 70, 2002 (6) SA 305
(SCA) at para 16
11 Ibid
11
requirements of the law of evidence. Regarding the authenticity and integrity
of the cell phone data, it was never put to any of the witnesses that the cell
phone records had been tampered with.
[44] It is not an absolute universal requirement to have a dedicated cell phone
expert to prove the admissibility of cell phone records. The admissibility is
governed by the general principals of evidence. As a result , this court finds
there was no misdirection on the part of the court a quo to admit and rely on
the cell phone data records.
[45] Even if this court is wrong in this respect, a further legal question requires
some analyses, and this is whether cell phone records amount to real
evidence as opposed to documentary evidence.
[46] In the matter of Ex parte Rosch
12 (‘Rosch’), the court found that a computer
print-out from a telecommunication company, which reflects information which
was mechanically recorded by a computer pertaining to the time, the length of
a call and the number to which the call was made, constituted real evidence.
[47] The full court in the matter of Rosch
13 stated
‘Here the documents were generated by a computer without the assistance of any
human agency. It is therefore plain that the provisions of section 34(1) of the Civil
Evidence Act, or any other provisions thereof do not apply as no person could give
evidence in regard to the contents of these documents. A statement made by a
computer is not a statement by a person as envisaged in section 34 of the Civil
Evidence Act (see Narlis v South African Banks of Athens 1976 (2) SA 573 (A) at
577H and section 34(4) of the Civil Evidence Act). Neither of the respondents placed
any reliance on the Computer Evidence Act, 1983 (Act 57 of 1983) as a basis for the
admissibility of the evidence. The question arises whether the computer printout
evidence in the present case is excluded by the Act. In our view a reading of the
evidence in the present case is excluded by the Act. In our view a reading of the
statute makes it plain that the statute does not require that whatever is retrieved from
a computer can only be used if the statute`s requirements have been met. It is a
facilitating act not a restricting one. The common-law position prevails ie evidence
12 Ex Parte Rosch [1998] 1 All 8A 319 (W)
13 Ibid
12
tending to prove or disprove an allegation which is in issue is admissible unless a
specific ground for exclusion operates (see R v Trupedo 1920 AD 58 at 62; R v Katz
and another 1946 AD 71 at 78). As no specific ground does operate the provisions of
the Act are inapplicable in the present case. The submission on behalf of second
respondent that the ‘document’ should be admitted in terms of section 3(1)(c) of the
Law of Evidence Amendment Act, 1988 is without substance. Section 3(1)(c ) permits
the admission of “hearsay evidence” in certain circumstances. Section 3(4) of this Act
defined hearsay evidence as “evidence the probative value of which depends upon
the credibility of any person other than the person giving such evidence”. The
computer is not a “person” a subsection of the Act is therefore inapplicable in this
case. The computer is not a witness who stated what he did not himself know. The
printout is real evidence in the sense that it came about automatically and not as
result of any input of information by a human being. There is therefore no room for
dishonesty or human error. The printout in the present case is similar to the radar
diagram produced in the English case of The Statue of Liberty: Owners of the
Motorship Sapporo Maro v Owner of Steam Tanker, Statue of Liberty [1968] 2 All ER
195 (PDA) where such a document was admitted as evidence’.
14 [my emphasis]
[48] In the matter of S v Ndiki and Other s (‘Ndiki’) 15, the State sought to introduce
certain documentary evidence consisting of computer -generated printouts.
The accused object ed to the admissibilit y of these exhibits. As a result, the
court conducted a trial - within-a-trial to determine the true nature of the
printouts. The defence ar gued that the admission of such evidence would
offend the pr esumption of retrospectiv ity and that the documents failed to
comply with the ‘requirement of personality’, in that the information contained
comply with the ‘requirement of personality’, in that the information contained
therein had not emanated from a person and could not be regarded as
evidence given or confirmed by a person. The court held that due to the fact
that the admissibility of the evidence depended on the reliability and accuracy
of the computer and its operating systems and process, as opposed to the
credibility of a person, and the duty to prove such accuracy and reliability lay
with the state.
