NORTH WEST HIGH COURT, MAFIKENG
CASE NO.: CAF 01/2011
In the matter between:-
CORNELIUS NICHOLAS VAN RENSBURG Appellant
THE STATE Respondent
CRIMINAL APPEAL (FULL BENCH)
HENDRICKS J; GURA J; GUTTA J
DATE OF HEARING: 11 FEBRUARY 2011
DATE OF JUDGMENT: 19 AUGUST 2011
COUNSEL FOR APPELLANT: ADV HITGE
COUNSEL FOR RESPONDENT: ADV DIKGOPO
 The appellant was convicted of murder and sentenced to fifteen years
imprisonment in Vryburg Circuit Court. His appeal is directed against
the conviction and the resultant sentence.
 Initially, the appellant was charged with three counts: murder,
kidnapping and assault. In the first two counts the victim is Odisang
Samuel Gaoshubelwe (Odisang) and the date of the commission of the
alleged offence is 14 June 2005. The complainant in the last count is
Gaotsiwe Shadrack Mokoto (Mokoto). He is alleged to have been
assaulted (according to the indictment), on 15 June 2005, i.e. the day
subsequent to the commission of the offences in the first and the second
 The first witness for the State is Ms Kgalalelo Tlhako (Kgalalelo). She
parted with her husband, Odisang, on Thursday, 9 June 2005 at Amalia
when he was going to Vryburg. He was supposed to collect his motor
vehicle from a certain White man at Vryburg. From there, he was
supposed to go to his children at Mokgopela where he would spend the
 On Monday she got a report that he did not arrive at home (Mokgopela).
The subsequent day, she reported his disappearance to the police. She
was then asked to come back on Thursday when the police finally took
her statement. Thereafter the police came to her and asked her the
description of the clothing which Odisang had on when they parted. She
supplied this information.
 About six months after his disappearance, Kgalalelo and her relatives
were called to a mortuary at Vryburg where they were asked to identify
some human remains (bones). These bones were covered with the
clothes which Odisang had on when he was last seen by his wife.
These are a navy woollen hat; a T-shirt with white and blue stripes; a
lumbar jacket which is navy and khakhi in colour; a pair of navy trousers
and a pair of light brown shoes. His red and black Nokia cellphone as
well as his wallet were also there. His cellphone was not given back to
Kgalalelo. A blood sample was drawn from Odisang’s brother, Mac
Gaoshubelwe and from his (Odisang’s) child, Nonofo Tlhako.
 The following evidence emerged during cross-examination. Initially the
appellant was charged together with two Black people, Moopelwa and
Lesego. However at some stage the case was provisionally withdrawn.
Although Kgalalelo was present when a blood sample was extracted
from her son, Bonolo, she was not present when blood was drawn from
her brother-in law, Odisang’s brother. According to Odisang’s identity
document, he was born on 6 May 1956.
 The next witness was Lesego Mokalaneng (Lesego). At the
commencement of his testimony he was warned to tell the truth in terms
of Section 204 of the Criminal Procedure Act, 51 of 1977. What follows
is his account of the incident which happened at the appellant’s house,
No.191 McKenzie Street, Vryburg. In the morning of 9 June 2005 he
and one Piet were busy working at the appellant’s house, loading some
iron bars. A certain male person arrived there intending to buy a motor
vehicle which was on those premises. After they had inspected it, he
indicated that he was interested to buy it. Both of them (the appellant
and that stranger) got into the car because he wanted to test – drive it.
The appellant drove and they departed from that house.
 On their return, they entered the appellant’s office (on the same
premises) and discussed money matters. Thereafter they walked to the
vehicle and then to the storeroom. Whilst they were inside the
storeroom however, an argument developed between them. They
started to fight, first with bare hands, they wrestled, then the appellant
struck him with a plank – twice. They came out of the storeroom
fighting. The appellant then got hold of him and tied him to a tree with a
nylon rope. Lesego and Piet then went to fetch diesel at Mam’s garage
and on their return the man was still tied to the tree, crying. They
knocked off and went home, leaving the victim there.
