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[2011] ZAGPJHC 164
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S v Mabasa (65/2011) [2011] ZAGPJHC 164 (17 November 2011)
NOT
REPORTABLE
SOUTH
GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO:
65/2011
DPP REF NO:
JPV2011/0045
DATE:17/11/2011
In
the matter between
THE
STATE
and
MTSHENGISENI
MABASA
.............................................................
ACCUSED
Criminal law – trial –
indictment consisting of three charges of murder and one of arson -
accused pouring petrol over
and setting shack alight in which three
deceased persons were sleeping – all died as a result of acute
severe burns –
accused’s defence that it was his sole
intention to destroy shack and its contents rejected – held
that the accused
must reasonably have foreseen the presence in the
shack of his erstwhile girlfriend – dolus eventualis proved
-accused found
guilty of murder (count 1) - no evidence that the
accused should reasonably have foreseen the presence of the other two
deceased
persons in the shack – accused on these charges
(counts 2 and 3) convicted of culpable homicide – on accused’s
version found guilty of arson (count 4).
J U D G M E
N T
VAN OOSTEN J:
[1] The accused is charged on an
indictment consisting of four charges: three of which are murder and
one of arson. The accused
pleaded not guilty to all the charges. In
the plea explanation tendered on his behalf, it was admitted that the
accused set fire
to the shack mentioned in count 4 with the intention
to destroy it and its contents but it was stated that he was unaware
that
the shack was occupied by any person at the time as it was
locked by a padlock on the outside.
[2] The charges preferred against
the accused arise from one single incident. A brief summary of the
facts of this matter is the
following. The accused and Cebisile
Goodness Nkosi (the deceased referred to in count 1 and hereinafter
referred to as “Nkosi”)
were in a love relationship since
2008. After the passing away of her mother Nkosi and the accused
moved into the shack where they
lived together. The accused during
this time purchased several household items for the shack, including
furniture, a DVD player
and a refrigerator. In late 2010 and in
particular 2011 their relationship turned sour and the accused moved
out of the shack to
stay with his parents nearby. The accused
demanded the return of his possessions but the deceased, he
maintained, remained indifferent.
During the late evening of 2 March
2011, the accused proceeded to the shack, poured petrol over it and
ignited the shack. Nkosi
and her two lady friends (the deceased
referred to in counts 2 and 3) were all asleep in the shack. A
portion of the shack burnt
down and the three deceased sustained
acute severe burns, from which they died. Community members soon
arrived on the scene and
the door of the shack, which had been locked
on the inside, as well as the corrugated iron panel to which it was
attached, were
forcefully detached from the rest of the structure in
order to gain access and free the deceased.
[3] A number of admissions were
by consent, recorded in terms of s 220 of the Criminal Procedure Act.
The admissions comprise the
usual formal aspects concerning the
deceased and the photographs that were taken of the scene shortly
after the arrival of the
police.
[4] The State called four
witnesses to testify. Their evidence presented some background and
detail as to the difficulties that
had existed between the accused
and Nkosi as well as the events of the night in question. There were
no eyewitnesses to the incident
itself. Except for the issue
concerning whether the door of the shack was locked from the inside
or outside, I do not consider
it necessary to traverse the evidence
tendered by the Sate in any detail as it merely confirms the summary
of the facts I have
already alluded to. It is only necessary to refer
in some detail to the evidence of Solomon Nkosi, who at the time
resided in a
shack on the premises where the incident occurred. He
testified that he assisted other members of the community in an
endeavour
to extinguish the fire of the deceased’s shack. They
tried to open the door of the shack but were unable to do so as it
was
locked from the inside which caused them to break it open with a
spade thereby enabling two of the deceased persons to exit. His
evidence was not challenged in cross examination, and was furthermore
corroborated by the state witnesses, Izaac Zakhele Ngobese
and Thato
Mokoena, who both rendered assistance in the ordeal.
[5] The accused testified in his
defence as well as his cousin, Pendile Hlatswayo. Hlatswayo did not
take the real dispute in this
matter any further. The accused
provided details concerning the deterioration of his relationship
with Nkosi, since the end of
2010. Giving rise to the conflict
between them, he testified, was his justified demand for the return
of the items he had purchased
for them which were kept in the shack.
At some stage he removed the television set as well as the
refrigerator which he said belonged
to him. The other items he had
purchased including the DVD player, a wardrobe, a sound system and
small items of crockery however,
after the separation, remained
behind in the shack. Nkosi refused to let him have those items back
which caused the ensuing conflict.
Prior to the incident the police
visited the shack in the presence of Nkosi to investigate accusations
she had made that he had,
or had wanted to, assault her. On the
version of the state witnesses Nkosi summoned the police to have the
accused evicted from
the shack. On this occasion, the accused said,
he had not mentioned to the police his demands for the return of the
disputed items,
as he “did not think of that”. On the
evening of the incident, at approximately 20h00, he telephoned the
deceased,
who was still at her workplace, from a public telephone. I
pause to mention that there is some dispute as to whether Nkosi, at
the time, was in possession of her cell phone: Mokoena, testified
that the accused had taken it from her and that he was in possession
thereof as well as her identity document. I do not consider it
necessary to resolve this dispute. To revert to the accused’s
version: he informed Nkosi that he intended burning down the shack
and its contents. A few hours later he proceeded to the shack
in
possession of a 2 litre plastic container filled with petrol which he
had obtained from a generator at his home. On his arrival,
when
everybody was already asleep, he noticed that there was a padlock on
the outside of the door of the shack which led him to
believe that
the door had been locked from the outside and that there was nobody
inside. He however, made no attempts to establish
whether there in
fact were occupants in the shack and without more ado proceeded to
pour the petrol at the door and set it alight.
