IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Appeal No: A 75 / 2026
In the matter between:
CHELRY SMITH APPELLANT
and
THE STATE RESPONDENT
Coram: Fortuin, J et Christians, AJ
Heard: 7 August 2026
Further submissions: 17 and 27 August 2026
Delivered: 4 September 2026
JUDGMENT
CHRISTIANS, AJ (FORTUIN, J concurring)
INTRODUCTION
[1] The appellant was convicted on 5 September 2024, in the Knysna
Regional court, on the following charges:
[1.1] Count 1: Murder, read with section 51(1 ) of the Criminal Law
Amendment Act 105 of 1997 (“the Minimum Sentencing Act”);
and
2
2
[1.2] Count 2: Robbery with aggravating circumstances, read with
section 51(2) of the Minimum Sentencing Act.
[2] Pursuant to the above convictions, the appellant was sentenced to life
imprisonment on Count 1, and 15 years’ imprisonment on Count 2 (both
mandatory minimum sentences in terms of the Minimum Sentencing
Act). The sentences were ordered to run concurrently.
[3] The appellant appeals against both convictions and the sentences
imposed in respect of each.
[4] The appellant pleaded ‘not guilty’ in the trial court and entered a plea
explanation in terms of section 115 of the Criminal Procedure Act (“the
CPA”). Because his plea explanation is relevant to the manner in which
the State went about proving its case, we start with the plea explanation.
APPELLANT’S PLEA EXPLANATION
[5] As stated, the appellant pleaded ‘not guilty’ to both charges.
[6] In his plea explanation, he made the following formal admissions:
[6.1] That the deceased was fatally injured on 23 December 2012 near
the N2, New Horizons, Plettenberg Bay.
[6.2] That the deceased sustained no further injuries during transport
to the forensic pathology laboratory.
3
3
[6.3] That the post -mortem conducted on 24 December 2012 be
admitted as an exhibit.
[6.4] That the cause of death was a stab wound to the chest
penetrating the left lung and heart.
[6.5] That photographs taken of the scene be admitted as exhibits.
[7] The Appellant further tendered the following version in defence of the
charges:
[7.1] He had known the deceased for a pproximately five months,
having met her at the Tavern where he worked as a bouncer. He
and the deceased had a casual, non- sexual relationship and they
kissed occasionally. At the time, he was in a permanent
relationship with Ms Margaret Liesing. The Appellant also
indicated that he had one prior disagreement with the deceased
on 27 November 2012, that resulted in him striking her with a
bottle and that he had been charged pursuant to this incident.
We mention this admission only for the sake of completeness,
but note that no evidence was lead at the trial in respect of the 27
November 2012 incident.
[7.2] On the evening of 22/23 December 2012 the Appellant attended
the Tavern at approximately 23h00 where he found the deceased
drinking with friends. After the Tavern closed, at approximately
00h00, they left together and sat under a tree alongside the new
footpath along the N2. They did not keep track of the time but
kissed and talked for a long while.
4
4
[7.3] While they were seated there, he suddenly felt a harsh blow t o
his left jaw, which he believed was broken as a result . He
jumped up, grabbed both his and the deceased’s cell phones,
placed them in his right trouser pocket, and ran to escape the
attacker. As he ran, he heard the deceased yell “do not kill him”.
He looked over his shoulder and recognise d the attacker as
somebody known to him as Ricardo. This person stopped
chasing him after the deceased shouted, “do not kill him”.
[7.4] He had seen that the deceased was standing with one other
person, concluded that she (the deceased) would be okay and
then continued to run home, where he slept.
[7.5] Later that morning, he returned to where he had last seen the
deceased. He first noticed one flip -flop lying a short distance
from the tree and, as he went closer, he noticed her body lying
against the municipal fence. She was still wearing her clothes,
and he did not see any wounds or blood on her. He saw the
handle of a knife lying in front of the deceased with no blade.
She was lying on her back, and he could see that she was
deceased. He panicked because people had seen her in his
presence, and they knew his history.
[7.6] He then went to the deceased’s house to inform her family that
he had found her body. When he arrived, he saw Ricardo exiting
the yard and one Monique was sitting on a rock outside the yard.
Being suspicious, he asked if the deceased was at home. Ricardo
5
5
said she was not home yet and walked over to Monique, saying
“hy loop soek na haar” (meaning “he is looking for her”).
[7.7] He then told his cousin, Ms Marlene Plank, that he had found the
deceased’s body and that people had seen him walking with her.
He believed people would think it he had killed her.
[7.8] He did not see Ricardo or Monique commit the offence , but
believe that they were responsible.
[7.9] He acknowledged that he made a statement to the police and that
he was not honest . He explained that he believed the
investigation officer, Mr Nomdoe, would not have believed him.
[7.10] He denied that he killed, robbed or assaulted the deceased.