 When Lesego came to work at the appellant’s premises on the
subsequent day, the man was no longer there.
 About one year later, Lesego and Piet Moapelo (Piet) were charged with
murder. After appearing twice in the Magistrate’s Court of Vryburg, the
case was withdrawn.
 Although he told the police that he started to work for the appellant late
June 2005, Lesego did not know exactly when did he start to work there
because he is illiterate. When the police met him at the tarred road, they
threatened him. Despite that, he refused to make a statement about
something which he did not know. However, he ended up making the
statement against his will because they threatened to come back again.
After that day, the police did come to him at Paposane village, they took
him to Mafikeng where he made a statement because he was being
threatened by the police.
 The following information was elicited during cross-examination. At the
beginning of the year 2006 he was arrested and detained for four days
in connection with this very same case wherein the appellant is involved.
Subsequent to that he made a statement to an attorney, Mr Van Zyl,
because he was forced to make it. It was made on 29 September 2008
at the attorney’s office; they were two – Lesego and the attorney in the
office at that time. What follows is a summarised version of that
12.1 The police asked him if he knows about a man who was tied to a tree at
Nick Van Rensburg’s premises. His answer was that he knew nothing about
12.2 The police warned him that if he did not tell them they would lock him
up at Mafikeng. They insisted that he must tell them how Nick Van Rensburg
fastened a man to a tree. They threatened him and said he should say that he
saw that man being fastened to a tree.
12.3 He was afraid because of the allegation that he would be locked up at
Mafikeng. He then gave up and told the police that he saw a person tied to a
tree with a rope (lyn). He just told the police what they had told him to say that
the man was then untied from the tree and loaded onto the Ford bakkie. He
then said the van then drove away.
12.4 On their insistence, he told them that when the bakkie returned, he had
knocked off and was not present at Nick’s place and that he never saw that
12.5 The police asked him if the man took out any money to buy the van. He
had to answer by saying that they first tested the vehicle. He told them that he
did not know if that man paid
12.6 The police then showed him a photo of the corpse of a Black man and
he told them that he neither knew him nor that he ever saw him before.
12.7 The statement was not read over to him. Because he is illiterate, when
he was instructed to append his thumb print on it, he refused. He only
complied after being threatened with detention.
12.8 He is afraid of the police because they intimidate him and they
instructed him to make statements the contents of which have been dictated
by them. He has never seen a person being tied to a tree. That is the end of
the statement to Mr Van Zyl.
 During cross-examination it was put to Lesego that in June 2005 he was
not working for the appellant and that he indeed started to work for him
in August 2005 and he confirmed that. He testified further that on 17
August 2006 the appellant made some renovations on the premises. He
further confirmed the version of the appellant that no person came there
in June 2005 to buy a bakkie because at that time he (appellant) did not
own a bakkie. He further confirmed the version of the appellant that he
never tied any person to a tree at his yard. He insisted that contrary to
his evidence in chief, the appellant never assaulted any person. Later,
(still during cross-examination) he somersaulted and said that indeed his
evidence in chief against the appellant was a correct version of the
events at the appellant’s house.
 During re-examination by the prosecuting counsel, Lesego first denied
that the police ever took a statement from him. Later however, he
admitted that he made a statement to the police at Mafikeng. Later he
said that in fact he never made that statement to the police but that they
instructed him to sign a blank document by means of a thumb print.
Later he stated that in fact when he arrived at Mafikeng police station,
he found that the police had already written down a statement and all
that he was then requested to do was to put his thumb print on it. That
is the end of Lesego’s tale.
 The State then called a police officer, Shabalala, to prove that Lesego
was a liar. He testified that he is the one who, on 5 June 2008, took
down Lesego’s statement at Mafikeng. According to him, Lesego made
it freely and voluntarily and without anyone threatening him.
