S v Moleleki (37/2020) [2021] ZAFSHC 10 (28 January 2021)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No.: 37/2020

In the matter between:

THE

STATE

and

TEBOHO

TSHEPO

MOLELEKI

ACCUSED

CORAM:

MATHEBULA, J

JUDGMENT BY: MATHEBULA,

J

HEARD ON: 19, 20, 21, 22, 25, 26 & 27 JANUARY 2021

DELIVERED ON: 28 JANUARY 2021

Introduction

[1] The deceased Lekhetho Benedict Malebo alias Benny, Mzet or Molelle a taxi driver aged twenty eight (28) was last seen alive leaving a salon at Phuthaditjhaba taxi rank in the company of the accused person on 22 September 2018 in the morning.

Charges, Plea and Plea Explanation

[2] The accused is appearing before this court indicted for robbery with aggravating circumstances and murder. He entered a plea of not guilty on both charges and made a plea explanation in the following terms:-

(a) Charge number 1

(i) He denied perpetrating any assault with intent to rob and forcibly removing the Toyota Quantum with registration letters and numbers [.…] (motor vehicle) from the possession of the deceased.

(ii) He had entered into an oral agreement with the deceased to hire/lease the motor vehicle for his use to travel to Pretoria with his friends to attend a food and music festival held on 22 to 24 September 2018. He paid R5 000.00 for the use of the motor vehicle which was supposed to be returned on 24 September 2018. The fuel costs were to be for his own account.

(b)Charge number 2

He denied that he killed the deceased and challenged the state to prove each and every element to secure a conviction.

Admissions

[3] Several admissions were confirmed on behalf of the accused and handed in as Exhibits. They are part of the uncontested evidence before the court.

Exhibit “A” - This is a report on a medico legal post-mortem examination conducted by Dr T. Mokhatla on 17 July 2019. She concluded that the cause of death was “suspicion of a head injury”.

Exhibit “B” - Affidavit in terms of section 212 of Act 51 of 1977 deposed to by Warrant Officer Felicity Matjele Chiloane attached to the Forensic Science Laboratory of the South African Police Service. Her evidence is limited to collecting and submission of the DNA samples to Biology Laboratory for identification purposes.

Exhibit “C” - Affidavit in terms of section 212 of Act 51 of 1977 deposed to by Captain Theodorus Ernst Viljoen attached to the Victim Identification Centre of the South African Police Service. He removed two (2) molars from the remains pointed out to him by Forensic Pathology Officer Selepe. He sealed them in an evidence sealing bag and handed the same to Captain Setho.

Exhibit “D1” and “D2” - The two comprises a report compiled by and an affidavit in terms of section 212 of Act 51 of 1977 deposed to by Captain Regina Cicilia Janse van Rensburg attached to the Biology Section of the Forensic Science Laboratory of the South African Police Service. The conclusion reached in her report is that the dossier of the molars removed by Captain Viljoen from the remains mentioned in Exhibit “C” is of the biological child of both JL and MA Malebo.

Exhibit “E” - This is a sworn statement deposed to by Constable Nceba Mitani stationed at the Provincial Criminal Record Centre. He also compiled a photo album portraying the scene of the alleged murder comprising of fifty (50) colour photographs.

Summary of evidence for the State

[4] On 22 September 2018 in the morning at around 6H00, the deceased was the first customer at the salon of his preferred hairstylist Samuel Ntja Mzizi. After he was assisted he requested to use his hair clipper to shave his beard. Just before he could commence, the accused entered the salon. The accused conveyed to him that the gentlemen over there wanted to know whether he can assist them with a special trip to ferry passengers from Absa Building to the University of the Free State (QwaQwa Campus). The deceased left in a hurry without even paying for the services rendered to him. Efforts to locate him to come and pay proved to be a fruitless exercise.

[5] It is common cause that the deceased was never seen on the face of the earth again. On two (2) separate occasions the accused returned to the salon and the discussions about the deceased ensued. The accused lamented the fact that the deceased has landed him in hot water. He ventured to explain that the deceased deceived him by

pretending that the motor vehicle belonged to him. Apparently after they had tied their transport deal, they parted ways near Tataisong Primary School.

