THE SUPREME COURT OF APPEAL REPUBLIC OF SOUTH AFRICA

JUDGMENT
In the matter between:

Case No: 479/09

SHIKO PHINEAS MATLOU
First Appellant
WILLIAM SEKWATI SERUMULA
Second Appellant

and

THE STATE
Respondent

Neutral citation:
Matlou v The State (479/09) [2010] ZASCA 52 (31 March
2010)

Coram:
CLOETE, BOSIELO et LEACH JJA

Heard:
16 MARCH 2010

Delivered:
31 MARCH 2010

Summary:
Criminal law – appeal against conviction on charges of
murder and robbery with aggravating circumstances ─
whether incriminating statements were admissible – whether
evidence of the pointing-out of the deceased's body and a
firearm was admissible.

ORDER

On appeal from: the North Gauteng High Court, Pretoria (Jordaan J sitting as
court of first instance).

1.
The appeal by both appellants in respect of the count of murder is
upheld. The conviction and the sentence imposed on this count are set aside.

2.1
The appeal by both appellants in respect of the count of robbery with
aggravating circumstances is upheld to the extent that a conviction of theft of
a Mazda bakkie (registration BCB 759 N), a welding machine and an angle
grinder is substituted.

2.2
The sentence imposed on both appellants in respect of the count of
robbery with aggravating circumstances is set aside and substituted with a
sentence of imprisonment for six years. The sentence is antedated to
25 April 2003 in terms of s 282 of the Criminal Procedure Act 51 of 1977.

3.
The appeal by the first appellant in respect of the count of unlawful
possession of a firearm is upheld and the conviction and the sentence
imposed on this count are set aside.

JUDGMENT

BOSIELO JA

[1] This appeal raises the perennial legal conundrum concerning the
admissibility of evidence of pointings-out obtained as a result of assault by police
officers on arrested persons.

[2] The appellants were charged before Jordaan J in the North Gauteng
Circuit Court, sitting in Tzaneen on charges of murder, robbery with aggravating
circumstances, theft of a firearm, unlawful possession of a firearm to wit a 9mm
Parabellum semi-automatic pistol with serial number 407409 and unlawful
possession of an unknown quantity of ammunition.

[3] At the end of the trial, the first appellant was convicted of murder, robbery
with aggravating circumstances and unlawful possession of a firearm, a 9 mm
Parabellum semi-automatic pistol. He was sentenced to life imprisonment in
respect of murder, 15 years in respect of robbery with aggravating circumstances
and three years in respect of the unlawful possession of the firearm.

[4] The second appellant was convicted in respect of both the count of
murder and the count of robbery with aggravating circumstances. He was
sentenced to life imprisonment in respect of murder and 15 year's imprisonment
in respect of robbery with aggravating circumstances. Both appellants are
appealing against all their convictions with the leave of the court below.

[5] The appellants launched a two-pronged attack against their convictions.
The appellant's main attack is against the admission by the court below of the
evidence of the pointing-out of the deceased's body and a firearm by the first
appellant to the police. The essence of the attack is that these pointings-out form

part of the incriminating statements made by the two appellants to a magistrate
which were found to be inadmissible. The submission was that the evidence of
the pointings-out should have been excluded with the confessions which were
made to the magistrate. The second attack is against the admission of the
incriminating extra-curial admissions made by the first appellant in the presence
of the police to Mr Elvis Senyolo (Elvis) and the deceased's widow.

[6] In order to facilitate an easy understanding of the legal issues involved
herein, a brief resumé of the salient facts of this case is necessary. On 13 March
2002, the deceased left his home at Ga-Dikgale for his place of employment at
Ga-Sekgopo. The deceased stayed there during the week, returning to his home
during week-ends. When he did not arrive home on Sunday 17 March 2002, his
wife Mrs Mamaila Lenah Sehlabana (Sehlabana) went to look for him at his place
of employment. The deceased was not there. She discovered that some of his
property, namely, his vehicle, blankets, a mattress, welding machine and a
grinder were missing. She tried to contact the deceased via his cellular phone but
without success. She then went to report the fact that the deceased was missing
at a local police station.