 Mr James Modise testified that on a date which he could not remember,
and whilst herding his employer’s cattle in a camp, between Schweizer-
Reneke and Sotosmart, he saw the bones of a human being under a
tree. There was also a cellphone there.
 Mr Shadrack Mokoto (Mokoto) testified to the following effect: The
appellant’s yard is divided into two; the first portion is where there is a
house for an old man, the second one is where the appellant’s house
and garage are situated. The appellant’s stand is No.191 and that of his
neighbour 189 McKenzie Street, Vryburg. The two properties have been
divided by a concrete wall which has a gate.
 On 9 June 2005 Mokoto was painting the house at No.189. Before he
arrived at that house that morning, he met Odisang who was saying that
he was going to house No.191 to see a White man because he wanted
to buy a vehicle from him. Whilst he (Mokoto) was on the stepladder
busy painting the house, he heard someone crying at No.191. From
there he could see that it was Odisang who was being pulled from the
storeroom by two Black people and a White man. One of those people
was Piet and the White person was the appellant. They then tied him to
a tree with a rope.
 Mokoto then dismounted the stepladder and went to stand at the gate
which is between the two properties. He was now about six paces away
from Odisang who is his aunt’s son. He did talk to him. When he
knocked off duty that day, Mokoto left his cousin still tied to the tree in
the appellant’s yard. That was his last time to see him.
 He described his clothing as follows: a white T-shirt with a blue stripe; a
fawn lumbar jacket; a blue woollen hat; a navy blue pair of trousers and
a fawn pair of shoes.
 The subsequent day he met Piet at the appellant’s house and he (Piet)
requested him for his assistance to load iron bars on the vehicle in order
to convey them to Ganyesa. He agreed to that and they travelled to
what he thought would be Ganyesa. However, instead of stopping at
Ganyesa, they drove to Pomfret. They travelled in two vehicles with
some White people including the appellant.
 After passing Pomfret, they stopped at a forest with the purpose of
making a braai. However, after the fire was made, the White men
started to assault the Black men. Two of them paid attention to Mokoto
and demanded from him to tell them “the truth which I know”. When he
said that he knew of no particular truth, he got clenched fists blows from
the two. In defence, he cut one of them with a knife. They grabbed him
with the polo neck jersey which he had on. He broke loose and instead
left it (jersey) in their hands. He took to his heels. The appellant is not
one of the two men who assaulted him.
 Before cross-examination of Mokoto, an inspection in loco was
conducted at the appellant’s house, No.191 McKenzie Street, Vryburg.
The following are some of the findings consequent upon such
inspection. There is a tree at house No.191 which is next to the
storeroom. This tree is the same as the one which is depicted on photos
No.3 and 4 of the photo album. This is the tree to which Odisang was
tied. The exact place where Odisang was tied to this tree is on the
south-westerly direction of the tree, between the door of the storeroom
and the tree. There is a fowl run which is attached to the storeroom.
The concrete wall between the two properties has since been replaced
with a fence. The concrete wall was about half a meter high (when it still
existed). There is another tree, the Kareeboom, on the right hand side
of the storeroom. This storeroom is the one in which the fight between
the two men started.
 House No.189 McKenzie Street (which is the house of the appellant’s
neighbour) was also inspected. Mokoto pointed to this house (No.189)
as the one which he was painting on the date of this incident. This is the
same property which is depicted on photo No.12. Mokoto climbed on a
stepladder next to the house (No.189) to indicate where he was painting
when he saw Odisang being tied to a tree. The finding was that his
head was on the same level as the window on photo 12. The estimated
distance from this place (point A – where he was painting) to the tree
where Odisang was chained (point B) is 42 paces (as the crow flies).