[6] According to the employer of the deceased and owner of the motor vehicle Matjane Petrus Ntombela (“Ntombela”), the deceased was unreachable on his two (2) cell phones and none of his co-workers had seen him since the morning. He contacted the Cartrack company to track the motor vehicle which revealed that it was located at a shopping mall in Pretoria. The accused and another person were in the motor vehicle. There was no sign of the deceased. He instructed the company to keep it because whoever was in possession did not have his permission.

[7] Together with the family members of the deceased they travelled to Pretoria to fetch it. On their return they were informed by a police officer from Phuthaditjhaba that the accused was at the police station to make a report. The accused told them that he had hired the motor vehicle from the deceased and they parted ways at Phuthaditjhaba. Ntombela explained the procedure before embarking on a special trip and that in his business such a trip cannot take place unless he had authorised it. The deceased who was his most trusted employee could not have undertaken such a venture.

[8] The friend of the accused to wit Rorisang Ramohomane (“Ramohomane”) testified that together with his girlfriend and three other friends they organised a trip to a Dstv Food and Music Festival held in Pretoria. The accused who was not part of the group from the beginning also joined them at a later stage. To facilitate the success of the trip, tasks were allocated to the participants. It appears the arrangements for transport to ferry them were assigned to

him. He had informed them that he had organised a Hyundai H1 from Khehla and they will leave at 9H00 on 22 September 2018.

[9] On the appointed day he arrived late driving a Toyota Quantum (motor vehicle) and his explanation was that he fought with Khehla and his dogs bit him. He gave the explanation that it was leased from the owner. Nevertheless, they left for Pretoria. Although everyone was in jovial mood, the accused was in pensive mood. He was not his normal self which is a far cry from an energetic person that he is. In the motor vehicle there was a wallet, driver’s licence and identification card. Enquiring about them the accused simply said he must not bother about them.

[10] While purchasing fast food at McDonalds, they were confronted by armed officials from Cartrack and the South African Police Service who ordered them to alight from the motor vehicle. The accused tried to make a dash for it but he told him not to do so and held his hand. On their arrest, the accused explained that he had hired/leased the motor vehicle from the driver and that he (Ramohomane) must be released. They duly obliged.

[11] It is common cause that the remains of the deceased were dug out from a bedroom in the house once occupied by the accused situated at 1525 Bolata. The property was inhabited by the late Makhala Mngomezulu (“Mngomezulu”). When she moved to Bethlehem she left the keys with her neighbour Betty Mbanjane (“Mbanjane”) who also acted as the caretaker.

[12] Sometime mid-January 2018 Mbanjane received a message that someone was going to stay on the property. Mid February 2018 the accused in the company of his girlfriend presented himself as the would-be occupant of the house. They (all of them) inspected the house and the accused was satisfied with it. He returned few days later to take occupancy. Mbanjane was delighted because it was off her shoulders. The accused stayed on the property although he would at times be unseen for days or weeks and towards the end for months. When Mbanjane asked him about his whereabouts, he responded that he had been at Phuthaditjhaba.

[13] The evidence of John Malebo (deceased’s father) relates to how he left for work on 22 September 2018 and never returned. In Pretoria they were only handed his empty wallet. He later learned that his driver’s licence was in the docket.

[14] The autopsy on the skeletal remains of the deceased was performed by Dr Tshepiso Mokhatla on 16 July 2019. Her expertise to express an opinion on matters of this nature was not placed in issue. Two issues are relevant for discussion as contained in her report. She recorded that the death of the deceased took place on 16 July 2019 and the cause of death as suspicion of a head injury.

[15] The only plausible explanation on the date of death is that she examined the remains a day after they were discovered. Logically on the day they were discovered death had already taken place. She testified that for the human body to reach such a stage as that of the deceased depends on a number of factors. Inter alia it is where it was buried, the manner it was dressed before burial and weather conditions. Decomposition is much quicker in warm conditions but takes a longer period in cold conditions.