THE STATE’S CASE
[8] The State led the evidence of the following witnesses:
[8.1] Mr Nomdoe, the investigating officer;
[8.2] Ms Liesing, the appellant’s girlfriend at the time;
[8.3] Mr Sidwell Tyatya, Ms Plank’s husband;
[8.4] Ms Plank;
[8.5] Ms Monique Augustus, the deceased’s niece and the person
referred to in the appellant’s plea explanation; and
6
6
[8.6] Ms Johanna Davids, one of the community members who
searched for and found the deceased’s body.
[9] We summarise the relevant parts of each witness’ evidence, in turn.
Mr Nomdoe
[10] Mr Nomdoe was called to the scene during the afternoon o f 23
December 2012, where he found the deceased’s body – she was wearing
a top but her pants was pulled down, with one leg completely
uncovered. The grass leading to the body was flattened, leading him to
believe that she been dragged. He found a knife handle and, according
to him, there was no blood on the handle.
[11] He made enquiries to find out with whom the deceased was last seen and
was informed that she had been seen with the appellant at the Tavern.
He got hold of the Appellant the next day and interviewed him. At that
stage, the Appellant was not a suspect, but a witness. During the
interview he noticed that the appellant’s right cheek was swollen and,
what look to him like an old wound, that was already healing.
Mr Nomdoe was not probed on the details regarding this wound.
[12] Mr Nomdoe testified that he would have asked the Appellant about how
he sustained the injuries but could not recall the Appellant’s explanation.
[13] Mr Nomdoe also read the Appellant’s statement into the record, the
contents of which may be summarised as follows:
[13.1] The explanation up until he received the blow to his face is
consistent with the plea explanation.
7
7
[13.2] He claimed that he was attacked by three black men. One of the
men yelled ‘baleka!’ (run!) at him, and he ran home. He heard
the deceased yell but ran away. He returned a short while later
but did not see the three men or the deceased. He then went
home. His head and mouth were both bleeding and his T-shirt
was covered in blood.
[13.3] Later that morning, he went back to where he had l ast seen the
deceased and found her body lying there, with a broken knife
next to her.
[13.4] He then went to Ms Plank’s house, where he told her and her
husband about what had happened. Later that day, he went for a
walk and, after thinking about what had happened, decided to go
to the police.
[14] Although the appellant was not, at that stage, a suspect in connection
with the deceased’s murder, Mr Nomdoe arrested the appellant upon
learning that there was an extant warrant for his arrest in connection
with an unrelated offence – no details were provided.
[15] Weeks later, Mr Nomdoe obtain ed a search warrant and found the
deceased’s phone under a mattress at the appellant’s home. He also
confiscated the T-shirt and black pants the deceased was wearing on the
night in question. No conclusive DNA evidence, or blood from the
deceased, was found on these clothing items.
[16] Although Mr Nomdoe did not arrest the A ppellant in connection with
the deceased’s murder, he was aware that the docket had been referred
8
8
for an inquest. He subsequently retired but was contacted by the
prosecutor in 2022 and informed that the matter had been enrolled.
[17] Under cross-examination, Mr Nomdoe confirmed that the appellant had
told him Ricardo was responsible for the deceased’s murder. Mr
Nomdoe’s evidence was that he “interviewed [Ricardo] and checked his
alibi and everything and find that he was not in that area of New
Horizon, or he wasn’t at Jobs Tavern that night”. No details were given
about Ricardo’s alibi.
[18] Mr Nomdoe further indicated tha t there was no blood on the knife
handle that was found at the scene. There were also no conclusive DNA
results from the samples taken from the deceased’s fingernails.
Margaret Liesing
[19] Ms Liesing confirmed that the Appellant came home early in the
morning of 23 December 2012 and that he complained about his jaw
being broken. The Appellant had told her that he was assaulted by four
men. She also confirmed that the collar of his T-shirt was covered in
blood.
[20] She found out later that day that the deceased had been killed and that
the police were looking for the appellant. When she found him at
Ms Plank’s house, she informed him so.
[21] Much was made of her initial indication that the A ppellant entered the
house through a broken window, but she later stated that she could not
remember and that she might have opened the door for him. She
9
9
explained that it was a long time ago and she really just remembers that
she saw him in the house.
[22] Ms Liesing testified that, whilst the A ppellant was in custody (for the
unrelated offence mentioned by Mr Nomdoe), he told her to get a phone
from under the mattress at Ms Plank’s house, which she did. She later
handed it over to Mr Nomdoe. We note that this aspect of Ms Liesing’s
evidence was carefully navigated so as not to induce Ms Liesing to give
self-incriminating evidence. In the circumstances, her version that she
handed the phone to Mr Nomdoe was not actively disputed.
[23] All the appellant told her about the night in question (as far as the
deceased was concerned) was that he was walking with her late that
night.