[7] On Saturday 23 March 2002, one Captain Mainetja received some
information from an informer. He and Inspector Lephala commenced a search for
the first appellant. They later arrested him in the early hours of Sunday morning.
They explained his rights to him. As the first appellant indicated that he did not
want to have a legal representative, they continued to interrogate him. He later
admitted having killed the deceased but stated that he was not alone. Mainetja's
evidence is to the effect that notwithstanding a further advice by him to the first
appellant, he persisted to refuse the assistance of a legal representative.
According to Mainetja, the first appellant told him that he and Mr Kgashare Elvis
Senyolo (Elvis) killed the deceased. The first appellant took the police to Elvis'
home where they arrested Elvis who denied knowledge of the killing of the
deceased. The first appellant told the police that they were in fact three including
accused 2. The first appellant agreed to assist the family of the deceased to
retrieve a firearm.

[8] On the same Sunday morning the first appellant took the police to a
deserted place approximately 30-45 km away. It was in a bush. However, as it
was still dark they found nothing but smelt a bad odour as if an animal had died.
The first appellant then took them to another place, which was some 100 km
away. He then told them that he had hidden the firearm there and that only he
knew about it. Upon arrival at that place they all alighted. The first appellant
pointed a spot out from where Mainetja retrieved a firearm hidden under a tree in
a bush. He later took the police to where they retrieved the missing welding
machine and grinder, which they impounded.

[9] They then returned to the original place where they had earlier failed to
find the deceased's body. Upon arrival they found a spent cartridge. The
appellant then told the police that that is where he shot the deceased on his
chest to make sure that he is dead. They later found the deceased's
decomposed body in a ditch deeper into the bush. The deceased's spouse
identified the body to be that of deceased. As part of the head of the body was
missing she asked what had happened to it. The police told her to ask the first
appellant, whereupon he replied that when they threw the deceased's body there
his head was still intact.

[10] Elvis testified that he knows both appellants. They are both his aunt's
sons. He confirmed that one Friday the two appellants arrived at his home. The
first appellant was driving a vehicle, a Mazda bakkie. The two appellants asked
him to take them to a traditional doctor at a place called Shawela. After they had
seen the traditional doctor, he and Edwin drove with the second appellant,
apparently to go and look for small change to pay the traditional doctor. The first
appellant remained behind as he had fallen asleep. On the way the second
appellant lost control of the vehicle and it overturned. The second appellant gave
Elvis R2 000 and a cellular phone to Edwin. On Saturday morning the police
came to arrest him. When he asked why the police were arresting him, the police
said he must ask the second appellant, whereupon the second appellant said it is
because they both killed a person. According to Sihlabana and Elvis, the first
appellant was never assaulted or threatened to make the pointings-out as well as
the utterances which he made in their presence.

[11] As the appellants disputed that their statements were made freely and
voluntarily, a trial-within-a-trial was held. At the end of the trial-within-a-trial, the
learned judge excluded the evidence of pointings-out relating to the deceased's
body and firearm, but found that the discovery of the deceased's body and the
firearm by the police were admissible.

[12] Mr Phetole Manthakga (Manthakga) testified that the grinder was retrieved
by the police from him on 24 March 2002. The welding machine was retrieved
from Mr Mohale David Machete (Machete). According to the police it is the first
appellant who took them to these people. It is not in dispute that the motor
vehicle (Mazda bakkie), the grinder and the welding machine were identified by
the deceased's wife as the deceased's property.

[13] The first appellant did not testify in his defence whilst the second appellant
did. The second appellant denied any involvement in the killing of the deceased.
He furthermore denied ever driving in the deceased's vehicle or giving some R2
000 to Elvis or a cellular phone to Edwin.