[16] Turning to the cause of death, the one inquiry that stood out leading to the conclusion of the head injury is that the skull had a fracture on the glabella. There was also a discolouration on the left zygoma and left mastoid bone. On photo 45 and 46 of Exhibit “E” a blueish mark on the glabella is visible. She explained that this is indicative of the deceased having bled into the bone. The cause of such bleeding was that he suffered a blunt trauma. The reason the mark is still visible is because the deceased was buried before the body could get an opportunity to heal. She added that there could have been other injuries or cause of death but that could not be determined because of the absence of the soft

tissue.

[17] The evidence of Blou Tau (“Tau”) is that from February to July 2019 he was the sole occupant of house 1525 Bolata. Permission to stay there had been granted by Mngomezulu. Although he had been at the property before cleaning the yard in 2019, he did not have any access to the house. On two (2) previous occasions he had been on the property to clean, there was no sign of the accused. He only met him around March/April 2019 in the company of Mngomezulu and Mbanjane. Although he had never seen the accused on the property, towards the end of 2018 he noticed that an old model Mercedes Benz motor vehicle which was offered for sale was parked on the property.

[18] Two (2) to three (3) days after occupying the property, he noticed that an unused deep freezer which contained pots was filled with soil. He reported the matter to Mbanjane and later telephoned Mngomezulu about it. The latter brought it to the attention of the accused. The soil remained in the deep freezer until he left the property.

[19] The evidence presented pertaining to the trips and different locations recorded of the motor vehicle is not disputed and admitted by the accused. This is contained in Exhibits “F” and “G”.

[20] The Investigating Officer substantially narrated the events that unfolded after he was seized with the investigation of the missing person docket. The relevant part of his evidence for the purposes of this matter is his interactions with the accused. He enquired from him how did he acquire possession of the motor vehicle the deceased was driving, where they parted ways and the last time they spoke. The accused identified the owner of the motor vehicle to him as Malebo and that he had paid him R5 000.00 to use it. They parted ways in the morning near Tataisong Primary School. Thereafter went to Setsing Complex, collected his luggage, then his friends and left for Pretoria. The last time they spoke he was driving past the town of Sasolburg.

[21] The second interview with the accused took place after he had received Exhibit “G”. He noted that the motor vehicle had been to Bolata prior to leaving Phuthaditjhaba. He confronted the accused about it. His response was that he had never been at Bolata, does not know the place as his life activities centres only around Phuthaditjhaba.

[22] The breakthrough to solving this grisly crime occurred on 14 July 2019 when Sara Moleleki (accused’s mother) approached him. Together they went to house number 1525 Bolata where she unlocked the door. There was a deep freezer filled with soil. In one of the rooms she lifted the carpet and he observed a hole with cement plastering over it. He requested a multi-disciplinary team to assist him and the skeletal remains of the deceased were exhumed from the shallow grave.

Summary of evidence for the defence

[23] The accused was not part of the trip to attend the event in Pretoria. He was persuaded to join the travelling party by his girlfriend. The responsibility to organise and pay for transport fell on his shoulders. The others carried the tab to provide him accommodation, beverages and take care of his huge appetite (as he described it). He made arrangements with one Khehla to use his motor vehicle for R3 800.00. The latter did not keep his part of the bargain and on the appointed day (22 September 2018), the motor vehicle was in Mpumalanga. A quarrel ensued and he was bitten by his pit bulls.

[24] The abrupt change of plans was conveyed to others via a WhatsApp group message. Around 7H15 he set out from his parental home to source transport at two (2) different taxi ranks. He met the deceased (who was an acquaintance) at about 8H15 where they discussed and concluded a deal to utilise his motor vehicle. Together they went to his parental home where he paid him the money. Thereafter he left him at Tataisong Primary School and they never met again.

[25] He stayed at 1525 Bolata from January to 30 March 2018. He retained the keys until May 2018. The evidence that he was still on the property beyond the aforementioned time frame is a lie which he attributes to a political conspiracy against his mother. Instead he learned months later (still in 2018) that Blou Tau was staying on the property. The circumstances relating to the robbery and killing of the deceased are unknown to him.