16 The court held further that computer printouts produced by a
computer that had sorted and collated information would be admissible under
s22 of this Act if the foundational requirements thereof had been satisfied .
14 Ibid page 328 to 329
15 S v Ndiki and Others 2008 (2) SACR 252 CK
16 Ibid [para 31-37] at 264 e- 266 e
13
The court held that since the information contained in these statements had
been sorted and collated by a computer to produce the exhibits in question,
such exhibits were admitted into evidence.
[49] The significant paragraph from the judgment in the matter of Ndiki 17 states
that:
‘To the extent that the computer through its operating system processed existing
information (exhibits D5 and D8) did calculations and ‘ created’ additional
information without human intervention, such as sequential numbers, the ‘creation’ of
cheques (exhibit D9) and the recording of the identity of the person who operated the
computer at any given time, such evidence in my view constitutes real evidence. As
stated, the admissibility of this evidence is dependent upon the accuracy and the
reliability of the computer, its operating systems and its processes as opposed to the
credibility of a natural person.’ 18 [my emphasis]
[50] The documents were acquired via a s205 warrant, in terms of Act 51 of 1977,
from the service providers and sent directly to Lt . Col. Schnelle who identified
them and testified about it. These documents were generated by a computer
and were not dependant on any human intervention. The court a quo correctly
found them to be authenticated.
[51] The matter of Ndiki confirmed the decision of Ndlovu v The Minister of
Correctional Services and Another 19 (‘Ndlovu’)
[52] The information on the cell phone printouts , which were presented in court,
are in a chronological order . The sequential information follows logically and
naturally. There was no reason why the court a quo had to doubt the veracity
and integrity of the Vodacom data printouts.
[53] The process of how the information is captured by the computer was
explained by Lt. Col. Schnelle and Lt. Col. Neethling and this court is satisfied
with the explanation given to the court a quo by both witnesses, albeit the
17 Ibid
18 Ibid para 37
17 Ibid
18 Ibid para 37
19 Ndlovu v The Minister of Correctional Services and Another [2006] 4 All SA 165
14
failure of the state advocate to call petro Heyneke. This court finds no
misdirection for the court a quo giving evidential weight to the Vodacom data
printouts, as corroborated by the evidence of Lt . Col. Schnelle and Lt. Col.
Neethling. In any event, the actual content of the documents was not in
dispute as the second appellant’s counsel conceded this in his address.
[54] As stated by the Supreme Court of Appeal in the matter of Firstrand Bank v
Venter
20 :
‘…the statements in question [which] were data messages was not placed in issue in
cross-examination. The certificate complied with the terms of ss (4) and once
produced was admissible against Mr Venter and served as ‘rebuttable proof’ of the
facts contained in the printouts of the bank statements. Such proof did not of course
extend to the underlying agreement, but it was sufficient to establish, prima facie, the
state and details of the account and the basis for each credit or debit. No rebuttal
was attempted by the defendant’ 21 [my emphasis]
[55] The second appellant’s counsel drew this court’s attention to the matter of S v
Brown
22 where the court dealt with images on a cell phone. The court held
that:
‘Given the potential mutability and transient nature of images in this matter which are
generated, stored and transmitted by an electronic device, I consider that they are
more appropriately dealt with as documentary evidence rather than ‘real evidence.’
[56] In the matter of Brown , a cell phone having photographs of the accused was
found which the state sought to introduce as evidence. The st ate led the
evidence of Lieutenant Colonel Linnen (‘Lt. Col. Linnen’), the commander of
the Co-ordination Centre, who testified that the images in question had been
transmitted to the cell phone two days before the shooting. The investigating
officer had requested Lt. Col Linnen to download the material, which he did.
The investigating officer then selected five images which he wished to utilise
The investigating officer then selected five images which he wished to utilise
in criminal proceedings against the accused. Due to the small size of the
images, in the downloaded file , he enlarged them for viewing purposes.
20 Firstrand Bank v Venter (829/11) [2012] ZASCA (14 September 2012):
21 Ibid para 16
22 S v Brown (note 5 above)
15
Accordingly, the images in question were downloaded from the phone,
reproduced in hard copy (paper) form and enlarged.