[14] In his evaluation of the evidence, the learned judge rejected the second
appellant's version as false. The learned judge found that there was sufficient
circumstantial evidence, in the absence of an acceptable explanation, to come to
the conclusion that the appellants were involved in one way or another in the
killing of the deceased. He also found that the deceased died a violent death.
Furthermore, the learned judge found that both appellants were in possession of
property belonging to the deceased soon after the deceased's death. Concerning
the first appellant the learned judge found further that the fact that he pointed out
the firearm to the police is proof that he possessed it.

[15] The crisp issue in this appeal is whether the learned judge was correct in
admitting the evidence of the pointings-out regarding the deceased's body and
the firearm by the first appellant, notwithstanding the fact that they formed part of
confessions and admissions which had been found to be inadmissible because
of the assault perpetrated on the first appellant.

[16] Counsel for the appellants submitted that the entre evidence of pointings-
out which include the discovery of the deceased's body and the firearm should
have been excluded as they all formed part and parcel of each other. This
contention is based on the fact that first appellant was assaulted by the police
during these pointings-out. Counsel contended that all this evidence is tainted by
the assault by the police on first appellant. Counsel argued further that if this
evidence is excluded, there would be no evidence regarding the crucial aspects
concerning the place, date and cause of the deceased's death. In the result this
would mean that the allegation that the deceased was shot with a firearm when
he was robbed of his belongings remained unsupported by any evidence. It
follows, so it was argued, that the only competent verdict in the circumstances
would be simple theft of the deceased's property (Mazda vehicle, grinder and
welding machine).

[17] On the other hand, counsel for the respondent argued that the State had
adduced sufficient circumstantial evidence which proved conclusively that both
appellants were involved in the killing of the deceased. This submission was
based on the evidence of both the deceased's spouse and Elvis that the first
appellant was never assaulted in their presence when he allegedly made the
pointings-out, Accordingly it was contended that the court below was correct in
accepting the evidence of pointings-out of the deceased's body and the firearm.
Counsel argued further that the fact that both appellants were found driving the
deceased's vehicle coupled with the fact that they possessed some of his
belongings soon after his death which they either gave away or sold for a
pittance, justify the conclusion that they were both involved in the killing of the
deceased.

[18] The following facts are either common cause or not seriously disputed: the
deceased was known to the appellants; the deceased was killed between 13 and
15 March 2002; some items of property belonging to the deceased were stolen
during the same period, both appellants were seen driving a Mazda vehicle, later
identified to belong to the deceased soon after the deceased's death; the first
appellant sold the deceased's welding machine for R100 to Machete on 20
March 2002, the first appellant gave away the grinder to Manthakga on 18 March

2002 for having helped him to tow away the deceased's stolen vehicle; the
second appellant gave the deceased's cellular phone to Edwin. Of great
significance is the fact that all these items which were proved to belong to the
deceased were possessed by the appellants soon after the deceased's death.

[19] I am prepared to accept that the very fact that the appellants were in
possession of the deceased's stolen property soon after his death, might justify
the inference that the appellants were involved in the deceased's death. I must
confess that such an inference appears to be both reasonable and compelling.
However, it can hardly be said to be the only reasonable inference consistent
with the proven facts. What compounds the problem is that there is no evidence
as to when and how the deceased was killed. It is noteworthy that,
notwithstanding the respondent's allegations that the deceased was shot, the
post-mortem report does not support such a finding. It follows, in my view, that
such an inference cannot be drawn as it would be in conflict with the salutary
principles enunciated in R v Blom, 1939 AD 188.