[26] The evidence of Sara Moleleki (mother of the accused) is that the accused occupied 1525 Bolata in September 2017 pursuant to a request from his paternal grandmother. He moved back to 1940 Phuthaditjhaba during Easter 2018. Although she spent most of her time in Bloemfontein where she works, she did not see the accused staying in Bolata.

[27] On 6 July 2019 she received a phone call from the paternal grandmother about the soil that had been discovered in the deep freezer at 1525 Bolata. Together with the accused they proceeded to the property where they found the late Mngomezulu. In the presence of the accused they inspected the bedroom he was occupying and noticed that there has been an excavation which had been sealed with cement mixture. There was also a plastic material protruding which she refused the accused to remove it on the request of Mngomezulu. On 13 July 2019 they removed the belongings of the accused and a day later reported the matter to the police.

Closing arguments

[28] State Counsel submitted that the case is based purely on circumstantial evidence and on the basis of the evidence tendered argued that the state had proved its case beyond reasonable doubt. He referred to two (2) issues viz: (1) the accused was found in possession of the motor vehicle. (2) The skeletal remains of the deceased were found in the house that was once occupied by the accused. He submitted that there was no cogent reason(s) why the deceased would surrender the motor vehicle (the property of his employer) to the accused (who was a total stranger). Important items like his identity document, driver’s licence and wallet were left in the motor vehicle. Turning to the second point he submitted that the accused was staying at 1525 Bolata at the critical time. He placed reliance on the evidence of both Betty Mbanjane and Blou Tau. He alluded to the conduct of the accused after being released on bail that he failed to report the matter to the police and even failed to do so after being requested by his mother. In summation, he argued that considering the probabilities and improbabilities, the version for the state outweighs the version for the accused.

[29] In sharp response, counsel for the accused pointed out that there is insurmountable aspects that needs to be answered. In matters of this nature, the trier of fact is enjoined to shy away from speculation and conjecture. He must be convinced that the inference drawn is the only inference bar any other inference. This is the law and I respectfully agree.

[30] He referred to the mistake made by Mzizi pertaining to time which is not supported by objective facts. Referring to parts of the evidence that evokes a sense of doubt, he pointed out that the motor vehicle stopped at Bolata for approximately 14 minutes. Given this limited time, it is humanly improbable that a person acting alone will kill and bury another in a shallow grave as alleged by the State. However, he conceded such submission can only stand on the back of the finding that the accused was not staying on the property at the critical time. He cast serious doubt on the memory of both Mbanjane and Tau to remember the events. The basis of his argument is that in the absence of a clearly defined barometer, their account of events relying purely on memory is insufficient. He added that given the evidence in totality, there exists doubt and the accused must be given the benefit of it.

Evaluation of evidence in totality

[31] When all is said and done, the court must take a closer look at the evidence and make a determination whether the State has mastered the threshold to return a finding of guilty of the charges. The cornerstone is that the facts must be understood in their proper context and the law applied to the proven facts in dispute. In this matter there are quite a number of points that are common cause. These are either dealt with in the admissions made in the Exhibits referred to in paragraph 3 or elicited in the evidence presented before court.

[32] The morning of 22 September 2018, the accused and the deceased left the salon in the company of each other. The accused had arrived and requested that the deceased take him on a special trip. What is in dispute on these set of facts is the time of his arrival and whether the details of the destination of the special trip was discussed in the presence of Mzizi or not.

[33] According to Mzizi, the accused spoke openly to them that the gentlemen at the taxi rank required a special trip from Absa Building to the University Campus. The deceased left immediately promising to come back soon because the destination is a mere five (5) kilometres away. The undisputed evidence is that Mzizi relented that he leave because he was not going too far and genuinely believed that he will be back soon. Notwithstanding the request they had cultivated a healthy business relationship between them.

