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[2013] ZAGPJHC 114
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S v Mdluli and Another (JPV 2010/0046) [2013] ZAGPJHC 114 (17 May 2013)
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NOT REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO: JPV 2010/0046
DATE:17/05/2013
In
the matter between
THE
STATE
and
NOMSHADO
JODI
MDLULI
............................................................................
ACCUSED
1
SYDNEY
MONYANE RAMOHALADI
….......................................................
ACCUSED
2
J U D G M E N T
VAN
OOSTEN J
[1] The accused are charged on an
indictment consisting of altogether 12 counts, as follows: count 1
(arson), counts 2, 3 and 4
(murder), and counts 5 to 12 (attempted
murder). They pleaded not guilty on all counts. Accused 1 elected not
to tender a plea
explanation. Counsel for accused 2 disclosed the
defence of accused 2 as an alibi in respect of which certain
particulars were
put on record.
[2] A number of admissions were by
consent recorded in terms of section 220 of the Criminal Code. The
admissions comprise the usual
admissions in respect of the three
deceased persons, referred to in counts 2, 3 and 4,
ie
their
identity, the injuries they sustained and the correctness of the
facts and findings contained in the post-mortem reports.
Lastly, an
album containing photographs of the scene of the incident, all taken
shortly after the occurrence thereof, was admitted.
[3] Altogether 11 witnesses testified
for the state. As part of the state’s case counsel for the
State applied, in terms of
s 235
of the
Criminal Procedure Act 51 of
1977
, for the admission into the evidence of the record of the bail
proceedings in respect of both the accused. The application was
opposed by both counsel for the defence. Having heard and considered
argument I granted the application in respect of a limited
portion of
accused 1’s evidence given at the bail proceedings and
dismissed the application in respect of accused 2’s
evidence.
Both accused testified and no witnesses were called for the defence.
At the end of the evidence I directed that argument
be presented in
respect of accused 2. Having heard argument accused 2 was acquitted
on all charges and the case against accused
1 postponed for argument
and judgment. I indicated that reasons for the order in respect of
accused 2 would form part of this judgement.
[4] The sole issue for determination
by this Court is the reliability and acceptability of the
identificatory evidence adduced by
the state concerning the presence
of the accused at the scene of the crimes. The fact of the crimes
having been committed is not
in dispute.
[5] Before I deal any further with the
disputes in this matter it is necessary to briefly summarise the
salient facts of this matter.
Some background facts first need to be
stated: The
dramatis personae
at the time of the incident
were: Sophy Sekoati (the complainant mentioned in counts 1 and 7),
her 14 year old son TS (the complainant
referred to in count 12), and
daughter MGS (the deceased referred to in count 3) and her 4 months
old child S (the deceased referred
to in count 2); Tshepiso Sekoati
and her 18 months old child, L (the deceased referred to in count 4);
Lerato Sekoati (the complainant
referred to in count 8 and the
daughter of MGS); SS (the complainant referred to in count 10 and 14
years old brother of L). I
shall refer to them as the Sekoati
household. They were all living at what in short was referred to in
the evidence as Mapetla,
which is the house situate at no 1554
Neeleng street, Mapetla, Soweto (Mapetla). Situated on the same
premises were a number of
shacks rented out to the occupants. Amongst
the tenants were Mohlalefi Lekgoloane (the complainant referred to in
count 5), his
brother Teboho Legoloane (the complainant referred to
in count 9) and his daughter D L (the complainant referred to in
count 11),
as well as Sello Mhlabane (the complainant referred to in
count 6). I shall in accordance with the evidence adduced before me
refer
to the witnesses by their first names.
[6] Accused 1 is married to Ndumiso
Mbatha. Three children were born from the marriage. Ndumiso is also
the father of two children
born out of wedlock. Their marriage
relationship broke down and for a period of two years they were
separated. During the separation,
and between approximately 2004 and
2008 a relationship developed and existed between Ndumiso and
Tshepiso. The child, L, was born
from the relationship. Four months
after the birth of L, in 2008, their relationship terminated. This
led to the revival of the
erstwhile marriage relationship between
accused 1 and Ndumiso. Accused 1, although she was aware of her
husband’s extra marital
affair and the birth of L, only met
Tshepiso during the latter part of 2009. It is necessary to summarise
the events following
upon the meeting which were extensively dealt
with in the evidence of the state witnesses Tshepiso, Sophy and
Lerato as they are
not only relevant but also of crucial importance
in the adjudication of this case.