Mr Tyatya
[24] Mr Tyatya’s evidence was that the A ppellant arrived at his house early
in the morning on 23 December 2012, told him that his girlfriend was
‘missing’ and asked to lie down for five minutes. While the A ppellant
was lying down, Mr Tyatya went to a police friend of his. When he
returned home, he woke his wife and they tried to figure out who the
‘girlfriend’ was. Later that day, they learned that the deceased had been
killed. By then, the A ppellant had left their house and Mr Tyatya did
not see him again after that.
[25] Mr Tyatya indicated that he had drank heavily the previous night and
that he had a hangover the next morning. He did not recall if the
Appellant had any visible injuries when he arrived at the house.
10
10
[26] Mr Tyatya was referred to the statement he made on 23 December 2012
in which he stated that the A ppellant had, earlier that morning, told him
about the deceased’s death and that he was afraid everyone would think
he (the Appellant) had killed her. Mr Tyata attempted to distance
himself from the statement on the basis that he was intoxicated when he
gave it.
Marlene Plank
[27] She recalled that, on the morning of 23 December 2012, her husband
woke her to inform her that the appellant wanted to lie down for five
minutes and that the Appellant also wanted to tell them something.
[28] She went to see the Appellant, who told her that the girl he had been
walking with the previous night was dead. He also mentioned that he
had been attacked by five men. The appellant then went to sleep.
[29] Ms Plank confirmed that the Appellant’s jaw was swollen when she saw
him that morning.
Johanna Davids
[30] Ms Davids testified that, after hearing that people were looking for the
deceased, she looked along the path while en route to the shops. She did
not see the deceased during this initial walk.
11
11
[31] On her way back, she noticed blood on a pole and along the ground.
She followed the blood marks on the ground and found the deceased’s
body.
Monique Augustus
[32] Monique gave evidence that she saw the deceased at her grandmother’s
60th birthday party on 22 December 2012, as well as at the Tavern and
her house later that same night.
[33] She recalled seeing the appellant at the Tavern that night as well.
[34] She found out about the deceased’s death the next morning.
[35] Under cross-examination, when asked whether she knows Ricardo, she
asked which one because she knows many Ricardos.
[36] It was put to her that the appellant arrived at her house that morning and
saw Ricardo exiting the yard, whilst she was sitting on a rock. She
testified that there are no large rocks inside or outside her yard. She
denied being in the company of any Ricardo on 22 or 23 December
2012. She accordingly denied the version of the accused that was put to
her.
[37] She further stated that she was in a relationship at the time but not with
any Ricardo.
[38] Upon questioning from the Magistrate, she indicated that there was a
Ricardo who lived next door to one of her earlier boyfriends – i.e. before
12
12
2012. She stated that she is still with the boyfriend she had in 2012,
namely one Marshall.
[39] Upon further questioning from the Magistrate, she indicated that she
heard of the appellant’s accusation against her for the first time in court
that day. The Magistrate observed that she was very calm for somebody
hearing such an accusation for the first time.
[40] In further cross-examination, Monique was asked whether Mr Nomdoe
had ever asked her about her and Ricardo’s whereabouts. Monique
responded that she could not recall. She was then asked if the deceased
had been in a relationship with Ricardo Petersen, to which she said she
did not know anything about that. At this point, she indicated that she
knows Ricardo Petersen and that he used to live next door to her current
boyfriend, Marshall. She denied seeing Ricardo Petersen on 22
December 2012.
EVIDENCE FOR THE ACCUSED
[41] The Appellant’s evidence in chief was largely consistent with his plea
explanation.
[42] His evidence was that the reason he grabbed and put both phones in his
pocket was because, while they were sitting at the tree, the deceased had
given her phone to him to hold. In other words, on his version, he was
already holding both phones when he was hit.
13
13
[43] He said that the reason he went back the next morning was because he
knew Ricardo’s reputation and knew that something might have
happened to her.
[44] The Appellant’s evidence in relation to his interactions with Ms Liesing
and Ms Plank during the morning of 23 December 2012 is also largely
consistent with their respective accounts.
[45] The Appellant testified that he went to the police the following day,
being 24 December 2012. His explanation for giving a false statement
about his alleged attackers was that Mr Nomdoe did not know him and
he thought that Mr Nomdoe would not believe him if he mentioned
Ricardo.
[46] He further testified that, when he was later taken to have his DNA
samples taken, he mentioned the names of Ricardo and Monique to
Mr Nomdoe. His evidence in this regard was “ as hy my bloed laat trek
word, dan moet hy die twee persone se bloed ook laat trek ” (“if he is
going to have my blood drawn, these two people’s blood must also be
drawn”).
[47] He confirmed that he left the deceased’s phone under a mattress at
Ms Plank’s house.
[48] As to why he did not tell Ms Liesing or Ms Plank the truth, the
Appellant’s evidence was that:
[48.1] He did not want to tell Ms Liesing that he was with the deceased
the night before; and
14
14
[48.2] He told Ms Plank the story about the unknown attackers because
he knew her to be a gossip and would tell everybody.