[20] I find that the learned judge erred in accepting the evidence of the
pointings-out by the first appellant. I agree with appellants' counsel that the fact
that when the first appellant made a confession to the magistrate on 26 March
2002, he still had injuries which appeared to be fresh, suggests strongly that the
assault meted to him must have been serious. I find the submission by
respondent's counsel that it is possible that the second appellant was only
assaulted by the police after he had already made the pointings-out to be without
merit. Why would the police assault him if he had already incriminated himself by
pointing-out highly incriminating evidence. To my mind, it makes perfect sense
and accords with logic that the first appellant could only have been assaulted by
the police before the pointings-out in order to coerce him to do so. Undoubtedly,
such evidence would have been obtained in contravention of the first appellant's
rights ensconced in s 35(1)(a); (b); and (c) of the Constitution, Act 108 of 1996,
which provides:
(a) 'Everyone who is arrested for allegedly committing an offence has the right – (a) to
remain silent; (b) to be informed promptly –
(i)
of the right to remain silent; and

(ii)
of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be used in
evidence against that person;'.

[21] The question that instantly comes up for consideration is what should
happen to the first appellant's evidence of pointings-out. This aspect is governed
by s 218(2) of the Criminal Procedure Act, 51 of 1977 (the Act) which provides
that:
'Evidence may be admitted at criminal proceedings that anything was pointed out by an
accused appearing at such proceedings or that any fact or thing was discovered in
consequence of information given by such accused, notwithstanding that such pointing
out or information forms part of a confession or statement which by law is not admissible
in evidence against such accused at such proceedings.'

[22] Undoubtedly, there is a direct clash between s 218(2) of the Act and s
35(1)(a); (b); and (c) read with s 35(5) of the Constitution. It is this conflict which
we are required to resolve in this appeal. The answer to this somewhat
intractable legal conundrum lies in s 35(5) of the Constitution which provides:

'Evidence obtained in a manner that violates any right in the Bill of Rights must be
excluded if the admission of that evidence would render the trial unfair or otherwise be
detrimental to the administration of justice.'

[23] Relying on the authority of R v Samhando 1943 AD 608 and S v
Sheehama 1991 (2) SA 860 (A) the learned judge admitted the evidence
concerning the alleged discussion which the first appellant allegedly had with the
deceased's spouse during which, at the suggestion by the police, she asked him
where the deceased's missing head was and to which he replied that when he
threw the deceased's body in the bush, it still had its head intact. The learned
judge found that this conversation is in a different category as opposed to a
disclosure to the police. He further found that the first appellant could either have
responded or refused to respond to this question by the deceased's spouse. To
my mind, the learned judge erred in this respect. It is clear that the first appellant
was under arrest and in the presence of more than one police at this critical
stage of the investigation. It is the police that instigated or prompted the

deceased's spouse to ask the first appellant this question which elicited such an
incriminating response. The possibility that the first appellant was under the
undue influence of the police at the time cannot be excluded. To my mind, this
negated any volition which he might have had to refuse to answer. See R v de
Waal 1958 (2) SA 109 (GW) at p 111A-112F.

[24] Secondly, the learned judge admitted the evidence on the basis that, had
it not been for the pointings-out by the first appellant, the police would not have
discovered the deceased's body. The same reasoning underpinned the
admission relating to the pointing-out and discovery of the firearm. Once again
the learned judge ignored the fact that these pointings-out happened at the
instance and in the presence of the police. There is no evidence that the first
appellant had been advised of his right to remain silent, or not to make any
statement that might incriminate him and what the purpose and legal
consequences of not remaining silent or making pointings-out are. Evidently all
this was done in contravention of the rights of the first appellant as embodied in s
35(1)(a); (b); and (c) of the Constitution.

[25] It is unfortunate, if not regrettable, that the learned judge never considered
the applicability of s 35(1) read with s 35(5) of the Constitution and their impact
on the admissibility of the impugned evidence. It is furthermore regretable that it
does not appear from the record that the learned judge's attention was drawn to
the approach adumbrated by Van Heerden JA in the seminal judgment of S v
January; Prokureur-Generaal, Natal v Khumalo 1994 (2) SACR 801.