[7] Tshepiso testified that it was
Ndumiso’s failure to properly maintain and care for their
child, L, which coincidentally
led her coming into contact with
accused 1: during September/October 2009, her telephone call to
Ndumiso’s cell phone, in
order to inform him of L’s
illness, was instead answered by accused 1. In the conversation that
followed they introduced
themselves to each other and they agreed to
meet. Tshepiso said that accused 1 explained that she was in
possession of Ndumiso’s
cell phone as she had taken it from him
during a fight the previous evening “over Tshepiso”. They
eventually met at
Mapetla in the presence of other members of the
Sekoati household. Introductions followed and the ensuing
conversation involved
topics such as Tshepiso’s concerns about
Ndumiso’s neglect of L and accused 1 (who was pregnant at the
time) in turn
lamenting why her husband had cheated on her. Accused 1
thereafter again visited Mapetla but on this occasion Tshepiso was
absent.
In further telephone conversations between Tshepiso and
accused 1, accused 1 told her to leave Ndumiso alone and to get out
of
his life and that she and Ndumiso “were making a fool of”
her. Tshepiso’s response was that L was her concern
and nothing
else. In yet another telephone conversation while accused 1 was still
in possession of Ndumiso’s cell phone,
Tshepiso gave her the
assurance that she would only phone that number again if L’s
interests were at stake. During December
2009 L again fell ill.
Tshepiso phoned Ndumiso who promised to come to them. Instead, she
received a
sms
from Ndumiso prompting why she was not taking
the child to the doctor and pay for it with her own money and that
Ndumiso was using
Tshepiso as a “spare dish”.
[8] The next meeting between them took
place in January 2010, again in response to a telephone call by
Tshepiso to Ndumiso concerning
L’s illness. This time he
answered and kept his promise to come. They had a discussion at
Mapetla in the evening. Sometime
between 20h00 and 21h00 someone
opened the kitchen door. Tshepiso heard a female voice saying “Give
this to Tshepiso”.
Lerato, who was present, remarked that it
was Nomshado (
ie
accused 1) whom she had seen throwing down a
black plastic bag with contents in the kitchen. The plastic bag was
later opened and
the contents thereof consisted of, what the
witnesses referred to as, snipped rags/
doek
/clothing/torn
rags. Tshepiso, Lerato and Sophy ran outside and observed accused 1
who was at the gate leaving the premises. Sophy
asked the accused
what her problem was. The response consisted of insults of all kinds,
aimed primarily against Tshepiso and warning
her to leave Ndumiso
alone. Sophy suggested that they all go to Ndumiso’s parent’s
house to discuss the issue. Accused
1 refused and drove off in her
vehicle. Tshepiso and Sophy then hired a taxi and proceeded to
Ndumiso’s parent’s house
taking the black bag with them.
Lerato remained behind. There they encountered Ndumiso, his mother
and two sisters as well as accused
1, who was having dinner. Ndumiso
promptly departed from the gathering. Sophy related to Ndumiso’s
family what had earlier
happened at Mapetla. Accused 1 denied ever
having said anything to Sophy or having been at Mapetla. Sophy showed
the bag and the
contents thereof to all who were present thereby
attempting to prove that accused 1 in fact had been at Mapetla. Sophy
testified
that accused 1 threatened to kill both Tshepiso and L.
Ndumiso’s mother remarked that if she is going to kill them, L
was
her grandchild and Sophy, Tshepiso’s mother. Accused 1
became aggressive and uttered threats. I shall revert to this
incident
(the bag incident) later in the judgment.
[9] The last telephone conversation
between Tsephiso and accused 1 occurred in January 2010. Again L’s
illness caused her
to phone the cell phone number of Ndumiso. Accused
1 told her, in English, to stay away from her husband to which she
added, referring
to L: “I wish the bastard was dead”.
That was the last contact they had with each other.
[10] The State called Mr Pillay, the
Manager: Law Enforcement Agencies at MTN to testify concerning the
MTN cell phone records in
respect of cell phone calls made from and
received at accused 1’s cell phone from 18h44 on the day of the
incident until
21h29 the next day. His evidence was not challenged.
