Rothman v S (A53/24) [2025] ZAGPPHC 1373 (19 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1373 | Noteup | LawCite sino index ## Rothman v S (A53/24) [2025] ZAGPPHC 1373 (19 December 2025) Rothman v S (A53/24) [2025] ZAGPPHC 1373 (19 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1373.html sino date 19 December 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case No: A53/24 (1)     REPORTABLE: NO (2)      OF INTEREST TO OTHER JUDGES: NO (3)      REVISED: NO DATE 19 December 2025 SIGNATURE In the matter between: GAOPALELWE ABRAM ROTHMAN Appellant and THE STATE Respondent JUDGMENT JANSE VAN NIEUWENHUIZEN J (HASSIM J et  MANAMELA AJ concurring) Introduction [1]      The appellant was convicted on three counts: housebreaking with intent to commit murder, robbery with aggravating circumstances, and murder. He was sentenced to 10 years’ imprisonment on Count 1, 15 years’ imprisonment on Count 2, and life imprisonment on Count 3. [2]      Leave to appeal against conviction was granted by the Supreme Court of Appeal on 16 August 2023. Evidence [3]      Constable Lentlopane, the first state witness, testified that he was on patrol duty in a Police Van during the early hours of 24 May 2016 and that he was accompanied by a female Constable Mosebetsi. Constable Lentlopane received a complaint of a housebreaking and drove to the direction of the complaint. On their way they accosted the appellant that was walking from the direction where they were told the complaint is. The appellant carried a rucksack on his back. [4]      Constable Lentlopane stopped the appellant and asked him where he was going. The appellant answered that he is from home on his way to work. Constable Lentlopane knew that the appellant resided in another portion of town and not believe the appellant’s version. When Constable Lentlopane came closer to the appellant, he noticed blood spots on his clothing.  Constable Lentlopane asked the appellant to remove the items from his racksack. Photos were taken of the items in the racksack and the photos were introduced into evidence by agreement. [5]      During cross-examination it was put to Constable Lentlopane that the appellant had told him that “ two men that attacked them were going down the street.” Constable Lentlopane denied this. On the appellant’s version the only items in the rucksack that belonged to him are the three CDs and a packet of Weet-Bix. [6]      Itumuleng Ezekiel Mqikela (Mqikela), the brother of the deceased and the second state witness, testified that he and the deceased arranged to buy electrical supplies on the 24 th of May 2016. It appears that the deceased did some electrical work and Mqikela testified that he would have assisted the deceased with the work after they had purchased the supplies. Mqikela stated that he was very close to his brother and knew all his friends. Although the deceased knew the appellant, they were not friends. [7]      Keikanna Bertha Moiloa (Brenda), the third state witness, testified that she was in a relationship with the appellant during 2013. During 2015 the appellant contacted Brenda and informed her that his wife has left him. He has tried to get her back, but to no avail. Brenda referred the appellant to a traditional healer for help. The traditional medicine did not have the desired effect and, according to Brenda, the appellant became impatient and send her a message with the following content: “I want this person dead”, because the person has taken his woman. Brenda could not recall the name of the person. Three weeks after receiving the message Brenda learnt that the appellant had been arrested. [8]     The appellant admitted that he was in a relationship with Brenda, but denied the remainder of her evidence. [9]      Constable MMamorena Mosebetsi, the fourth state witness, was with Constable Lentlopane when they accosted the appellant. Her evidence confirmed the evidence of Constable Lentlopane in all material aspects. [10]    Eliot Mathatha Mekgwe (Mekgwe), the fifth state witness, who worked at the same place as the deceased testified that the appellant visited him on the evening of 23 May 2016 at 19:45. The appellant asked Mekgwe at what time the deceased will report for duty and Mekgwe answered that he did not know because he is working in the dispatch department. The appellant admitted that he visited Mekgwe on the evening in question but denied the conversation referred to by Mekgwe. [11]     Sergeant Musa Pitso, the sixth state witness, testified that he was on duty when the appellant was brought to the Police Station. He was responsible to record evidence in the SAP13 register and he booked in the cell phone found in the appellant’s possession. [12]    Doreen Matsepe Rothman, the estranged wife of the appellant was the seventh state witness. Doreen testified that she married the appellant in 2005 and that their marriage was not a happy one. During 2015 the appellant accused Doreen of having a romantic relationship with the deceased. Doreen stated that the deceased was a colleague of her at some stage