Between point A and B there is a building, the Kareeboom and a
veranda. That is the end of the evidence relating to the inspection in
 Under cross-examination, Mokoto said that the small house i.e. the
brown structure and the veranda were not there (between point A and B)
during this incident. He stated that even the photos before court do not
depict any of the two structures (the photos were taken on 11 February
2006). He also denied that the “afdak” was there on the day of the
incident as well as the date when the scene was photographed. Later
he conceded however that photo 11 depicted the “afdak” and the
veranda but maintained that he never saw them when the place was
photographed. As at the date of inspection in loco, the Kareeboom
could have been 3 metres high.
 After the police took down his statement at Vryburg Police Station, he
does not remember whether it was read over to him. Whereas in his
evidence in chief he said that this incident took place on 9 June 2005, in
the statement to the police he said it was on 14 June 2005. On a day
subsequent to the incident (where he saw Odisang tied to a tree) he
reported the matter to the police.
 The investigator of this case, Inspector Mothoagae testified that after the
bones were found in the camp, a blood sample was taken from
Odisang’s child. Some tissues were taken from the bones and teeth of
the body which was found in the veld. The purpose of all this was to
determine if the bones were those of Odisang. According to Mothoagae,
scientific tests proved that indeed the bones were his.
 Exhibit B contains the forensic results of entomological specimen tests
conducted on the tissue from the body of the deceased. Dr Mansell, the
entomologist, estimated that the deceased may have died some two to
three months prior to the day on which he was discovered (3 February
2006). He (Mansell) concluded:
“. . . However, because the body had been completely exposed, and the area
is usually fairly arid, decomposition may have taken place more quickly than
in other areas. This would have been conducive to rapid development of the
 Professor Raubenheimer analysed the specimen of the deceased’s
teeth in order to determine his age. His conclusion is that he should
have been between 60 and 65 years old. His findings are contained in
 A senior Forensic Analyst from the Biological Unit of the Forensic
Science Laboratory prepared a report (as per exhibit J) which was
handed in, in terms of Section 212 of the Criminal Procedure Act. After
analysing the DNA tissues which were obtained from the deceased, she
made the following findings:
“Given the DNA results the donor of the teeth sample (FSC-360870) “Exhibit
C” has a 200 times bigger chance, at being the biological father of the child
“02D4AD1992XX” (N HLAKO), than any other randomly chosen individual
within the specified population group . . .”.
Her conclusion was therefore that the probability of paternity was
 After the close of the State case the appellant testified and called three
witnesses. He denies that he ever saw the deceased or that he ever
assaulted or fastened him to a tree or killed him. His evidence is to the
effect that he and his wife keep a diary of daily events. The diary served
as exhibit L in this trial. He referred to three dates in the diary which, he
says, are important for him in this case. The following are the entries in
the diary which he confirmed. On 9 June 2005 he was at Kuruman
where he was trying to remove tools from a mechanical drill. He spent
the whole day there. The same applies to the subsequent day, 10 June
2005. He says that he was with his workers (“Piet hulle”).
 On 15 August 2005, Lesego started to work for him and it was also on
that day that he bought the mechanical drill. He denied that Lesego was
at his premises either on 9 or 14 June 2005. On 10 September 2005 he
bought a Ford bakkie. But he never offered it to anyone for sale, neither
did anyone test-drive it.
 He denied that the “motorhuis” was smaller than it was now. According
to him, the only thing that changed in that structure was the door
because he wanted to change it (garage) into a living flat. He testified
that the Kareeboom was of the same size as at June 2005. He denied
ever conveying Mokoto and others to Pomfret as he alleged. He said
that Mokoto’s wife once worked for them for few months and may have
given her husband the description of the appellant’s premises.
 Mr Willem Bester (Willem) testified to the following effect: On 17 April
2009 he photographed the appellant’s premises and he also took an
aerial photo of that place on the instructions of the appellant. He knows
stands No.191 and 189 for more than 30 years. The garage, which has
since been turned into a flat, has been of the same height since he knew
that place. The only thing which was altered was the door. The trees in
that yard have been of the same height all along. There are many
obstructions between point A and B in so much that no one who is at
point A may be able to see at point B.