The significance thereof is that the record shows that accused 1, at
the time
of the incident, was in the vicinity of Soweto and surrounds
and that she later that evening, sometime after 22h00, proceeded to
Lichtenburg
via
Carletonville, Ventersdorp and Coligny and
that she remained there until the next day. The trail of accused 1’s
movements
proved by the cell phone records, except for certain times
which I shall revert to, broadly accord with her evidence in this
court.
[11]
On 2 May 2013, I granted the following order:
‘
The
application by the state in terms of
s 235
of the
Criminal Procedure
Act 51 of 1977
, for the admission of the transcript of the record of
the bail proceedings,
In
respect of accused 1, is granted to the extent that only the record
of the evidence of accused 1 at the said bail proceedings,
after the
warning in terms of
s 60
(11B) (c) of the CPA had been given, is
allowed.
In
respect of accused 2, is dismissed.’
What follows are the reasons for the
order. First, the application in respect of accused 1. She testified
in the bail application
before the Regional Magistrate, in Protea,
Soweto, on 31 March 2010. Counsel now appearing on her behalf also
did so at the bail
proceedings. Accused 1 was called to testify.
Having stated her personal particulars (so I have been informed by
counsel) the Regional
Magistrate interrupted her evidence and
enquired from counsel whether he had explained to the accused the
warning provided for
in
s 60(11B)(c)
of the
Criminal Procedure Act 51
of 1977
. Counsel for the accused informed the court that he “was
still coming to that” whereupon the Regional Magistrate
mero
motu
proceeded, “on your [counsel’s] behalf”,
to warn the accused in terms of the section. The accused, in response
to a question by the Regional Magistrate, confirmed that she
understood the warning. The Regional Magistrate then informed her
as
follows:
‘
Now
you may proceed and inform us about your defence in the matter as
your legal representative asked you to disclose the same
if you so
wish
.’
[emphasis
added]
Counsel for the accused’s first
question directed at the accused, following the warning, was the
following:
‘
Madam,
my question was as you have indicated to this court that you are
intending to plead not guilty is there any defence
that
you
would like this court to know about?
’
[emphasis
added]
The objection against the admission of
the bail proceedings record of the evidence raised by counsel for
accused 1, is this: although
the contents of the warning accords with
the section, it was improperly given, as it should have been given at
the commencement
of the evidence of the accused and not, as it
happened, during her evidence, and further, that there was duty on
the Regional Magistrate,
as part of the warning, to advise the
accused that she was entitled to, had she wanted to do so, decline to
proceed with her evidence
or to abandon the application for bail. The
argument is untenable. It is true that in the judgment of Kgomo J in
S v Agliotti
2012 (1) SACR 559
(GSJ) it was specifically
stated that the warning must be given “right at the beginning
of the proceedings” (at p 566).
I do not think that the learned
Judge intended by this to lay down a rule of thumb. All that the
section requires is that “the
court must inform him or her of
the fact that anything he or she says, may be used against him or her
at his or her trial…”.
It therefore doesn’t matter
at exactly what stage of the proceedings the warning was given, as
long as it was before the
incriminating evidence was given. This is
exactly what happened here: as the emphasised portions of the record
indicate accused
1 was warned before she commenced with disclosing
her defence. That the warning was given after she had stated her
personal particulars
is of no moment: she disclosed her defence after
the warning had been given and, moreover, after she had been given
the opportunity
by both her counsel and the court the reconsider her
position in the light of the warning. I accordingly find that there
was no
duty on the Regional Magistrate, after she had been warned, to
advise her of the options then available to her, which her counsel
could have advised her of. Accused 1, in any event, clearly intended
to proceed with the disclosure of her defence. It follows
that
fairness prevailed. I accordingly, in the exercise of my discretion,
allowed the evidence of accused 1, from after the warning
had been
given (see
S v Basson
[2004] ZACC 13
;
2004 (6) BCLR 620
(CC) para [26]-[27]
and
S v Basson
2005 (12) BCLR 1192
(CC) para [107]-[123]).
[12] As for the application in respect
of accused 2 it was common cause that no warning had been given. For
that reason alone, the
record of his evidence is inadmissible (see
S
v Snyman en ‘n ander
1999 (2) SACR 169
(C)).