and that she knew the deceased as a friend. She was, however, at that stage not in a romantic relationship with him and she told the appellant that his accusation was untrue. [13]    The marriage relationship deteriorated to such an extent that Doreen moved out of the common home on 25 December 2015. She maintained her friendship with the deceased and the relationship blossomed into a romantic relationship in February 2016. [14]    The appellant denied that he accused Doreen as alleged by her and stated that he learned about the romantic relationship between Doreen and the deceased for the first time in court. [15]    The eight-state witness, Donald Mashidiso Montshonyane (Tshidi), was the traditional healer that attended to the appellant. Tshidi testified that the appellant consulted him towards the end of April 2016 and told him that he had problems with his wife. Tshidi gave the appellant some herbs and after a week the appellant phoned him and asked when will the herbs help him to get his wife back. Tshidi explained to the appellant that the herbs take time to work and that the appellant should be patient. The appellant asked Tshidi whether a person who for instance committed murder and had to go to jail needed to be cleansed after his release. Tshidi found the question strange and wanted to know from the appellant why he is asking such a question. The appellant’s answer did not make much sense. Tshidi’s evidence was not challenged by the appellant. [16]    Edward Boetie Matlhoko, the ninth state witness, was the investigating officer. Matlhoko visited the crime scene on the morning of the 24 th of June 2016 and testified that forced entrance was gained into the house through a window. The frame of the window was forced open. Matlhoko found a piece of a hand glove on the scene and the piece fitted into the gloves that were found in the appellant’s possession during his arrest. Matlhoko also had access to the messages on the appellant’s cell phone and found a message with the following content: “ I am aware you are having an affair with the accused’s wife. I just want to warn you, you know how that accused is, he is going to kill you if he can find out about that.” [17]    Matlhoko testified that he found the blade of a knife at the scene which blade fitted into the handle of the knife that was found in the appellant’s possession when he was arrested. Matlhoko showed the knife to the appellant’s family to determine whether the knife looks familiar to them. The family did not recognise the knife and Matlhoko proceeded to the appellant’s house in the company of the appellant’s brother to search for a similar knife/knives. Matlhoko found a case with a set of knives that are similar than the one found on the scene. One of the knives were missing. During cross-examination it was put to Matlhoko that the last time the appellant saw the knife set all the knives were there. [18]    Matlhoko made use of CCTV footage to determine that the deceased drove straight home from his place of employment on the morning of the 24 th of June 2016. Lastly, Matlhoko testified that the distance from the deceased’s home to the place where the appellant was accosted by the police officers was approximately a quarter of a soccer field.[19]Matlhoko’s evidence concluded the state’s case and the appellant testified in defence. [19]    The appellant testified that he was a friend of the deceased and was requested by the deceased to accompany him to Rustenburg on the morning of 24 May 2016. The deceased worked until 4:00 and picked the appellant up on his way home. Upon arrival at the deceased’s house, the appellant went to the sitting room to watch TV. Whilst sitting in front of the TV, the appellant heard footsteps and felt someone grabbing him from behind. The person placed a knife against the appellant’s throat told him that he may not say anything and must follow the person’s instructions. [20]    The appellant was pushed to a room where he found the deceased with someone  holding a knife to his throat. One of the intruders wanted to know where the money was kept and the appellant answered that he does not stay in the house and does not know where the money is kept. The deceased told the intruder that he does not keep money in the house whereupon the intruder started assaulting the deceased. [21]    The deceased struggled with the intruder and eventually freed himself whereafter he jumped through a window shattering the windowpane in the process. The person holding the appellant ran after the deceased and also jumped through the window. The appellant ran to the bathroom and a while later he heard the deceased screaming for help. When the noise died down the appellant tried to leave the house, but the door was locked and he decided to exit through the broken window. He found the deceased laying outside the house and only the deceased’s hand moved. The appellant arranged the deceased into a sitting position trying to wake him up and saw that the deceased was bleeding. [22]    The appellant testified that he became confused