 Mr Van der Walt is 77 years old and he testified that he has been
staying at the appellant’s premises since 1994. On 9 June 2005 he was
on the premises and no person was ever tied to a tree there. The
present flat was originally a garage but it was changed.
 The last witness was Mr Karel Bester (Karel) who testified that house
No.189 McKenzie Street belongs to his late father. In 2004 the
appellant was a tenant at No.189; his landlord being Karel. During 2005
Mokoto was never employed to paint that house.
 The only issue is whether the State has proved beyond reasonable
doubt that the appellant killed Odisang. An answer to this question
depends on yet another inquiry whether the credibility finding of the trial
court on Lesego and Mokoto was correct.
 The power of this Court as a court of appeal was reiterated by Zulman
JA in Santam Bpk v Biddulph 2004 (5) SA 586 (SCA) at 589 par.5 as
“whilst a Court of appeal is generally reluctant to disturb findings which
depend on credibility it is trite that it will do so where such findings are plainly
wrong (R v Dhlumayo and Another 1948 (2) SA 677 (A) at 706). This is
especially so where the reasons given for the finding are seriously flawed.
Overemphasis of the advantages which a trial Court enjoys is to be avoided .
. . It is equally true that findings of credibility cannot be judged in isolation,
but requires to be considered in the light of proven facts and the probabilities
of the matter under consideration.”
 I think it is apposite to set out the approach which a court should adopt
where a witness’ evidence bristles with contradictions. The reason for
this will become clear later. I quote from the headnote of S v Mfaladiso
en Andere 2003 (1) SACR 583 (HHA):
“The juridical approach to contradictions between two witnesses and
contradictions between the versions of the same witness (such as, inter alia,
between her or his viva voce evidence and a previous statement) is, in
principle (even if not in degree), identical. Indeed, in neither case is the aim
to prove which of the versions is correct, but to satisfy oneself that the witness
could err, either because of a defective recollection or because of dishonesty.
The mere fact that it is evident that there are self-contradictions must be
approached with caution by a court. Firstly, it must be carefully determined
what the witnesses actually meant to say on each occasion, in order to
determine whether there is an actual contradiction and what is the precise
nature thereof. In this regard the adjudicator of fact must keep in mind that a
previous statement is not taken down by means of cross-examination, that
there may be language and cultural differences between the witness and the
person taking down the statement which can stand in the way of what
precisely was meant, and that the person giving the statement is seldom, if
ever, asked by the police officer to explain their statement in detail. Secondly,
it must be kept in mind that not every error by a witness and not every
contradiction or deviation affects the credibility of a witness. Non-material
deviations are not necessarily relevant. Thirdly, the contradictory versions
must be considered and evaluated on a holistic basis. The circumstances
under which the versions were made, the proven reasons for the
contradictions, the actual effect of the contradictions with regard to the
reliability and credibility of the witness, the question whether the witness was
given a sufficient opportunity to explain the contradictions – and the quality of
the explanations – and the connection between the contradictions and the
rest of the witness’ evidence, amongst other factors, to be taken into
consideration and weighed up. Lastly, there is the final task of the trial Judge,
namely to weigh up the previous statement against the viva voce evidence, to
consider all the evidence and to decide whether it is reliable or not and to
decide whether the truth has been told, despite any shortcomings.”