He immediately
returned home and went to sleep.
[6]
On the evidence as a whole the factual dispute this Court is required
to determine, indeed, is a narrow one, and is this: was
the accused
or should the accused reasonably have been aware that the shack was
occupied by Nkosi and the two other deceased persons
at the time of
setting it alight. The accused’s denial of having been aware of
at least the presence of Nkosi in the shack
is transparently false
and is therefore rejected. The evidence of the state witnesses, in
particular the unchallenged testimony
of Solomon Nkosi I have
referred to, is corroborated not only by two other state witnesses
but also by the photographs taken of
the shack and the detached door
and panel after the incident, clearly depicting a chain connected
with a locked padlock, attached
to the inside of the door. On this
very score the accused’s evidence is contradictory and he
moreover, seemingly as a last
resort, misleadingly maintained that
there must have been two locks: one on the outside and one on the
inside. This is so inherently
improbable that it cannot be accepted
as reasonably possibly true and it is rejected as false. The
accused’s reliance on
the sole intention to damage and destroy
the shack and its contents, when considered on the evidence as a
whole, similarly cannot
be accepted as reasonably possibly true (s
ee
S v Hadebe & others
1998 (1)
SACR 422
(SCA) at 426 f-h;
S v
Shackell
2001 (4) SA 1
(SCA)
para 30). I say so for the following reasons: manifestly absent from
the accused’s version is any reference to a specific
request,
at any time, to Nkosi for the return of his possessions. The accused
merely, in seemingly vague and general terms, described
her attitude
towards his demands as indefferent. But it goes further: Ngobese, the
brother of Nkosi, testified that the accused
was, on two occasions
prior to the incident, reprimanded by him and others about his
aggressiveness towards and abuse of Nkosi,
which led to promises made
by the accused to amend his ways. On none of these, which quite
obviously afforded him the opportune
time for doing so, did the
accused raise his demands. One would furthermore have expected the
accused to have reported his concerns
to the police when they were at
the shack investigating Nkosi’s allegations of assault or to
evict the accused, which, as
I have indicated, he failed to do. On
the accused’s version there was ample opportunity for him to
remove the items, which
he did not avail himself of. He did, as I
have alluded to, remove certain items from the shack: why the
remaining items were not
removed at the same time or even thereafter,
on his version, remains a mystery. And, finally, as correctly
submitted by counsel
for the State, he could quite simply have gained
forced entry to the shack on the evening in question to remove his
possessions,
well aware, if he is to be believed, that Nkosi was
absent. In cross examination the accused tendered the following
transparently
artificial explanation for his failure to do so: such
conduct, he maintained, would have resulted in Nkosi reporting the
matter
to the police. Instead, he resorted to the extreme of burning
down the shack and its contents which had been well planned in
advance.
The accused, as for his demeanour, was an unimpressive
witness: he was evasive on material aspects and I am left with the
clear
impression that the reliance on the demand for his possessions
was much by way of afterthought. For all these reasons I reject the
accused’s version as false.
[7] The evidence shows that the
accused was over possessive and extremely jealous following the
separation. The promises he had
made to desist from his abusive
conduct came to nothing. His persisted in his aggressive behaviour
which was solely directed towards
Nkosi and not the meagre
possessions that, according to him, were still in the shack. Based on
the accepted facts I accordingly
find that the accused, when he set
the shack alight, at least, should reasonably have foreseen that it
was occupied by Nkosi. He
is therefore guilty, on count 1, of murder
on the basis of having formed the requisite intention in the form of
indirect intention
(
dolus
eventualis
) and having
reconciled him with the ensuing result.
[8] The foreseeability test also
applies as for the two other deceased persons referred to in counts 2
and 3. In my view the facts
of this matter fall short of proving
reasonable foresight. The last witness for the State, Bongi Ntsomi,
who was a friend of Nkosi,
testified that the accused telephoned her
the morning after the incident and threatened her that, referring to
the burning of the
shack, the same was going to happen to her as he
had done to them. Although this evidence might faintly point to
knowledge by the
accused that there were persons in the shack at the
time, I am not inclined to place any reliance on it as the witness
may well
have been motivated to say this in view of the bad
relationship that, according to her, had existed between her and the
accused.
There is no evidence to show that the two deceased persons
were present on any other basis than, at best, visitors for that
particular
evening. The exact reason for them being present is simply
unknown. The accused therefore could not have known, and therefore
could
not reasonably have foreseen, their presence in the shack. On
the other hand the accused was undoubtedly and as correctly conceded
by counsel appearing on his behalf, negligent in failing to take any
steps in order to establish whether anyone was present before
igniting the shack. The accused therefore, on counts 2 and 3 is
guilty of culpable homicide. Lastly, on count 4, the accused on
his
version alone is guilty of arson.
[9] In the result the accused is
found guilty on:
9.1 count 1 of murder, as
charged;
9.2 count 2, of culpable
homicide;
9.3 count 3, of culpable
homicide; and
9.4 count 4, of arson, as
charged.
_________________________
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
COUNSEL FOR THE STATE
ADV (MS) P MARASELA
COUNSEL FOR THE
ACCUSED ADV (MS) M LEOTO
DATE OF JUDGMENT 17
NOVEMBER 2011