[57] The facts of the matter of Brown are distinguishable from the matter in casu,
in that in the matter of Brown , the images were captured by a human, thereby
showing human intervention, hence the classification of documentary
evidence as opposed to real evidence. In the matter in casu, the Vodacom
data printouts were acquired via a s205 warrant from the service provider,
namely, Vodacom and sent directly to Lt. Col. Schnelle, who identified them
and testified about it. The documents were generated by a computer and
were not dependent on any human intervention. The court a quo correctly
found them to be authenticated and real evidence.
[58] This is in line with the reasoning as per the learned author s CWH Schmidt
and H Rademeyer which stated that:
‘
How should the admissibility of data messages then be dealt with in practice? A
logical approach appears to us to be the adoption of a two-step procedure when a
court is confronted with evidence which may potentially be a data message. First, the
court must decide whether the evidence to be adduced is in fact a data message,
bearing in mind the definition thereof. Second, if the evidence to be adduced can be
classified as a data message, the court must be placed in a position to decide
whether it was created or generated by human conduct and can be printed or
otherwise viewed. If so, the rules relating to documentary evidence should be
utilised. If it was created or generated by an electronic device, with no human
intervention, the rules relating to real evidence must be utilised. [See Ndlovu v
Minister of Correctional Services supra 173] During the second step, the blurring of
the dividing lines between documentary and real evidence in the electronic age must
be borne in mind and the focus should primarily fall on detail regarding the way in
which the data message was created.’ 23
which the data message was created.’ 23
[59] During the evidence of Lt. Col. Neethling he was asked;
23 CWH Scmidt, Law of Evidence, Chapter 12 ‘Means of Proof: product of a device or apparatus –
Chapter 12.5 ‘Computer evidence: electronically recorded and transmitted information’ (12 -11 to
12-12, Issue 13, LexisNexis
16
`You cannot tamper with this data that you get from the cell phone providers is that
correct sir?
No Mlord, this data is computer generated and I would not have any access to that
data, to be able to manipulate it.’ 24
[60] Ultimately, the question this court must decide is whether the Vodacom data
in the matter in casu was obtained in a manner that violated any right in the
Bill of Rights and whether the admission thereof by the court a quo rendered
the trial of the appellants unfair. This court does not find that the reception of
such evidence in any way violated the rights of the appellants or that it
rendered their trial unfair. Computer generated evidence to prove either the
identity of the owner or the location of where such cell phone was, when a call
was made, can hardly be objectionable.
[61] Accordingly, this court finds that the Vodacom data printouts and the
documents depicting same were correctly admissible as real evidence.
Failure to testify
[62] The charges against both appellants are of a serious nature.
[63] The witness Mr Budhia testified that both the first and second appellant w ere
inside the terminal when the deceased arrived and not merely in the vicinity of
the airport. The evidence of Mr Budhia was not contested by the second
appellant. There is no reason why Mr Budhia cannot be regarded as an
expert. He was asked to look at the base station coverage at the OR Tambo
International airport in respect to cell phone number 0[...]. He stated that:
‘
Based on the call records the mobile was in the terminal building for most of the
time. There was one transaction where the mobile went outside to Johannesburg
International Airport sector 2. Then 30 seconds later the mobile was back inside the
terminal building’. 25
24 see Court transcript volume 19, page1696, lines 17-20
25 Court transcript volume 21, page 1908, lines 14 to 17
17
[64] The second appellant gave instructions to his legal representative not to ask
any questions to Mr Budhia. (see court transcript volume 21, page 1917, lines
4 to 5). Such evidence as a result remained uncontested. The second
appellant during the cross -examination of Lt. Col. Schnelle admitted that the
number 0[...], as reflected on exhibit ‘U3” belonged to him and that he made
those calls as reflected. The second appellant also never disputed he was at
OR Tambo International airport.