Evaluation of evidence
 The trial court found that Lesego was not an impressive witness at all;
he was sometimes evasive when he had to respond to questions; in
most instances, it was difficult to understand what he wanted to say and
he appeared to have been frightened especially after his second
statement was produced. (The second statement is the one which he
made to an attorney). The court then concluded “Because of these two
statements, the credibility of this witness as correctly conceded by the
State leaves much to be desired.” Despite this finding, (and, relying on
this passage from S v Govender and Others 2006 (1) SACR 322 (EC)
“Even where it was concluded that a witness was being untruthful in his or her
attempts to explain contradictions, it did not mean that all that witness’
evidence should be rejected.”)
the court found that Lesego had corroborated Mokoto in relation to the
alleged assault on Odisang.
 The court made another finding that pursuant to the inspection in loco, it
was clear that “the structure” between house No.189 and 191 obstructed
the view from point A to B (that is, from where Mokoto was allegedly
painting to the tree at which Odisang was fastened).
 Lesego was an accomplice and the trial court did approach his evidence
with a measure of caution. I am however of the view that the cumulative
effect of the contradictions in Lesego’s evidence was overlooked.
Perhaps we should keep in mind what was stated in S v Hlapezulu and
others 1965 (4) SA 439 (A) at 440 D – E.
“First, he is a self-confessed criminal. Second, various considerations may
lead him falsely to implicate the accused, for example a desire to shield the
culprit or, particularly where he has not been sentenced the hope of
clemency. Third, by reason of his inside knowledge, he has a deceptive
facility for convincing description – his only fiction being the substitution of the
accused for the culprit.”
 Lesego made a statement to the police wherein he implicated the
appellant. Thereafter, he made a statement to an attorney (under
circumstances which are to this court unclear) in which he disavowed
the earlier statement. In his evidence in chief, initially, he implicated the
appellant in regard to the assault on Odisang, but later (still in evidence
in chief) he testified that the police threatened him in order to make a
statement and to tell them things which he did not know. What then are
the things he did not know? There was only one incident in regard to
which he had to explain to the police (and to the court) and it is the
disappearance of Odisang.
 In cross-examination, he then gave more information about the “things
which he did not know”. His statement to the attorney says exactly that.
What is important is that whilst being cross-examined, he stood by his
statement to the attorney; he turned against the police statement.
Towards the end of cross-examination, he then confirmed that what
appears in his statement to the police is the truth. However, he never
uttered a word to say the statement to the attorney is not the truth. The
trial court, in finding corroboration from Lesego’s evidence, relied on his
latest version. This, in my view, is a tricky horse to ride.
 Lesego does not know when exactly did he start to work for the
appellant. For the correct date reliance has to be placed on the
 In my view, Lesego was a very unreliable witness. He failed to explain
why he had to make the statement to the attorney. All he said was that
he was threatened. There are no details about the content and the
source of the threat. In brief, he was a reckless liar whose evidence
cannot be safely relied upon. One imagines what would have happened
if the defence had not confronted him with the statement to the attorney.
I am not surprised that when the second statement was produced, he
was frightened. He did not want its contents to come to the attention of
the court because it exposed the nakedness of his lies.
 I am now dealing with the evidence of Mokoto. The trial court took into
account that he testified on 17 October 2008 and was only cross-
examined about three months later, on 19 January 2009. Although the
court appreciated that there were some contradictions in his account, it
was satisfied that he was not evasive and accounted for the
contradictions. In any case, so the court found, the contradictions were
not material at all. Accordingly, he was found to be a credible and
 In his evidence in chief, Mokoto testified that Odisang was tied to a tree
on 9 June 2005 whereas in his statement he said it was on 14 June
2005. He was not certain how many people chained the victim to the
tree, initially he said it was two Black people and one White man but
later he said two White men and one Black man. His evidence in court
is that he last saw the victim at sunset when he knocked off. However,
he told the police that whereas initially he saw him around 11H00, but
already around 13H00 on the same day he could not see him any longer
in the appellant’s yard. He goes further (in his statement) that around
that time (13H00) on 9 June 2005, he then looked around in the
appellant’s yard but Odisang was no longer to be seen anywhere. His
explanation is that the police made a mistake and he stood by his
evidence in chief.