[49] The Appellant’s injuries – both to his jaw and the cut on his head – were
corroborated by the J88. In his evidence, the Appellant could not
categorically explain the injury to his head but suggested that he might
have hit it against the tree when he was hit because he did not have the
injury before that night. His evidence throughout was that he and the
deceased were sitting by a tree when he was hit.
[50] After enduring vigorous cross -examination, the Appellant exclaimed
with apparent exasperation that ‘the murderers are walking outside’ and
that, if the DNA samples were properly tested, he would not have been
before the court.1
[51] That was the Appellant’s case.
BIOLOGICAL EVIDENCE
[52] It seems that the Appellant’s insistence during his evidence prompted
the state to draw and test DNA samples from Monique, Ricardo and the
Appellant.
[53] Notably, the record includes an email from a Warrant Officer Basardien
dated 15 March 2024, stating the following:
“1. There is a second blood stand on the knife that hasn’t been analysed
yet.
15
15
2. In order to conclusively report that the DNA on the knife belonged to
so to the deceased, the DNA profile of the second blood stand will need
to be obtained and comparison to the suspect and deceased needs to be
done.
3. We also require an alternative reference sample of the deceased…
4. The FSL will require approximately three weeks from the date of the
above mentioned sample is received, to complete the analysis of the
case.”
[54] Exhibit I, a biology report dated 21 May 2024 (i.e. more than two
months after the evidence was lead), recorded the following in respect of
Monique and the Appellant:
“4.8 The donor… ‘Augustus Monique’… was excluded as the donor of
the DNA obtained from the possible blood & possible high friction [on
the knife handle]”.
4.9. The donor… ‘Smith C’… was excluded as the donor of the DNA
obtained from the semen swab… and panty [taken from the deceased]’.
[55] It further appears that a DNA sample was taken from Ricardo Pieterse
on 26 May 2024, the result of which were the following:
“The donor ‘Pieterse R… was excluded as the donor of the DNA
obtained from the semen on the swab… and panty [taken from the
deceased]”.
16
16
[56] It remains unclear whether the second blood stain on the knife was
tested against the appellant’s or Ricardo’s DNA.
[57] The Appellant’s semen sample did not match the sample taken from the
deceased. It appears that, although the deceased’s blood was found on
the knife handle, the Appellant’s blood sample was not tested against the
second blood sample obtained from the knife handle. There is no
explanation as to why t his was not done. Instead, Monique’s blood
sample was tested and returned a negative or inconclusive result.
[58] Ricardo’s semen sample was also negative or inconclusive, but it is not
clear whether his DNA was tested against the blood found on the knife.
[59] As was testified by Mr Nomdoe, the samples taken from the deceased’s
fingernails yielded no conclusive results either.
[60] Before we consider the Magistrate’s judgment on the convictions against
the evidence, we briefly discuss the relevant legal principles applicable
in this matter.
THE LAW
[61] The Supreme Court of Appeal recently reaffirmed the general approach
to appeals in criminal proceedings thus:
“[9] It is trite law that a court of appeal’s power to interfere with a trial
court’s findings of fact and credibility is limited. Such findings are
presumed to be correct unless there is a demonstrable and material
17
17
misdirection by the trial court, or if the record reveals that the findings
are clearly wrong.”2
[62] Of necessity, the trial court’s findings must be evaluated against the
onus on the State to prove an accused’s guilt beyond reasonable doubt.
The proper approach to evaluating whether the State has made its case
was articulated by Nugent JA in S v Mbuli3:
“[57] It is trite that the State bears the onus of establishing the guilt of
the appellant beyond reasonable doubt, and the converse is that he is
entitled to be acquitted if there is a reasonable possibility that he might
be innocent (R v Difford 1937 AD 370 at 373, 383). In S v Van der
Meyden 1999 (2) SA 79 (W), which was adopted and affirmed by this
Court in S v Van Aswegen 2001 (2) SACR 97 (SCA), I had occasion to
reiterate that in whichever form the test is applied it must be satisfied
upon a consideration of all the evidence. Just as a court does not look at
the evidence implicating the accused in isolation to determine whether
there is proof beyond reasonable doubt, so too does it not look at the
exculpatory evidence in isolation to determine whether it is reasonably
possible that it might be true.”
[63] Nugent JA then went on to quote, with approval, the following dicta in S
v Hadebe:
4
“…Doubts about one aspect of the evidence led in a trial may arise
when that aspect is viewed in isolation. Those doubts may be set at rest
when it is evaluated again together with all the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
18
18
when evaluating evidence. Far from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But, once that has been done, it is necessary to step
back a pace and consider the mosaic as a whole. If that is not done, one
may fail to see the wood for the trees.”
[64] When the State relies on circumstantial evidence only, as in this case,
the test is even more stringent.