[65] It is a well- established principle in law that facts admitted by a party or their
counsel during a trial, including during cross examination, need not be proven
by the opposing party. This is because an admission is considered the best
evidence against the person making it. In the matter of S v Xoswa and others
26, the court held that if evidence is not challenged it may be accepted without
further ado. In the matter of President of the RSA v SARFU 27, the
Constitutional Court held that if a point in dispute is not challenged, or
admitted, in cross examination, that evidence is accepted as correct. The
principle ensures procedural fairness, preventing a party from being
ambushed later with a challenge to a point that was seemingly accepted
during the trial.
[66] It is trite law that statements put to the witnesses during cross examination is
not evidence. In S v Katoo
28, the court remarked as follows:
‘The other issue relates to the weight attached by the trial Judge to the defence
version which was put to State witnesses under cross -examination. …… As the
respondent failed to place any version before the Court by means of evidence, the
Court’s verdict should have been based on the evidence of the prosecution only.’ 29
[67] The court may only consider the statements that were put to the witnesses, as
evidence with any value, if those statements were repeated by the appellants
under oath.
26 S v Xoswa and others, 1965(1) SA 267 (C)
under oath.
26 S v Xoswa and others, 1965(1) SA 267 (C)
27 President of the RSA v SARFU, (CCT16/98) (1999) ZACC 11; 2000 (1) SA 1; 1999 (10) BLCR
1059
28 S v Katoo 2005 (1) SACR 522 (SCA) at 529e
29 Ibid page 529e
18
[68] In the matter in casu , the value of the evidence, particularly in respect to the
value of the Vodacom printouts, depended on the credibility of Lt. Col
Schnelle, Lt. Col Neethling and Mr Budhia. This court finds that the evidence
met the requirements of the Law of evidence. The appellants elected not to
give evidence in their defence, despite the overwhelming evidence against
them.
[69] In the matter of S v Mthetwa
30 , the Appellant Division, as it then was, stated
that:
‘Where… there is direct prima facie evidence implicating the accused in the
commission of the offence, his failure to give evidence, whatever his reason may be
for such failure, in general ipso facto tends to strengthen the State case, because
there is nothing to gainsay it, and therefore less reason for doubting its credibility or
reliability
.’ 31
[70] In the matter of Osman and Another v Attorney - General Transvaal 32, the
Constitutional Court held that our legal system is an adversarial one. Once the
prosecution has produced evidence sufficient to establish a prima facie case,
an accused who fails to produce evidence to rebut that case is at risk. The
failure to testify does not relieve the prosecution of its duty to prove guilt
beyond reasonable doubt , however, an accused always runs the risk that,
absent any rebuttal, the prosecution`s case may be sufficient to prove the
elements of the offence.
[71] An accused person has the right to remain silent and is under no obligation to
testify. In the matter of Boesak v The State
33, the Constitutional Court held
that:
‘The fact that an accused person is under no obligation to testify does not mean that
there are no consequences attaching to a decision to remain silent during the trial. If
there is evidence calling for an answer, and an accused person chooses to remain
30 S v Mthetwa 1972 (3) SA 766 (A)
31 Ibid page 635
32 Osman and Another v Attorney- General Transvaal (CCT 37/97) [1998] ZACC
31 Ibid page 635
32 Osman and Another v Attorney- General Transvaal (CCT 37/97) [1998] ZACC
33 Boesak v The State [2000] ZACC 25, 2001 (1) BCLR 36 (CC)
19
silent in the fact of such evidence, a court may well be entitled to conclude that the
evidence is sufficient in the absence of an explanation to prove the guilt of the
accused.’ 34 [my emphasis]
[72] The heads of argument of the first appellant states:
‘In issue is not the accuracy or reliability of the cellular phone data but whether the
first appellant was the user or can be linked to the implicated number – 0[…] .’ 35 It
was also disputed that the first appellant signed exhibit ‘Y1’ and that the
signatures on exhibit ‘Y1’ and the warning statement are not the same. The
first appellant’s identity number, namely, 7[…] , as well as the cell phone
number 0[…] appears on exhibit ‘Ý1’, as well as a signature. 36 The first
appellant’s identity number 7[…] , as well as a signature of the suspect
appears on exhibit ‘ÁJ’ 37 and page 2930. 38 The address of the first appellant,
namely, 1[…] M[…] street, Soweto, appears on exhibit ‘Ý1’, page 2930 and on
exhibit ‘ÁJ’.