[34] The deceased was unreachable on his cell phone from approximately twelve (12) o’ clock on 22 September 2018. He failed to take calls from both Mzizi and his employer Matjane Ntombela. He had been in his employment for three (3) years and was the star next to the moon. He had been to many special trips all sanctioned by the owner. Therefore, he could not have surrendered possession of the motor vehicle without a just cause to a person who was not even a friend. There is no known reason why he will disappear without a trace. It was suggested that a few weeks prior to his disappearance he was assaulted for an illicit love affair. The details of the incident as to when, why, where and how were not revealed. This remains just a mere allegation. This court accept that the deceased disappeared shortly after meeting the accused.

[35] The evidence of Mzizi is that he spent 30-minute tending to the deceased’s hair and he was done with him around 6H30 when the accused arrived. According to Exhibit “G” the ignition of the motor vehicle was turned off at 6H28 and turned on again at 7H07. This means that his evidence contradicts the objective facts only in respect of the exact time. The time he took attending to him until the accused arrived is approximately thirty (30) minutes. The chronology of the facts supports the evidence on behalf of the state. In my view it is not fatal and clearly he made a mistake on this aspect. The evidence of the accused is untenable on a number of aspects. It took intense probing for him to categorically state the time that he met the deceased at the salon. He gave a long winded explanation on the events of the day but the time he was at the salon. When he did, his version cannot be supported by objective facts. In fact, his

version proved to be fundamentally flawed.

[36] At 8H15 the motor vehicle had stopped at Bolata. Logic dictates that his presence at the salon could not have taken place. The evidence is that they had been gone together for over one (1) hour at that time. The other aspect is that when they left the salon they went to his house where the accused paid the deceased and they parted ways. At no stage did they go to Bolata. This cannot be true because the admitted record as per Exhibit “G” patently shows that the motor vehicle drove around Bolata for about seven (7) minutes before standing still for about fourteen (14) minutes. Thereafter it left for Phuthaditjhaba. According to him he still had to take a bath, eat breakfast and leave to pick up his friends. This could not be achieved on his version which is not supported by objective facts.

[37] The evidence of Warrant Selepe is that when he received Exhibit “G” he confronted the accused about it. The accused did not only deny being in Bolata on that day but also denied ever setting his foot there. Uncontroverted evidence is that the accused was misleading him because at some stage he was indeed staying at 1525 Bolata.

[38] The other important aspect is whether the accused was staying at 1525 Bolata as at 22 September 2018. In order to prove this aspect, the State relied on the evidence of both Mbanjane and Tau. The evidence of Mbanjane is that he was some kind of a caretaker looking after the house. When she was told that the accused was going to live there, she was relieved because she was constantly worried about the house standing vacant. The key to the property was also in her possession. This is sufficient to hold that her memory of the events is correct because this aspect was a constant worrying factor.

[39] According to her, the accused was the only person who had access to the property. The accused was in occupation until the end of 2019 as he was coming and going at will. He spent whatever time that suited him on the property. As a person who had an interest in the property she was observant enough to monitor his movements during his stay. It must also be noted that she did not even attempt to augment her evidence that the accused stayed there all the time.

[40] The evidence of Tau is that he only moved in around February 2019. He remembers vividly because he was interested in buying corrugated irons but Mngomezulu opted to offer him a place to stay. Prior to him moving in they had spoken about this issue over a period of time. Although he had worked at the property before occupying it, he had never had access to the house. As a resident in the area visiting both Mbanjane and the shebeen nearby, he was aware of an old model Mercedes Benz parked on the property towards the end of 2018. It cannot be said that he has unreliable memory which

cannot be trusted on this issue. His occupation of the property was a culmination of a discussion that had ensued over a period of time. On the basis of this evidence, the inescapable conclusion is that the accused was in occupation of the property on 22 September 2018 until end of the same year. Not only that, he also had the only access to it.

[41] The cause of death is recorded as suspicion of a head injury. The plausible explanation advanced by the medical practitioner is that the deceased suffered a blunt trauma exerted with a measure of heavy force. This conclusion is based on the extent of the bleeding as well as discolouration on other bones. These injuries could have been fatal and she had no soft tissue to determine other injuries.