[26] Cachalia JA succinctly set out the legal position regarding the admissibility
of such evidence before and after our new Constitution in S v Mthembu 2008 (2)
SACR 407 (SCA) at paras 22 and 23 as follows:
'[22]
In the pre-constitutional era, applying the law of evidence as applied by the
English courts, the courts generally admitted all evidence, irrespective of how obtained,
if relevant. The only qualification was that "the judge always (had) a discretion to
disallow evidence if the strict rules of admissibility would operate unfairly against an
accused." And where an accused was compelled to incriminate him or herself through a
confession or otherwise the evidence was excluded. However, real evidence which was

obtained by improper means was more readily admitted (and also because its admission
was governed by statute). The reason was that such evidence usually bore the hallmark
of objective reality compared with narrative testimony that depends on the say-so of a
witness. Real evidence is an object which, upon proper identification, becomes, of itself,
evidence (such as a knife, firearm, document or photograph – or the metal box in this
case). Thus, where such evidence was discovered as result of an involuntary admission
by an accused, it would be allowed because of the circumstantial guarantee of its
reliability and relevance to guilt – the principal purpose of a criminal trial. As a rule,
evidence relating to the "fruit of the poisonous tree" was not excluded.'

[27] There was however some resistance to this line of reasoning deriving from
normative considerations. In S v Sheehama, Grosskopf JA stated that it was a
basic principle of our law that an accused cannot be coerced into making a self-
incriminating statement. He thus held that s 218(2) of The Criminal Procedure
Act 51 of 1977 did not authorise evidence of forced pointings-out even though it
arguably did so. And in S v Khumalo 1992 (2) SACR 411 (N) at 420 Thirion J
said that involuntary statements made by accused persons are inadmissible
against them, not only because they are untrustworthy as evidence but, quoting
Lord Hailsham, 'also, and perhaps mainly, because in a civilized society it is vital
that persons in custody or charged with offences should not be subjected to ill-
treatment or improper pressure in order to extract confessions'.1 With the advent
of the new constitutional order looming Van Heerden JA, in S v January;
Prokureur-Generaal, Natal v Khumalo, confirmed this line of thinking when he
observed that there has '(i)n this century . . . rightly been a marked shift in the
justification for excluding. . . involuntary confessions and admissions, and it is
now firmly established in English law that an important reasons is one of policy.'2
In making this observation he was able to depart from the reasoning in earlier
cases, referred to above, which had placed their emphasis only on the relevance
and reliability of the evidence. He thus held that proof of an involuntary pointing-

1 Quoting Lord Hailsham in R v Wong Kam-ming [1980] AC 247; [1979] 1 All ER 939 (PC) at
261.
2 A 807g-h.

out by an accused person is inadmissible even if something relevant to the
charge is discovered as a result thereof.'3

[28] What comes forcefully to the fore is the ever-present tension between the
State's obligation or duty to see to it that people who commit crimes are arrested,
investigated, prosecuted and held accountable for their deeds and its equally
important and onerous duty to ensure that the conduct of those saddled with the
duty and responsibility to investigate and prosecute offenders is proper and
above board. That it is sometimes difficult to resolve this tension admits of no
doubt. This difficulty is described by Kriegler J in Key v Attorney General, Cape
Provincial Division And Another 1996 (2) SACR 113 (CC) at para [13] as follows:
'In any democratic criminal justice system there is a tension between, on the one had,
the public interest in bringing criminals to book and, on the other, the equally great public
interest in ensuring that justice is manifestly done to all, even those suspected of
conduct which would put them beyond the pale. To be sure, a prominent feature of that
tension is the universal and unceasing endeavour by international human rights bodies,
enlightened legislature and courts to prevent or curtail excessive zeal by State agencies
in the prevention, investigation or prosecution of crime. But none of that means
sympathy for crime and its perpetrators.  Nor does it mean a predilection for technical
niceties and ingenious legal stratagems. What the Constitution demands is that accused
be given a fair trial. Ultimately, as was held in Ferreira v Levin, fairness is an issue which
has to be decided upon the facts of each case, and the trial Judge is the person best
placed to take that decision. At times fairness might require that evidence
unconstitutionally obtained be excluded. But there will also be times when fairness will
require that evidence, albeit obtained unconstitutionally, nevertheless be admitted.'
See also S v Pillay & Others 2004 (2) SACR 419 (SCA) para [11].

