[MEDIA SUMMARY] Burger v The State

During May 2000, three policemen collected Mr Sandy Botomane from his home in Atteridgeville, informing him they wanted to question him about a recent theft at Putco and instructing him to accompany them. They subsequently sought his assistance to trace another suspect. According to the policemen, he volunteered to help and led them to an address in Sebokeng where, during the early morning hours of 23 May 2000, he fled. Approximately 26 hours after being taken from his home, Mr Botomane's body was found on the N1 national highway near Vanderbijlpark during the early morning hours of 24 May 2000, in circumstances appearing to be a hit-and-run collision. The Pretoria High Court convicted the three policemen of murder and kidnapping, sentencing them to life imprisonment.

• Whether the circumstantial evidence was sufficient to prove beyond reasonable doubt that the policemen murdered Mr Botomane
• Whether the high court properly applied the rules relating to the acceptance of circumstantial evidence
• Whether the policemen kidnapped the deceased by deceiving him into accompanying them
• Whether the evidence established that the deceased voluntarily accompanied the policemen

The appeal was upheld. The convictions for murder and kidnapping and the related sentences of life imprisonment were set aside.

When evaluating circumstantial evidence in a criminal trial, a court must properly apply the established rules for acceptance of such evidence. A conviction cannot stand where the circumstantial evidence is equally consistent with alternative explanations, including the innocence of the accused. Medical evidence indicating that injuries are consistent with multiple scenarios (including both criminal conduct and accident) combined with evidence of threats from other quarters and absence of evidence linking the accused to the deceased during the relevant period creates reasonable doubt that precludes conviction. For a kidnapping conviction to be sustained, there must be evidence that the victim did not voluntarily accompany the accused; where admissible evidence indicates voluntary accompaniment, a kidnapping conviction cannot stand.

The court expressed serious concern that some of the police investigation methods used in the case were reminiscent of the apartheid era and inconsistent with constitutional values. The court noted with disquiet the blurring of lines between private and police investigations and the use of police resources by private investigators. While these observations did not form part of the binding ratio, they reflect the court's emphasis on the need for policing practices to conform to constitutional standards in the democratic South Africa.

This case is significant in South African criminal law for reaffirming the proper application of rules relating to circumstantial evidence in criminal trials. It emphasizes that courts must carefully consider all alternative reasonable inferences from circumstantial evidence and cannot convict where the evidence is equally consistent with innocence as with guilt. The case also highlights constitutional concerns about police investigation methods and the inappropriate blurring of lines between private and police investigations, marking a departure from apartheid-era policing practices that are inconsistent with constitutional values.