and that he jumped over the wall. The appellant noticed people in the distance and shouted at them. The persons ran away and one of them threw a bag away. Upon closer inspection, the appellant realised that it is the bag he had brought along for the trip to Rustenburg. The appellant picked up the bag and decided to go to the Police Station to get help. [23]    On his way to the Police Station the appellant came across a police van and a male police officer exited the van. The police officer asked the appellant where he comes from, and the appellant answered that he was from Makete (the deceased) and that they were attacked. The police officer noticed the bag in the appellant’s possession and instructed him to remove all the items from the bag. [24]    Once the items were removed from the bag, the police officer called the female police officer that accompanied him and told her to place the items back in the bag. The appellant was then searched by the male police officer. Whilst being searched the appellant directed the police officer’s attention to the direction the attackers disappeared to. The police officer told the appellant to “ shut up”, pushed him into the van and closed the door. [25]    In respect of the seriousness of the deceased’s injuries, the appellant was asked during cross-examination why he did not use his cell phone to immediately call for help. The appellant responded that he did not have airtime on his cell phone. When asked why he did not run to the Police Station, the appellant answered that he did initially run, but he got tired and started walking. It was at this stage that he saw the police van. It was put to the appellant that he apparently tires quickly because the house of the deceased is a quarter of a soccer field from the place where he accosted the police and given the seriousness of the deceased’s injuries one would have expected him to run all the way to the Police Station. The appellant insisted that he walked because he got tired. It was put to the appellant that he did not ran at all because he did not want to attract attention at that time of the morning. The appellant denied this. [26]    The appellant admitted that he did not tell the police officers that his friend is barely alive and needed urgent medical attention. The appellant could not provide an explanation for his failure to inform the police officers of the deceased’s dire condition. [27]    The appellant struggled to explain why, although he moved the deceased who was covered with blood to a sitting position, he did not have blood on his hands. It was put to the appellant that the reason he did not have blood on his hands is because he was wearing gloves. The appellant denied this and stated that he cleaned the blood from his hands by wiping them on his jeans. Photos of the jeans he wore during the incident were presented and the appellant could not explain why there are no signs of blood on the jeans. [28]    The appellant was confronted with the fact that the gloves found in his possession by the police officers had the deceased’s blood on it. The appellant stated that he “ cannot answer for the gloves” . [29]    The appellant admitted that the knife found on the scene was similar to the set of knives that was confiscated from his house by the police. The blade of the knife was found on the murder scene whereas the handle of the knife was found in the appellant’s bag a few minutes after the incident. The appellant did not deny these facts and could not explain how the handle of the knife that was supposed to be at his house with the rest of the set ended up in the bag he carried with him shortly after the incident. [30]    The appellant could not explain why the deceased would request him to go to Rustenburg in circumstances where he already had an appointment with his brother. The appellant could, furthermore, not explain why the deceased would ask the man with whose he has a romantic relationship to accompany him. [31]    It was put to the appellant that his version of events did not accord with the timeline. The deceased’s bakkie was picked up on the CCTV at 03:55. The appellant agreed that the CCTV footage showed that the deceased went straight home. That would have entailed that the deceased first went home and thereafter left to pick up the appellant. The appellant agreed with this proposition. Once, they arrived at the deceased’s house, the appellant used the bathroom and went to watch TV thereafter. The attack happened and after the appellant jumped over the wall and was walking for some distance he accosted the police. The appellant agreed with all of the aforesaid. Notwithstanding the aforesaid, the appellant was arrested at 04:20. [32]    When it was put to the appellant that it was impossible for all the aforesaid to have happened in 20 minutes, the appellant responded as follows: “ It might sound as if it is impossible, but it has happened.”