[29] Reverting to the facts of this case, it is clear from the proven evidence that
the evidence of the pointings-out by the first appellant and the concomitant
utterances made by him were crucial to the State's case. Evidently the pointings-
out led to the discovery of the deceased's body as well as the firearm. What is
also clear is that these pointings-out were made soon after the first appellant had
been arrested. The first appellant alleged that he was seriously assaulted, inter

3 See generally DT Zeffertt, AP Paizes and A St Q Skeen The South African Law of Evidence
(2003) at 500-505.

alia, by being repeatedly hit with an electric cable by the police throughout his
arrest. The police denied any assault on the first appellant. However, when the
first appellant appeared before the magistrate to make a confession some two or
three days after his arrest, he exhibited to him some injuries on his body. It is
noteworthy that the magistrate independently observed that the injuries appeared
to be recently sustained. It is fair to conclude that the injuries meted out on the
first appellant were inflicted by the police between the time of his arrest and
appearance before a magistrate. To my mind, pure logic and common sense
dictates that the assault must have been perpetrated with the primary purpose of
inducing the first appellant to co-operate and assist the police in their
investigation which led to the discovery of the deceased's body and the firearm.

[30] There is no suggestion that these pointings-out would have been made
without the assault. I agree with counsel for the first appellant that this evidence
was irredeemably tainted by the assault on the first appellant. I have no doubt
that admitting such evidence would not only render the trial unfair but would also,
as Cachalia JA quoting Lord Hoffman's remarks in Mthembu's case remarked at
para 36: '. . . it is tantamount to involving the judicial process in "moral
defilelment."' This 'would compromise the integrity of the judicial process (and)
dishonour the administration of justice.' I harbour no doubt that the evidence
should not have been admitted. See S v Potwana & Others 1994 (1) SACR 159
(A) at p 164a-b; S v Tandwa & Others 2008 (1) SACR 613 (SCA) para [89].

[31] Both counsel were agreed that, should we exclude the evidence of
pointings-out, the counts of murder, robbery with aggravating circumstances
(involving the alleged shooting of the deceased with a firearm) and unlawful
possession of a firearm would have to fall away. However, the evidence of
Mathakga about how the first appellant gave him a grinder on 18 March 2002
after he had towed the Mazda vehicle for him; Machete about his purchase of the
welding machine on 20 March 2002 from the first appellant for R100; Edwin and
Elvis about how both appellants came to their home in the Mazda vehicle during
or about 15 March 2002; Edwin's evidence that the second appellant gave him a
cellular phone; remains unaffected by the exclusion of the evidence of the
pointings-out.

[32] This evidence stands as an unshakeable edifice against them. They failed
to proffer any reasonable explanation for their possession of the deceased's
property soon after he was killed. To my mind, the fact that there is no evidence
regarding when and how the deceased was killed, in particular the failure by the
doctor who did the post-mortem examination to find any evidence of wounds
caused by bullets, leads to the inexorable conclusion that the appellants could
only be legitimately convicted of theft of the deceased's property as there is no
doubt that the items of property referred to above were positively identified as
belonging to the deceased.

[33] It follows that the appeal must succeed to the extent that the appellants
are acquitted on all the other counts except theft of the Mazda vehicle, the
grinder and the welding machine.  Evidently the fact that the appellants have now
been convicted of theft demands that we interfere with the sentence imposed on
them and to replace it with a sentence that is balanced and fair to both the
appellants and society in general and which is commensurate with the gravity of
the offence for which they have been convicted.