[65] The Supreme Court of Appeal in S v Reddy and Others
5 confirmed the
general approach to be adopted when evaluating circumstantial evidence
as follows:
‘In assessing circumstantial evidence, one needs to be careful not to
approach such evidence upon a piece -meal basis and to subject each
individual piece of evidence to a consideration of whether it excludes the
reasonable possibility that the explanation given by an accused is true.
The evidence needs to be considered in its totality. It is only then that
one can apply the oft-quoted dictum in R v Blom 1939 AD 188 at 202-3,
where reference is made to two 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 inf erence from them
save the one sought to be drawn.’ [Emphasis added]
[66] Where the circumstantial evidence is buttressed only by doubt in
relation to the accused’s own version, the following dicta by Nugent JA
in S v Vilakazi
6 is instructive:
19
19
“Where an accused person advances a false defence, as the appellant
did in this case, a court might ordinarily infer that the reason for doing
so is that he or she has no other defence. But on the ordinary logic of
inferential reasoning that inference could not properly be drawn if
another reason presents itself. The most that could then be said is that
he or she might have advanced a false defence for either of those
reasons. Needless to say an accused person in that position takes a
considerable risk. For if there is unchallenged evidence of all the
elements of the offence a court would be perfectly justified in accepting
the evidence. It is if there is no evidence on the issue that the onus that
rests on the state will accrue to the benefit of the accused for the gap in
the evidence could not be filled by an inference drawn against the
accused. That is not a matter of law but only a consequence of ordinary
inferential reasoning.” [Emphasis added]
IS THE MURDER CONVICTION JUSTIFIED BY THE EVIDENCE?
[67] It will be apparent from our summaries of the evidence that the State’s
case relied exclusively on circumstantial evidence.
[68] After receiving the biological reports into evidence, by agreement
between the parties, the Magistrate delivered her judgment on
4 September 2024, in which she found the Appellant guilty of murder,
read with section 51(1) of the Minimum Sentence Act and of robbery
with aggravating circumstances.
[69] Importantly, the Magistrate noted in her judgment that:
20
20
“On the conclusion of the State’s case including the reopening after the
defence case there was no direct evidence linking the accused to the
offence. None of the state witnesses saw the deceased in the company of
the accused on the night and/or morning of the incident…
It was the accused’s plea explanation which places the accused in the
company of the deceased on the early morning of the 23 rd December
2012…”
[70] The Magistrate rejected the appellant’s version that Ricardo and
Monique were the last people he saw with the deceased.
[71] The Magistrate then considered and rejected the following aspects of the
Appellant’s evidence:
[71.1] That he received a laceration to his head, ostensibly on the basis
that (a) it defies logic that he could have hit the back of his head
against the tree if he was hit from behind, and (b) that
Mr Nomdoe noted that the injury appeared to be old and healing.
In doing so, the Magistrate appears to have disregarded the
corroboration of the Appellant’s injuries by Ms Liesing and the
J88. The Magistrate also did not account for the fact that:
Mr Nomdoe saw the appellant on 24 December 2012, which was
more than 24 hours after the stated attack; Mr Nomdoe gave
evidence 12 years after the fact and appeared not to have made a
contemporaneous note of the injuries; Mr Nomdoe recalled the
appellant’s right jaw was swollen (it being common cause that it
was his left); Mr Nomdoe could not recall the Appellant’s
21
21
explanation as to how he had sustained the injuries. In the
circumstances, the Magistrate misdirected herself in accepting
Mr Nomdoe’s ipse dixit as conclusive proof that the Appellant’s
head wound was an old one.
[71.2] Having done so, the Magistrate failed to have proper regard to
the Appellant’s injuries when she evaluated his version that he
was attacked whilst sitting with the deceased and, thereafter, r an
away. Notwithstanding that his version as to the number and
identity of the attacker(s) has changed, the common thread to his
version, throughout, was that he was attacked and ran away. His
injuries support that version, and it was, therefore, necessary to
assess whether his version is reasonably possibly true in light
thereof.
[71.3] The Magistrate relied on Monique’s DNA having been excluded
as a basis to reject the Appellant’s version. She, however, did
not account for the fact that neither the Appellan t’s nor
Ricardo’s DNA was tested against the second blood sample
found on the knife handle. That Monique’s blood was not found
on the knife does not prove that the Appellant killed the
deceased, nor does it justify, without more, the conclusion that
his version is not reasonably possibly true.
[71.4] The Magistrate also drew a number of inferences that were not
supported by the evidence, including that the absence of any of
his DNA on the deceased, in light of his own version that they
were kissing and holding each other, is implausible. It is unclear
22
22
what inference the Magistrate sought to draw on this score –
perhaps that the Appellant took active steps to avoid his DNA
being transferred. The difficulty with this reasoning lies in the
fact that the DNA evidence led by the State was scant and
largely inconclusive. The Appellant’s clothing was tested for the
deceased’s blood, and those tests were negative or inconclusive.