. [33]    Mamelo Petros Gwase (Gwase) the appellant’s uncle was called by the defence as a witness. Gwase confirmed that there were problems in the appellant’s marriage relationship with his wife. [34]    The last witness for the defence was the appellant’s brother, Philip Grant Rothman (Philip”). Philip’s evidence did not take the matter any further. Grounds of Appeal [35]    The appellant appeared in person and raised various grounds of appeal including a point in limine. ​ Point In Limine – Violation of Constitutional Rights [36]    The appellant alleged that his constitutional rights under section 35 of the Constitution were violated during his arrest and detention, as he was not informed of his rights and consequently his right to a fair trial had been violated. [37]    This alleged violation of the appellant’s section 35 rights was never raised during the trial and as a consequence, no evidence was led to support the appellant’s contention in this regard. In the result, the trial court’s failure to deal with the alleged violation of the appellant’s constitutional rights was not an error and it is legally untenable to raise the point for the first time on appeal. The point in limine is dismissed. DNA Evidence and Chain of Custody [38]    The appellant argued that the DNA evidence was improperly handled and that the chain of custody was broken. However, the trial court admitted the DNA report by consent, and the appellant through his legal representative did not challenge its admissibility during the trial. In the result, the trial court did not err in relying on the DNA evidence in determining whether the State has established the appellant’s guilt beyond a reasonable doubt. Failure to Call Witnesses ​ [39]    The appellant contended that the State failed to call a certain Mr. Venter, whose testimony, according to the appellant, could have corroborated the appellant’s version of events. The State is dominus litis and has the prerogative to present evidence it deems necessary to secure a conviction. The appellant was, in any event, at liberty to present the evidence of Mr Venter, if he was convinced that Mr Venter’s evidence would corroborate his version. Ineffective Legal Representation [40]    The appellant alleged that his legal representative failed to adequately prepare for trial and made concessions that were detrimental to his case. ​ While the court acknowledges the importance of effective legal representation, the record does not support the claim that the appellant’s legal counsel acted in a manner that rendered the trial unfair. The concessions made by the defense attorney were based on the evidence presented and do not amount to incompetence or a failure to represent the appellant’s interests. Circumstantial Evidence [41]    The appellant argued that the trial court erred in its evaluation of circumstantial evidence and made findings that were not supported by the evidence. ​ The trial court conducted a detailed and critical examination of the evidence and correctly applied the principles pertaining to circumstantial evidence as laid down in Gcaza v S [2017] ZASCA 92. The trial court’s findings were consistent with the proven facts and excluded reasonable inferences other than the appellant’s guilt. Absence of a Warrant [42]    The appellant alleges that the knife that was removed from his house was in breach of section 21(1) of the Criminal Procedure Act, 51 of 1977 , in that the knife was seized without a warrant. Consequently, the knife should not have been admitted into evidence and the trial court erred in this regard. The admission of the evidence pertaining to the knife that was seized from the appellant’s house was not objected to during trial and the State was not afforded an opportunity to address the issue. In the result, the trial court did not have to rule on the issue and there is no basis in fact or law to allege that the trial court erred in this regard. Evidence of the Witnesses [43]    The appellant went to great lengths to dissect the evaluation by the trial court of the evidence of the witnesses that testified at trial. The appellant submitted that the trial court erred in almost all of its findings based on the evidence and in conclusion contended that these errors vitiate his conviction. [44]    The test on appeal is whether the court a quo was correct in convicting an appellant on the totality of the evidence presented during the trial. The evidence presented by the State, seen in totality, is overwhelming. This includes the knife handle that found in the appellant’s possession, the bloodied piece of glove that had the deceased’s blood on it that was found in the appellant’s possession, coupled with the evidence of three independent witnesses.  In the face of the aforesaid evidence, the appellant’s version was correctly dismissed by the court a quo and the conviction should stand. Order The appeal against conviction is dismissed. JANSE VAN NIEUWENHUIZEN JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION DATE HEARD: 27 October 2025 DATE DELIVERED: 19 December 2025 On behalf of the Appellant:       In Person On behalf of the Respondent:   Adv Molokomme sino noindex make_database footer start