[34] Both appellants were first offenders. Since their arrest they were both held
in custody. Crucially they have already served a substantial part of their sentence
since they were sentenced on 25 April 2003. Fairness and justice demand that
we take these factors into account and accord them their proper weight in
determining an appropriate sentence. However, these should be balanced
against the following facts. Both appellants worked with the deceased. The
appellants showed no respect for the deceased's property. The welding machine
was sold for a paltry R100 whilst the grinder was given away for some towing
service. The vehicle belonging to the deceased was damaged when the second
appellant capsized it. Thereafter they simply abandoned it. To my mind this
amounts to sheer arrogance. In the circumstances of this case, I think that a
sentence of six years' imprisonment would serve both the interests of society as
well as remain fair and balanced.

[35] In the result the following order is made:

1.
The appeal by both appellants in respect of the count of murder is
upheld. The conviction and the sentence imposed on this count are set aside.

2.1
The appeal by both appellants in respect of the count of robbery with
aggravating circumstances is upheld to the extent that a conviction of theft of
a Mazda bakkie (registration BCB 759 N), a welding machine and an angle
grinder is substituted.

2.2
The sentence imposed on both appellants in respect of the count of
robbery with aggravating circumstances is set aside and substituted with a
sentence of imprisonment for six years. The sentence is antedated to
25 April 2003 in terms of s 282 of the Criminal Procedure Act 51 of 1977.

3.
The appeal by the first appellant in respect of the count of unlawful
possession of a firearm is upheld and the conviction and the sentence
imposed on this count are set aside.
___________________
L O BOSIELO
JUDGE OF APPEAL

CLOETE JA (Leach JA concurring):

[36] I have had the advantage of reading the judgment of my colleague
Bosielo JA. I have reached the same conclusion, but I prefer to state my own
reasons.

[37] The two appellants were convicted of robbing and murdering the
deceased with a firearm and the first appellant was also convicted of the
unlawful possession of that firearm. I should say at the outset that the first
appellant gave no evidence in the main trial and the rejection by the trial court
of the second appellant's evidence was not challenged on appeal.

[38] It was formally admitted by the appellants that the deceased died
between 13 and 15 March 2002 in consequence of injuries sustained between

those dates. The post mortem report, also formally admitted, was inconclusive
as to the cause of death as the body (which was admitted to be that of the
deceased) was in an advanced state of decomposition. The deceased had
been partially decapitated but there was no evidence to suggest how this
might have come about.

[39] Both appellants worked together with the deceased. The evidence led
by the State showed the following sequence of events. On Friday 15 March
2002 the appellants were seen together in the deceased's Mazda LDV and
they both drove it; it was damaged when it turned over whilst the second
appellant was at the wheel; and the second appellant gave the deceased's
cellular telephone to Mr Edwin Motlakale Senyolo. On Monday 18 March, Mr
Phetole Alfeus Manthakga towed the Mazda with his tractor at the request of
the first appellant, for which the first appellant gave him the deceased's angle-
grinder. On Wednesday 20 March, the first appellant sold the deceased's
welding machine to Mr Mohale David Machete for R100 to enable him to put
petrol in the Mazda. The conduct of the appellants in dealing with the
deceased's property as they did gives rise to the inference that they were
aware of his death when they did so.

[40] The first appellant was arrested at about 11 pm on Saturday 23 April
2002. Thereafter, during the same night, Mr Elvis Kgashane Senyolo ('K S
Senyolo') was arrested. When he asked why, the police told him to ask the
first appellant; and when he did so, the first appellant said that it was because
the two of them had killed a person (which K S Senyolo immediately denied).
After K S Senyolo had been arrested, the first appellant took the police to a
place where he attempted to point out something, but it was too dark to see.
At about 6 am the next morning (Sunday 24 April) the first appellant took the
police to Machete's home where they took possession of the deceased's
welding machine and thereafter, approximately an hour later, he took them to
Manthakga's home, where they took possession of the deceased's angle-
grinder. Later the same morning they returned to the place ─ termed by the
trial court ''n verlate plek' ─ where the first appellant had earlier attempted to
point out something and the first appellant there pointed out the place where

he said he had disposed of the body of the person he had killed. There was
an empty cartridge case on the scene. The deceased's widow was called by
the police and in her presence the deceased's body was found hidden in a
hole amongst rocks. She asked what had happened to the deceased's head
and the first appellant replied that when he had thrown the body there, it had
still had a head. Also on the Sunday morning the first appellant pointed out to
the police a hidden firearm. Two days later, on Tuesday 26 April, each
appellant made an incriminating statement to a magistrate.