Save for this, only his semen sample was tested against the
sample taken from the deceased. The Magistrate’s line of
reasoning was neither put to the Appellant, nor was it argued by
the State. The Magistrate accordingly misdirected herself by
drawing such a drastic conclusion in the absence of any evidence
to justify it.
[72] A further difficulty with the Magistrate’s judgment on conviction is that
she appeared to have disregarded significant parts of the evidence in
drawing an inference as to his guilt. As highlighted in the authorit ies
discussed above, where the state relies on circumstantial evidence only,
an inference of guilt must account for all of the evidence and must be
the only evidence that can sensibly be drawn in the circumstances.
[73] The following aspects of the Appellant’s evidence stood out quite
starkly but were apparently disregarded by the Magistrate:
[73.1] His apparent recollection that Ricardo told Monique ‘ hy loop
soek haar nou ’ seems a curious thing to make up. Although
Monique denie d the Appellant’s version on this score, but the
Magistrate did not critically evaluate the reliabili ty of her
evidence – particularly in light of her evasiveness when
23
23
questioned about Ricardo. Moreover, Mr Nomdoe’s failure to
provide any details of Ricardo’s alibi means that the reliability of
the alibi was not tested. The result of the State’s failure on this
score was that the accused’s version could also not be properly
tested. As indicated above, the gaps in the State’s evidence
cannot be filled by drawing an inference against the accused.
[73.2] The Appellant was also quite emphatic in his evidence when he
stated that ‘the murderers are wal king outside’ and that, if the
DNA samples were properly tested, he would not have been
before the court.
[73.3] As we indicated above, the DNA tests were conducted,
seemingly as an afterthought, after both parties had closed their
cases. The DNA results, in any event, did not establish the
Appellant’s guilt.
[73.4] Given that the State’s evidence was purely circumstantial, more
should have been done to close these gaps. Again, the failure by
the State to do exactly what the Appel lant requested cannot
justify an inference being drawn against him as to his guilt.
[74] As touched on earlier in our judgment, t he Magistrate’s reasoning also
did not account for the Appellant’s proven injuries on the morning the
crime was committed. The Magistrate placed much reliance on the
unlikelihood, in her view, that the Appellant could have sustained an
injury to the back of his head if he received a blow to his jaw from
behind. It is so that the Appellant tried to offer an explanation, but
24
24
ultimately testified that he did not know for certain how the cut to his
head was sustained. His inability to offer a conclusive explanation,
however, could not be a basis to disregard the fact of his injury.
[75] In the absence of any evidence of a struggle between the Appellant and
the deceased, the Appellant’s version that he was attacked must be
accepted as reasonably possibly true.
[76] It is apparent from the Magistrate’s judgment that the primary factor
which she found to point to the Appellant’s guilt was his prior
inconsistent statements regarding the number and identity of his
attackers.
[77] But his guilt is not the only inference to be drawn from the change in his
version. The Appellant explained that his initial account that he was
attacked by strangers was because he did not believe Mr Nomdoe would
believe him if he had identified Ricardo as his attacker. His assumption
was informed by his belief that, because he was relatively new to the
area and Ricardo was well known, Mr Nomdoe would believe Ricardo
over him. Ho wever, when Mr Nomdoe indicated that DNA samples
would be taken from the Appellant, the Appellant told Mr Nomdoe to
take Ricardo’s DNA as well. Mr Nomdoe could not recall whether the
Appellant mentioned taking Ricardo’s DNA but confirmed that the
Appellant had mentioned Ricardo during the course of the investigation.
It appears that Mr Nomdoe did not take any contemporaneous notes in
respect of this aspect of the investigation. The point, however, is that
Mr Nomdoe’s own recollection substantially corrob orates the
Appellant’s explanation.
25
25
[78] And in light of the State’s failure to test the second blood sample on the
knife handle, it cannot fairly be concluded that the Appellant’s version is
not reasonably possibly true.
[79] There is, in any event, an inherent logic in his explanation that he did
not mention Ricardo when, by all accounts, it would have been his word
against Ricardo’s (and Monique’s). But, with the possibility of
objective DNA evidence being introduced, he might have felt more
confident to name the person who had attacked him and who he believed
was responsible for the deceased’s killing. That the number of the
alleged unknown attackers in the original version changed between what
the Appellant told Ms Liesing, then Ms Plank and then in his statement
also suggests that the version of the unknown attackers was more likely
the fabricated one.
[80] There is also the Appellant’s evidence that, when he found the
deceased’s body, he noticed the broken knife handle. He repeated this
version in his plea expla nation and in his evidence. That the knife
handle was found, as described by the Appellant, was confirmed by
Mr Nomdoe. The obvious question is, if the Appellant had killed the
deceased, why would he leave such a crucial piece of evidence at the
scene of the crime? It is not an improbable inference to draw from these
facts that the Appellant found the deceased’s body in the manner that he
described and that he simply left it untouched. There was certainly no
evidence or suggestion that the Appellant had planted the knife handle at
the scene as a subterfuge to throw the police off his scent, as it were.