 The police made yet another mistake, he said, when they wrote that he
was assaulted by the appellant in a fight that took place in the bush near
Pomfret. This mistake led to the prosecution preferring the third count
against the appellant. When one looks at his statement, (Exhibit K) par.
14 and 15 it is hard to see how the police would have made such a
“14. While standing there as we got out of the bakkie and stand next to it,
Nico said to me that I must know that I am not at Mandela’s place.
15. He then hit me with an open hand on my face. I then fell down, and I
immediately stand up. Nico’s friend try to kick me and I blocked the kick.”
Throughout the statement, he refers to the appellant as Nico Van
Rensburg or as Nico.
 In his evidence in chief he never testified that he reported this incident
(of 9 June 2005 about Odisang) to the police the subsequent day. In
fact he said when he arrived there the subsequent day, they drove away
to deliver iron bars but the trip ended in a bush fight. He fled for the
whole night thereafter. We should bear in mind that Odisang was his
cousin. In cross-examination he testified that a day after he saw the
victim at the appellant’s yard, he reported this incident to the police. My
view is that he could not have reported to the police on 10 June 2005
because when he went to house No.189 that morning, he never knew
whether or not Odisang was still there. Only on his arrival at No.191 did
he notice that he was not there. From that stage, he left the appellant’s
place when they were travelling to Pomfret.
 What is interesting is that his statement to the police is dated 3
November 2005, some five months after the alleged incident. In this
statement he tells of the incident about Odisang at the appellant’s house
and about their aborted trip to Pomfret. It is therefore clear that he
reported for the first time to the police (that Odisang was chained to a
tree) five months later; yet this was his cousin. When he was asked why
he waited for so long before he could report to the police he said that he
was afraid to go to the police because he had stabbed a White man with
a knife and he did not know whether or not he was still alive.
 I am of the view that if Mokoto saw his cousin tied to a tree and being
assaulted, he would have reported this immediately. He goes further in
his statement to the police to say that Odisang asked him specifically to
help him and when he (Mokoto) said to him that he could not, he asked
him (Mokoto) to report to a lady whose name Odisang mentioned.
Because Mokoto later forgot the name of that lady, he said, he never
reported to anyone.
 In his evidence in chief, he initially said that in the morning of 9 June
2005 he met Odisang when he was on his way to the appellant’s place
and he did tell him that he was going there to buy a car. Later in his
testimony, still in chief, he denied, twice, that he ever saw him that
morning as he was going there except at the stage when he was being
 The inspection in loco revealed that from point A one cannot see what is
happening at point B, i.e. from house No.189 to 191 McKenzie Street.
There are three obstructions: the kareeboom, the veranda and a
building. As regards the kareeboom, it is understandable that in January
2009 it would be higher and perhaps thicker than what it was in June
2005. Mokoto denied the existence of the two structures as they are at
the date of the incident and at the date when the scene was
photographed on 11 February 2006. The photos before court proved
him wrong – at least as regards the position as at 11 February 2006.
The trial court accepted the evidence of the defence that since 2004 the
height of the veranda and that of the building was never increased and it
remained as it was as at the date of the inspection in loco. In regard to
how these two buildings were in 2005, it is the word of Mokoto against
that of four defence witnesses who impressed the trial court.
 In my view Mokoto was not a credible witness as there were numerous
material contradictions in his evidence.
 In my view, this is a proper case where the court should have
entertained a doubt as to whether the guilt of the appellant, at least on
assault (let alone murder), have been proved beyond reasonable doubt.
 In view of the conclusion which I make in this case, it is unnecessary, in
my view, to express any opinion as to whether or not the bones were
that of Odisang.
 Consequently, the appeal is upheld, the conviction and sentence are set
JUDGE OF THE HIGH COURT
R. D. HENDRICKS
JUDGE OF THE HIGH COURT
JUDGE OF THE HIGH COURT