[41] After a trial within a trial, the trial court found that the State had not
excluded the possibility that the first appellant had been assaulted and
accordingly, that it had not established that his statement to the magistrate
had been freely and voluntarily made. The principal reason for this conclusion
was the fresh injuries he showed the magistrate which were inconsistent with
the State case that he had never been assaulted. I am unpersuaded that
there is any basis to interfere with this finding.  The second appellant's
statement to the magistrate was excluded for different reasons. However, the
trial judge took into account the statements made by the first appellant to K S
Senyolo and to the deceased's widow and the fact that it was he who had
pointed out the deceased's body and a firearm to the police. The trial judge
relied on the decisions of this court in R v Samhando4 and S v Sheehama5 as
entitling him to do so. Neither the decision of this court in S v January;
Prokureur-generaal Natal v Khumalo6 nor the implications of s 35(1)(a) and
(c) of the Constitution, were apparently drawn to his attention. It is at least a
reasonable possibility that the assault on the first appellant, which the trial
court found may have occurred, commenced shortly after his arrest and in
consequence, that all the pointings out and statements made by him, up to
and including his statement to the magistrate, were not freely and voluntarily
made. All that evidence therefore falls to be excluded.

4 1943 AD 608.
5 1991 (2) SA 860 (A).
6 1994 (2) SACR 801 (A).

[42] I find it unnecessary to consider whether the fact that the deceased's
body, angle-grinder and welding machine were found should also be excluded
from consideration (contrast S v Tandwa7 and S v Mthembu8 with the
dissenting judgment of Scott JA in S v Pillay & others9). It was the evidence of
the police that none of these things would have been found but for the first
appellant's pointing out their whereabouts.10 Even if the evidence is admitted
in terms of s 35(5) of the Constitution, there is not sufficient evidence to
convict either of the appellants of murder, robbery or possession of a firearm.
So far as the murder is concerned, there are several hypotheses consistent
with the proved facts and inconsistent with the appellants' guilt, one being that
the one appellant killed the deceased without the complicity of the other and
then agreed to share the deceased's possessions once the other found him
out. So far as the robbery is concerned, there is no evidence that violence
was used by either appellant to deprive the deceased of his property, much
less (as alleged in the indictment) that there were aggravating circumstances
present because a firearm was used. The finding of the firearm is a
completely neutral fact. For that reason, the conviction of the first appellant for
possession of it must be set aside.

[43] Counsel for the appellants correctly accepted that the evidence
established that they were guilty of theft of the deceased's property, including
his motor vehicle. Taking into account all the purposes which underlie the
imposition of sentence, and giving due weight to the personal circumstances
of the appellants ─ particularly that they were first offenders ─ I consider that
a sentence of six years' imprisonment would be just.

7 2008 (1) SACR 613 (SCA).
8 2008 (2) SACR 415 (SCA).
9 2004 (2) SACR 419 (SCA) para 8:
'I would imagine, for example, that most fair-minded people, certainly in South Africa with its
high crime rate, would baulk at the idea of a murderer being acquitted because evidence of
the discovery of the victim's concealed body would render the trial unfair.'
10 The significance of this evidence appears from both the majority (paras 87 to 89) and
minority (paras 7 to 9) judgments in S v Pillay & others, above, n 6.

[44] It is for these reasons that I concur in the order made by my colleague
Bosielo JA.

_______________
T D CLOETE
JUDGE OF APPEAL

APPEARANCES:

For appellant:
M K STEENEKAMP

Instructed by:

Legal Aid Board

For respondent:
J H C VAN HEERDEN

Instructed by:

Director Public Prosecutions, Pretoria

Director Public Prosecutions, Bloemfontein