26
26
[81] Perhaps the most glaring question about the Appellant’s conduct is: why
did he return to the place where he last saw the deceased when he awoke
later in the morning of 23 December 2012?
[81.1] It could, as the State argue d, be because he knew that that was
where he had killed the deceased and left her body. This may, in
isolation, even be the most probable inference to be drawn.
[81.2] But it is not the only inference t o be drawn. At least one
alternative is that he returned because, upon reflection, he was
concerned that he had left her there, in danger, and went back to
find out. That was his explanation and, viewed in the context of
all the evidence, his explanation cannot be excluded as being
reasonably possibly true.
[82] For all these reasons, we find that the State did not prove, beyond a
reasonable doubt, that the Appellant killed the deceased.
[83] What, then, about his conviction of robbery?
ROBBERY OR THEFT?
[84] The concl usion that the Appellant robbed the deceased of her phone,
with aggravating circumstances, rested entirely on the conclusion that he
had killed her. In the absence of any proof of violence or assault, the
conviction of robbery must fall away and, so too, the minimum sentence
of 15 years’ direct imprisonment.
27
27
[85] But there remains the fact that the Appellant did not hand over the phone
to the deceased’s family, nor did he disclose its whereabouts to the
police after he was arrested. We accordingly invited the parties to make
submissions on (a) whether the Appellant’s conduct would justify a
conviction on the lesser sentence of theft, and (b) if so, what the
appropriate sentence would be if we so convicted him. We express our
gratitude to both legal representatives for the helpful submissions they
provided on this issue.
[86] Section 260 of the CPA provides that where the evidence on a charge of
robbery does not prove robbery, but proves the offence of theft, the
accused may be convicted of theft, notwithstanding tha t he was not
charged with that offence in the alternative. It is trite that this provision
applies without the need for a separate charge, and irrespective of
whether the accused was expressly warned of the competent verdict,
provided no prejudice results.
[87] Counsel for the Appellant fairly accepted that, even if we accept the
Appellant’s evidence as reasonably possibly true, which we have, then
his conduct in concealing the phone for an extended period, without
report to the police or the family, is conduct capable of constituting theft
by conversion.
[88] The concealment, coupled with the Appellant’s own evidence that he
was aware the police were looking for him and that the phone was a
potentially important piece of evidence, is capable of supporting an
inference that, whatever the innocence of the original taking, the
Appellant subsequently formed and acted upon an intention to
28
28
appropriate the phone and permanently deprive the deceased’s estate and
family of it.
[89] Whether his motive was to conceal the phone as evidence or for his own
use, we find that, on a conspectus of all the evidence, the Appellant is
guilty of theft in relation to the deceased’s phone.
[90] We turn, then, to discuss the appropriate sentence for the conviction on
the lesser charge of theft.
SENTENCE
[91] It is well- established that, in determining an appropriate sentence, a
court must consider the crime, the offender and the interests of justice. 7
In doing so, the principal objective is to ensure that the “ punishment
should befit the criminal as well a s the crime, be fair to society and be
blended with a measure of mercy according to the circumstances.”8
[92] It is relevant in this matter that the Appellant did not initially set out to
steal the deceased’s phone but formed the intention to do so only after
he found that she had been killed.
[93] It is also relevant that the item stolen was of modest value and there is
no evidence that the Appellant intended to profit from it. The police
also retrieved the phone within one month of the Appellant have taken
it.
29
29
[94] The accused has been in custody since his conviction on 4 September
2024 – almost 2 years to the day.
[95] Taking into account all the circumstances, including his age (he was 33
years old when the offence was committed and is now 47 years old), that
he has one minor child, and that he has prior convictions for theft and
robbery, we find that a sentence of 2 years’ direct imprisonment,
backdated to 4 September 2024, is appropriate.9
CONCLUSION
[96] In the premises, we conclude that:
[96.1] the State failed to prove, beyond a reasonable doubt, that the
Appellant killed the deceased;
[96.2] the Appellant is guilty of theft in relation to the deceased’s
phone; and
[96.3] a sentence of two years’ direct imprisonment is an appropriate
punishment for the theft of the deceased’s phone.
ORDER
[97] Accordingly, the following order is made:
1. The conviction of the Appellant on the charge of murder, read with
section 51(1) of the Criminal Law Amendment Act 105 of 1997
30
30
(“the Minimum Sentencing Act”) , and the sentence imposes in
respect of that conviction is set aside.
2. The conviction of the Appellant on the charge of r obbery with
aggravating circumstances, read with section 51(2) of the
Minimum Sentencing Act, and the sentence imposes in respect of
that conviction is set aside and replaced with the following:
“The Appellant is convicted on the competent charge of theft, for
which the Appellant is sentenced to 2 years’ direct imprisonment,
backdated to 4 September 2024.”
_______________
CHRISTIANS, AJ
I agree and it is so ordered.