[73] If the first appellant disputed that the cell phone number 0[…] , reflected on
‘Ý1’ was not his and that it was incorrectly depicted on that form , he could
have come to testify and explain that. The first appellant could also have
come to give a version why the same identity number appears on ‘Y1’, ‘AJ’
and page 2930.
[74] It was pointed out in argument by the first appellant’s counsel that the
signatures of the first appellant as reflected on exhibits ‘Yi’, ‘AJ’, pages 2912
to 2931 and exhibit ‘G’ (the admissions in terms of s220 of Act 51 of 1977) are
different. The first appellant never testified in this respect and neither did he
call his own expert to dispute that the signature on exhibit ‘Y1’ is not his. The
first appellant also never came to explain how the address of his mother,
namely. 1[…] M[…] Street, Soweto, came to be filled in exhibit , ‘Y1’, or the
warning statement.
34 Ibid para 24
35 First appellant’s heads of argument [page 12 paragraph 36]
34 Ibid para 24
35 First appellant’s heads of argument [page 12 paragraph 36]
36 Court record, volume 31, page 2749
37 Court record, volume 33, page 2919
38 Court record, volume 33
20
[75] The evidence of warrant officer Ramowedzi , states that the signatures on
exhibits ‘AJ’, which commenced on pages 2912 to 2930 of the court record,
were all signed by the first appellant in his presence
39, as well as exhibit
‘AJ8’.40 Warrant officer Ramowedzi stated that the signatures on exhibits ‘Y1’
and ‘AJ8’ 41were very similar. The signatures on the warning statement of the
first appellant, which appear from pages 2912 to 2931 are clearly different to
those on exhibits ‘Y1’ and ‘AJ8’. If warrant officer Ramowedzi stated he was
present when the first appellant signed both the warning statement reflected
at pages 2912 to 2931, as well as exhibit ‘AJ8’, then logic dictates that the first
appellant changed his signatures. The first appellant had a lot of explaining to
do, yet he remained silent.
[76] The cell phone records of the first appellant, for the cell phone number 0[…] ,
shows the following:
(a) that on 8 February 2010 from 17h17 to 19h16 he was in Pretoria CBD and
then travelled all the way to Midrand.
42
(b) That on 8 February 2010 from 20 h42 to 21h 23 he was at OR Tambo
International Airport, while talking to accused 2 and the second appellant. 43
(c) That on 8 February 2010 from 22h11 to 23h19 he was in Edenvale in the
vicinity of the house where the deceased was held and thereafter returned to
Midrand, while talking to accused 2 and the second appellant. 44
[77] The cell phone records of the second appellant , for the cell phone number
0[...], shows the following:
(a) that on 8 February 2010 from 19h56 to 20h28 he was in Midrand and then
travelled all the way to OR Tambo International airport while inter alia talking
to accused 2. 45
39 Court transcript, volume 21, lines 20 to 24
40 Court record, volume 33, page 2932
41 Court record, volume 33, page 2933
42 Court record, volume 31, page 2757, exhibit ‘Y3’, page 4 of 483
43 Court record, volume 31, page 2757, exhibit ‘Y3’, page 4 of 483
43 Court record, volume 31, page 2757, exhibit ‘Y3’, page 4 of 483
44 Court record, volume 31, pages 2757 to 2758, exhibit ‘Y3’ page 4 and 5 of 483
21
(b) That on 8 February 2010 from 20h34 to 21h54 he was at OR Tambo
International Airport while talking to the first appellant and accused 2 as well
as Marilyn Carelse. 46
(c) That on 8 February 2010 from 22h10 to 23h58 he was in Edenvale in the
vicinity of the house where the deceased was held and thereafter returned to
Midrand, while talking to the first appellant, accused 2 and Marilyn Carelse.
47
[78] This appeal turns on the quality and sufficiency of circumstantial evidence
upon which the court a quo convicted both appellants. The locus classicus in
this regard is the much- cited decision in R v Blom
48 , in which the court
described the ‘two cardinal rules of logic’ as follows:
'(1) The inference sought to be drawn must be consistent with all the proved facts. If
it is not, the inference cannot be drawn.