[42] There was a proposition advanced that the deceased was attacked weeks before he disappeared because of an illicit love affair with someone’s woman. This is nothing but a speculation. No details whatsoever were tendered about this aspect. It will be expected that if this was a fact, Ntombela and/or Lekhotla Malebo could have been confronted about it. These are the two (2) relevant people because he was working for Ntombela and still living under the roof of his father. No reliance can be placed on this aspect. After all the State must prove its case beyond reasonable doubt not beyond all doubt.

[43] The bottom line is that the deceased was found in skeletal form at 1525 Bolata. Given the apparent injuries the cause of death cannot be classified as natural causes. This leads the court to accept the uncontroverted evidence of the medical practitioner.

The legal principles and its application to the facts

[44] The rules of reasoning by inference were laid in R v Blom[1] 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.”

[45] The approach of the court in line with the decision in S v Cooper[2] is that in cases where only circumstantial evidence is tendered, a clear distinction between inference and conjecture must be made.

Circumstantial evidence, the court has held, that it rests ultimately on direct evidence and there must be a foundation of proved or probable facts from which to work. See Griffiths v S[3]. This means that the accused person cannot be found guilty unless the hypotheses had been proved beyond reasonable doubt. In short, each of the facts must be proved beyond reasonable doubt. The court in dealing with evidence of this nature must act in a reasonable manner.

[46] The approach in evaluating and weighing evidence was eloquently laid out in S v Chabalala[4] as follows:-

“The correct approach is to weigh up all elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and,

having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt.”

[47] Importantly the court stated that the evidence must be considered in totality. It is unnecessary for the State to prove each individual piece of evidence beyond reasonable doubt. What needs to happen is that the guilt of the accused must be inferred from a cumulative effect of all facts.

[48] The following are the proven facts:

1. The deceased left the salon at Phuthaditjhaba in the morning of 22 September 2018 lured by the accused to ferry them to the University Campus. It was approximately 7H00. It was the last time he was seen alive.

2. Shortly after leaving the salon the motor vehicle headed to Bolata and stopped there for about fourteen (14) minutes.

3. The accused was in possession of the motor vehicle and on his return home presented with wounds on his hands the very same day.

4. He was arrested later that day in Pretoria still in possession of the motor vehicle entrusted to the deceased.

5. The deceased on the relevant day was at work supposed to be ferrying passengers in areas around Phuthaditjhaba.

6. He was unreachable on his cell phones from the time he left the salon until his remains were discovered about ten (10) months later.

7. The accused stayed at 1525 Bolata from February 2018 until the end of that year. During the time of his occupancy, he was the only person having access to the property.

8. There was no break in or access to the house by any other person during the period mentioned above. The other person who occupied the property namely Blou only did so from February 2019.

9. The accused was an acquaintance of the deceased with no platonic or familial relationship. He (accused) did not know where the deceased was residing.

10. His remains were exhumed at 1525 Bolata buried in a shallow grave in the bedroom once occupied by the accused. The area was covered with a carpet and sealed with cement.

[49] This court is satisfied that the witnesses who gave evidence on behalf of the State were both credible and reliable. Mistakes were committed in their testimonies but these were genuine and concerned only minor aspects of their evidence. Clearly Mzizi made a mistake about the time the accused arrived and left his premises with the deceased. The important part is that he was correct that the deceased was there for approximately thirty minutes and left with the accused. Mbanjane and Tau were consistent in their versions and did not contradict themselves in material respects. They were lucid, candid, easy to remember the chronology of events as well as concede mistakes. They harboured no grudges against the accused or have any interest in the matter. There is no evidence to suggest that they are part of any conspiracy to implicate him in any wrongdoing. Their demeanour in giving evidence impressed this court. Therefore, they are deemed to be credible and reliable witnesses.

[50] The accused was a woeful witness who was argumentative as well as evasive in answering questions. His evidence was full of falsehood and improbabilities. Deliberately he will evade answering a question and instead gave a verbose account largely irrelevant to what was posed to him. His demeanour did not impress the court because he was more interested in raising arguments instead of answering questions. On occasions that he provided a response, it will be after a relentless probing on that issue.