_______________
FORTUIN, J
FORTUIN, J (concurring judgment)
[98] In addition to the findings above, I find it necessary to focus on the
South African Police Service’s duty to investigate crimes. This duty is a
constitutional one. Section 205(3) of the Constitution charges the police
with the objective “ to prevent, combat and investigate crime, to
maintain public order, to protect and secure the inhabitants of the
31
31
Republic and their property, and to uphold and enforce the law, ”. This
mandate is given further content in the South African Police Service Act
68 of 1995.
[99] This duty does not end with identifying the subject. It requires the police
to conduct a thorough and impartial investigation aimed at uncovering
all available evidence bearing on whether an offence was in fact
committed and by whom, so that a properly constituted docket can be
placed before the prosecuting authorities. Our courts ha ve recognised
this as a positive duty owed not only to the public interest in law
enforcement but, in appropriate circumstances, to individual
complainants and victims. A breach of this positive duty may found
delictual liability, as was found in Carmichele v Minister of Safety and
Security10.
[100] It is trite that the ultimate onus is on the state to prove guilt beyond
reasonable doubt. The investigation however must go beyond gathering
evidence that merely raises suspicion or is consistent with guilt. It must
pursue all reasonable lines of enquiry, both inculpatory and exculpatory,
so that the evidence eventually led is capable of excluding reasonable
alternative explanations for the accused’s conduct.
[101] A docket built on a single strand of evidence, an incomplete chain of
custody, or an investigation that stops once the suspect is identified,
without testing that evidence against other reasonable possibilities,
would fail to produce proof beyond reasonable doubt. This should be the
case irrespective of how strong the initial suspicion was. Where the
investigation falls short of this standard, as we have found was the case
32
32
here, the consequences should be borne b y the state. This means that an
acquittal should follow because the evidence does not meet the required
threshold. What should not be done, as was the case here, is to shift the
onus onto the accused.
[102] The deficiencies in the police investigation in this matter are glaring .
and it cannot be fixed by expecting the accused to disprove his guilt.
[103] The obligation of the state is not to raise mere suspicion. Its
constitutional responsibility is to investigate properly and to prove the
guilt of the accused.
[104] The investigating officer in this matter did not do what is expected of
him. The investigation leaves much to be desired.
[105] Both the deceased and the accused are not sophisticated people. In
addition to the constitutional rights of the accused, this was also a failure
to uphold the dignity of the deceased and her family. They deserved a
thorough investigation leading to a proper prosecution and the
conviction of the correct person who committed this heinous crime.
[106] I trust that the social standing of the appellant a nd the deceased did not
play a role in the manner in which this matter was investigated. As the
accused said during his evidence in chief that he mentioned the names of
two other people to Mr Nomdoe:
“as my bloed laat trek word, dan moet hy die twee persone se bloed ook
trek”
33
33
[107] The failure to do this, in my view, points to a total disregard of the
dignity of both the appellant and the deceased. This is a disregard of the
constitutional right entrenched in section 10 of our Constitution.
_______________________
FORTUIN J
Appearances
For the Appellant : Ms S Kuun
Instructed by Legal-Aid South Africa
For the Respondent : Adv A Hess
Instructed by DPP, Western Cape
1 The original Afrikaans evidence was not included in the transcript for this part of his evidence .
2 Van Jaarsveld v S; Ras v S (1105/2023; 885/2024) [2025] ZASCA 92 (20 June 2025), with reference to S v
Monyane and Others [2006] ZASCA 113; [2006] SCA 141 (RSA); 2008 (1) SACR 543 (SCA) para 15.
3 S v Mbuli 2003 (1) SACR 97 (SCA)
4 S v Hadebe and Others 1998 (1) SACR 422 (SCA) at 426f-h.
5 S v Reddy and Others 1996 (2) SACR 1 (A) at 8C-E (most recently endorsed in Ngwadla v S (936/2020)
[2026] ZASCA 77 (25 May 2026)).
6 S v Vilakazi (576/07) [2008] ZASCA 87; [2008] 4 All SA 396 (SCA) ; 2009 (1) SACR 552 (SCA); 2012 (6)
SA 353 (SCA) (3 September 2008) para 48
7 The so-called Zinn triad.
8 S v Rabie 1975 (4) 855 (AD) at 862G.
9 See, in this regard, the sentences imposed in:
34
34
S v Rankali and Others (Sentencing) (KS 3/2019) [2025] ZANCHC 26 (11 March 2025) in which accused one
was sentenced to three years’ imprisonment for theft (having received and concealed goods stolen by his co-
accused); the sentence was suspended because accused one had already spent 2 years and 3 months in prison
before he was granted bail.
S v Trickard 2014 (2) SACR 245 – the appellant was convicted of stealing a piece of cheese to the value of
R66.99. The appeal court set aside a declaration that the appellant is a habitual criminal and replaced it with a
sentence of 2 years, 10 months and 7 days for the time he had already spent incarcerated.
10 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)