(2) The proved facts should be such that they exclude every reasonable inference
from them save the one sought to be drawn. If they do not exclude other reasonable
inferences, then there must be a doubt whether the inference sought to be drawn is
correct.’
[79] In the matter in casu, both appellants closed their case. The court a quo
correctly took cognisance of the case law regarding this issue and correctly
made a negative inference from the failure of the first and second appellant to
remain silent.
[80] The court a quo correctly found when dealing with circumstantial evidence
that both appellants, including accused 2, who is not before this court, all went
to OR Tambo International airport. This evidence is corroborated by
comparing all the cell phone records. The communication between both
appellants and accused 2 on 8 February 2010 cannot be a mere coincidence.
The appellants did not come and explain these coincidences when they had
the opportunity to do so.
45 Court record, volume 29, page 2510, exhibit ‘U3’, page 134 of 189).
46 Court record, volume 29, page 2510, exhibit ‘U3’, page 134 of 189
46 Court record, volume 29, page 2510, exhibit ‘U3’, page 134 of 189
47 Court record, volume 29, pages 2510 to 2511, exhibit ‘U3’ page 134 to 135 of 189
48 R v Blom 1939 AD 188
22
[81] The only evidence before the court a quo, given under oath, was that which
was adduced by the State.
[82] The court a quo correctly found that the State proved:
(a) that the cell phone number 0[…] did indeed belong to the first appellant
and that he used it.
(b) That the first appellant on 8 February 2010 from 20h42 to 21h23 was at
OR Tambo International Airport while talking to accused 2 and the third
appellant.
(c) That the first appellant on 8 February 2015 from 22h 11 to 23h19, was in
Edenvale in the vicinity of the house where Gemballa was held and thereafter
returned to Midrand, while talking to accused 2 and the second appellant.
(d) That the cell phone records of the second appellant, with cell phone
number 0[...], which was captured in exhibit ‘ U3’ place the second appellant
within the terminal building of OR Tambo International airport on 8 February
2010.
(e) That the second appellant on 8 February 2010 from 20h34 to 21h54 was
at OR Tambo International airport while talking to the first appellant and
accused 2.
(f) That the second appellant on 8 February 2010 from 22h10 to 23h 58, was
in Edenvale in the vicinity of the house where Gemballa was held and
thereafter returned to Midrand, while talking to the first appellant and accused
2.
[83] The court a quo correctly found that no other inference could be drawn but
that the appellants kidnapped Gemballa, took him to Edenvale, killed him and
buried him in a shallow grave.
[84] In light of the strong prima facie case against the appellants and in the
absence of any version to gainsay the State’s case, the court a quo correctly
found that the case of the appellants was not reasonably possibly true and
correctly found them guilty as charged.
23
[85] This court finds no misdirection on the part of the court a quo. N o grounds
exist on which the appeal of the a ppellants should succeed, In the result, the
appeal against the conviction is dismissed. This court sees no need to deal
with the sentences imposed.
Order
[86] The appeal in respect to the convictions and sentences of both the first and
second appellants is dismissed.
_______________________
D DOSIO
JUDGE OF THE HIGH COURT
JOHANNESBURG
I agree
________________________
C MOOSA
JUDGE OF THE HIGH COURT
JOHANNESBURG
I agree
________________________
I COX
ACTING JUDGE OF THE HIGH
COURT
JOHANNESBURG
24
This judgment was handed down electronically by circulation to the parties’
representatives via e -mail, by being uploaded to CaseLines and by release to
SAFLII. The date and time for hand- down is deemed to be 10h00 on 21 MAY 2026.
APPEARANCES
On behalf of the First Appellant: Adv M Milubi
Instructed by Legal-Aid SA
On behalf of the Second Appellant: Adv B Roux with Adv G Motuba
Instructed by Luando
Vorster Attorneys
On behalf of the Respondent: Adv R Du Toit with Adv G Market
Instructed by the Office of the
National
Director of Public Prosecutions