S v Nkuna

• Jurisdiction: South Africa
• Judge: Hendricks J
• Judgment Date: 17 November 2005
• Citation: 2012 (1) SACR 167 (B)
• Docket Number: CC113/2005
• Hearing Date: 03 October 2005
• Counsel: JJ Smit SC for the State. P Moloto (attorney) for the accused.
• Court: Bophuthatswana High Court

Hendricks J:

Introduction E

[1] The fundamental issue to be decided in this case is whether an accused person can be convicted of murder where the body of the deceased person is not found. Secondary hereto is the question whether F such a finding can be made in circumstances where nobody claims to have been told by the accused what became of the body of the person alleged to have been killed, unlike in previous cases of this sort. The accused, William Gadifele Nkuna, is charged with the offence of murder. It is alleged that upon or about 27 August 2004 and at or near Temba, in the district of Moretele, the accused unlawfully and intentionally G killed Frances Nyadi Rasuge, an adult female person, in a manner and by ways and means unknown to the State. To this charge the accused pleaded not guilty and exercised his right to remain silent.

[2] The following admissions were made on behalf of the accused:

•

H the contents of the statement made by the accused on 3 September 2004 in the conspiracy docket he opened against Frances Rasuge and another policeman;

•

that on 28 August 2004, between the hours 20h34 and 23h14, the accused used the cellular phone of Frances Rasuge to make seven I phone calls and received four phone calls;

•

that Frances Rasuge obtained a protection order against him for threatening to kill her on 10 May 2004;

•

that the blood, found on the mat in the boot of the vehicle he was using on 27 August 2004, was taken together with the blood of Frances Rasuge's parents for DNA analysis and that the contents of J the forensic report are admitted.

Hendricks J

The accused confirmed these admissions, and it was handed in as exh A. A

[3] As exh B, was handed in the statement which the accused made on 3 September 2004 as a complainant in a conspiracy-to-murder charge which he had laid against Frances Rasuge and Simon Letsheka, by then a policeman at Temba Police Station. The contents of this statement were read into the record and confirmed by the accused. I will deal later B in this judgment in detail with the contents of this statement.

[4] As exh C, was handed in the protection order which Frances Rasuge obtained against the accused on 10 May 2004, because he threatened to kill her.

[5] As exh D, was handed in the report on the DNA analysis between the C blood found on the boot mat of the vehicle used by the accused and that of the parents of Frances Rasuge. The DNA result is that the probability of parentage is 99,9999%. The accused also confirmed the correctness of the contents of exhs B, C and D as they were handed in.

Summary of the evidence tendered by the State D

[6] The first witness called by the State was William Rasuge, the father of Frances Rasuge. He testified that they were a happy family and that Frances was happy within the family. Her personality was described as that of a jovial person. She was a police constable. He last saw Frances E on the morning of 27 August 2004 between 10h00 and 11h00 when she left for the hair salon. He cannot think of any reason why Frances would leave home and not return for in excess of a year. It never happened previously that she would leave and stay away from her parental home without informing anybody at home about her whereabouts. The disappearance of Frances also received a lot of publicity in the media. F

[7] He became aware of her disappearance on Sunday 29 August 2004 when her colleagues came to collect her for work but did not find her. They returned shortly thereafter to collect her service firearm.

[8] During cross-examination he stated that he was not aware of G Frances' new boyfriend Abner Ramasodi. He also confirmed that the motor vehicle of the accused was used by his family members to travel to Alexandra, Johannesburg, to make funeral arrangements. He did not know that the love relationship between Frances and the accused was terminated.

[The learned judge then set out in paras [9] – [109] the rest of the H evidence led during the trial and proceeded as follows.]

The law and its application to the facts

[110] It is clear that the State relies solely on circumstantial evidence in this case, seeing that no direct evidence was presented. I

[111] To require the production or discovery of the body (corpus delicti) in all cases would be unreasonable and unrealistic and, in certain cases, would lead to absurdities. To my mind it would lead to a gross injustice particularly in cases where a discovery of the body is rendered impossible by an act of the offender himself. J

Hendricks J

A [112] It is thus proper for a court to convict an accused on circumstantial evidence provided it has the necessary probative force to warrant a conviction, and the fact that death can be inferred from circumstances that leave no ground for a reasonable doubt.

[113] It is not hard to think what the state of affairs would be in this B country if the legal position were to be that, whenever a murder is committed and the body (corpus delicti) of a deceased is not found, the accused is then entitled to his acquittal; and that being so, despite the existence of overwhelming circumstantial evidence that points a finger to the accused person. Each case must therefore be decided on its own C merits.

[114] Mr Moloto referred the court to Zeffertt, Paizes & Skeen The South African Law of Evidence (2003 ed)...