[51] The accused was at pains to describe the time that he met the deceased at the salon. Such a simple question elicited a response after a number of questions were posed to him. According to him they met around 8H15. As stated elsewhere in this judgement, the objective facts point in a different direction. He was confronted by Warrant Officer Selepe about the motor vehicle ever being in Bolata at the time he claimed to have been with the deceased. He vehemently denied ever being at Bolata and no issue was taken with Warrant Officer Selepe pertaining to this aspect. Clearly the accused was misleading him because he was staying at Bolata on the day of the disappearance of the deceased.

[52] He presented to his friend’s wounds on both his hands and claimed to have fought with Khehla. Later he changed his evidence that they only had a quarrel and he was bitten by his pitbulls. The court accepts that it was after he had been to Bolata and he had an altercation with the deceased. The deceased was never seen since he was with him.

[53] There were personal items of the deceased in the motor vehicle. When confronted by Ramohomane about them, his terse response was simply to leave them alone. He did not alert the deceased about them. It is unthinkable that the deceased (a professional driver) will leave behind such important documents for no reason. Further that he will surrender his current source of income to an unknown stranger who did not even possess a professional driving permit, let alone that it was not his own property.

[54] Prior to moving in at 1525 Bolata, the accused, his girlfriend and Mbanjane inspected the house. There was nothing untoward found there. It is accepted that the deep freezer full of soil and the hole in the bedroom were not there. The soil was only discovered by Tau much later. The shallow grave was covered with a carpet and sealed with cement. The victim of these grisly deeds was the deceased who was last seen with the accused.

[55] The conduct of the accused also says a lot. He made no effort to report the disappearance of the deceased to the police despite being requested to do so by his mother. He did not make any effort to meet either Ntombela and the Malebo family to shed light about his disappearance. This is not the conduct of a person who profess his innocence.

[56] The accused intimated that the evidence against him was based on a political conspiracy against his mother who is a prominent political figure in the Free State Province. Probably he was just an unfortunate pawn in a much bigger political game. No evidence was tendered to sustain such baseless claims. It is too much of a coincidence that the proven facts will point to the complicity of the accused in the commission of the offences against him.

[57] The evidence of his mother did not advance his case. She was testifying on the events that she either had no recollection of or plainly does not know. She testified that the accused started staying at 1525 Bolata in September 2017 until Easter 2018. This is refuted by the evidence of both the accused and Mbanjane that he moved in only in the first quarter of 2018. She could not testify with certainty that the accused moved out in March 2018. The simple reason is that she does not reside on a permanent basis at Phuthaditjaba but only visits once a month. Therefore she cannot speak on this subject. The rest of her evidence is inconsequential to the main issues in this matter.

[58] Applying the relevant legal principles to the facts, this court is satisfied that the only way that the accused came into possession of the motor vehicle was that it was forcibly removed from the deceased after he had lured him from the salon that he needed a special trip to go to the University Campus. The only time that the motor vehicle stopped for some time was at Bolata and the conclusion is that at this critical time the accused proceeded to kill the deceased. As the only person who had access to 1525 Bolata and was staying there, concocted a devious plan to dispose of his body by burying it in a shallow grave in his bedroom. His deadly tracks were hidden by covering the area that was dug out by a carpet and

sealing it with cement. These conclusions are on the back of many probative factors all pointing in the direction of one person namely the accused.

[59] The possible motive to do so, in my view, is that the accused wanted transport by hook or crook to undertake a trip to Pretoria. It is also startling that although the deceased supposedly wanted R1 200.00 more than Khehla, the accused never bothered to inform and demand it from his friends. At that time he was unemployed.

[60] Therefore, the court concludes that the State has proved all the elements of the charges to secure convictions and the accused is found guilty as charged.

M. A. MATHEBULA, J

On behalf of the State: Adv. L. B. Mpemvane

Instructed by:

Director of Public Prosecutions

BLOEMFONTEIN

On behalf of Accused: Adv. J Nel SC

Instructed by:

N S Letsela Incorporated

BETHLEHEM

[1] 1939 AD 188 at 202-203

[2] 1976 (2) SA 875 (A)

[3] 2017 ZAKZPHC 13 (6 April 2017)

[4] 2003 (1) SACR 134 (SCA) at 139 I-J