No body, no problem: State can still argue it’s murder
In cases like that of Lee Mentoor, it's not unheard of for prosecutors to successfully prove murder without a body
State prosecutors don’t necessarily have to wait for police to find a body to charge someone with murder. In fact, according to the National Prosecuting Authority, successful murder prosecutions without bodies are not at all uncommon.
NPA national spokesperson Luvuyo Mfaku told Times Select on Wednesday it was not unheard of for prosecutors to successfully argue murder cases in court even if the victim’s body has not been found.
But, he explained, it all boiled down to the evidence.
“It depends on the body of evidence that they have at their disposal. If you take Constable Frances Rasuge’s case as an example, there was DNA found in the suspect’s vehicle that matched family members. So the presumption was that she was dead.”William Nkuna was sentenced to life in prison in 2004 for former police constable Rasuge’s murder. Her body was subsequently discovered at his Pretoria home in 2012.
“It’s based on what the DNA can prove,” Mfaku said.
“If evidence proves that you were the last person to be with the missing person, and DNA is found, then the presumption is there was a murder.”
Mfaku’s comments come ahead of another court appearance by 29-year-old Onke Mashinini, who has been charged with the murder of missing Roodepoort child Liyaqat “Lee” Mentoor.Three-year-old Lee went missing on March 16 while in Mashinini’s care, and police subsequently found two drops of blood on the bathroom floor of Mashinini’s home in Roodekrans.
DNA testing matched the blood to Lee and Mashinini, who was being held on charges of child neglect, kidnapping and defeating the ends of justice, was also charged with murder.
He is due to appear in the Roodepoort Magistrate’s Court again today. He waived his right to bail when the murder charge was added and on May 3, the matter was postponed to allow the state to finalise the DNA reports.But Lee’s family, during a previous interview with Times Select, questioned why a much-talked-about search warrant for the Mashinini’s home was yet to be obtained by police – more than two months after Lee’s disappearance.
Crucial evidence may have been destroyed or obscured by this late stage, the family argued.
But the state believes it has enough to successfully argue Mashinini’s guilt – and in light of his lack of co-operation on the boy’s whereabouts.
The NPA’s Gauteng spokesperson was not immediately available to clarify the delay in obtaining the search warrant.
Advocate James Grant, a former professor of law at Wits, agreed with Mfaku’s statements but said without a body being found, it would be far more difficult for the state to argue a killing had taken place as per the definition of murder.“In theory, there is absolutely no reason why there has to be a body for a murder charge,” he said.
“The burden of proof that is on the state is the same. But, with no body, it does open the door for defence attorneys to argue that no murder had taken place,” Grant explained.
Legal expert Ulrich Roux disagreed, saying he could not see it being a successful prosecution on murder charges if no body was found.
“Only once they have a body, can they charge anyone with murder.
“Highprofile cases such as the Henri van Breda, Oscar Pistorius and Jason Rohde matters – all of those, the only direct evidence the state has is led by the accused person. The state always has to rely on circumstantial evidence in such cases where there are no direct eye witnesses.
“It is easier to prove that a crime has been committed when there is a witness, but the state has successfully argued cases such as these.
“Once the young boy’s body is found, and it is found he was in fact murdered, then the blood drops in the house will obviously play a very crucial role,” Roux said.
Other cases where the state argued murder without a body:
• Zwelibanzi Zungu, 33, was sentenced to life in prison by the Pretoria High Court in 2015 after a private prosecution, for the 2012 murder of Nandi Mbizane. Blood was found on the walls of her Johannesburg flat which led police to believe she was killed. To date, Mbizane has not been found.
• Sayfydeen Del Vecchio, 38, Fatima Patel, 27, Themba Xulu, 19, and Ahmad Mussa, 36, are facing two charges of murder among other charges for the killings of British botanist couple Rodney and Rachel Saunders who went missing in Northern KZN in February this year. The body of 74-year-old Rodney was found late last month, but Rachel remains missing. Their Toyota Land Cruiser was found a few days after their disappearance with blood inside it.