[13] This brings me to the incident at
Mapetla, which occurred on 16 March 2010. During the early evening
altogether 11 persons
(referred to above with the exception of
Tshepiso, who was at work at the time) were seated in the
lounge/dining room of the house,
watching the serial, or
soapie
as
it was referred to, “Generations”, on television. It
ended at 20h30. Just then an unknown male person entered the
house
through the kitchen. He was described in the evidence of Lerato,
Sophy and Tebeho as the man with the dreadlocks, which is
a hair
style consisting of matted coils of hair tightly woven into locks at
approximately shoulder length. He was armed with a
firearm and
accompanied by a second man immediately behind him, also unknown, who
was wearing a beanie or woollen hat covering
his head but not his
face. He had a black plastic bag in his possession and was also armed
with a firearm. The second man was identified
by Lerato as accused 2.
[14] The man with the dreadlocks
instructed Sophy, Mohlalefi and others to go into one of the two
bedrooms, which was facing the
street (the first bedroom). Accused 2
handed the plastic bag to the man with the deadlocks who removed a 2
liter plastic bottle
from the bag and started spraying the contents
thereof, smelling of and probably being petrol, on Lerato, Sello and
others. They
then also went into the first bedroom. The man with the
dreadlocks ordered Makgotso and the two children into the other
bedroom
(the second bedroom). He then poured the contents of the
bottle into the second bedroom. At that stage a woman entered the
house,
also through the kitchen, into the dining room. She was
wearing a balaclava which covered her face except for her mouth and
eyes.
This person was identified by Lerato and Sophy as accused 1.
[15] Both Lerato and Sophy testified
that Makgotso, from where she was in the second bedroom, asked
whether she could be allowed
to take the children out of the room.
Accused 2, according to Lerato, in response, shook her head from side
to side, thereby indicating
a definite “no”. The man with
the dreadlocks threw a blanket at the doorway separating the two
bedrooms and flames
erupted. Those in the first bedroom opened the
windows, drew the curtains and Mohahlefi forcefully removed the
burglar bar. Lerato
looked outside and saw accused 1 leaving the
premises through the front gate and then turning left away from the
house and removing
the balaclava. She mentioned this to Sophy who
confirmed that she had also seen accused 1, after she had jumped out
through the
window. She called for help. She returned to the inside
of the house through the door. She met Makgotso, who was on fire,
outside
the house. Sophy entered and was carrying L, who was also on
fire, to the outside water tap where she held him under running
water.
The paramedics, fire brigade and members of the community
arrived on the scene.
[16] It is not in dispute that the
most of the interior of the house was extensively damaged by the fire
and that the three deceased
died as a result of burns sustained
during the incident. The complainants referred to in counts 5 to 12,
although present in the
house, escaped and were not burnt. The extent
of the damage caused by the fire to the bedrooms and dining room of
the house as
well as to part of the adjacent shack is depicted on the
photographs in the album.
[17] The events I have thus far
referred to were described in evidence by Lerato, Sophy and Teboho.
Tebeho, although materially
corroborating the events as described by
Lerato and Sophy, and himself being doused in petrol, was unable to
identify any of the
assailants. His evidence was not challenged in
cross-examination.
[18] Lerato identified one of the male
assailants, who had followed the man with the dreadlocks into the
house, as accused 2. Sophy
made a “dock identification”
in identifying accused 2 in court as the assailant with the
dreadlocks. They both identified
accused 1 as the woman intruder and
added that she was well-known to them. The evidence of these
witnesses must accordingly be
subjected to careful examination and
evaluation in the light of the alibi raised by both accused. I shall
revert to the evaluation
of their evidence later in the judgment.
[19] Tsephiso gave evidence in which
she described the events between her and accused 1 since they their
first meeting in approximately
September 2009. Her evidence must be
considered in conjunction with and against that of accused 1. There
are material differences
in their versions which I shall revert to in
the consideration of accused 1’s version.
[20] I turn now to the identification
of accused 2 by Lerato. It is at the outset necessary to state that
no other evidence of complicity
in the commission of the crimes
exists against accused 2. The credibility on the one hand and the
reliability of Lerato’s
evidence identifying accused 2 on the
other must accordingly be considered. Of crucial importance and
providing a strong indication
as to the correctness of her
identification of accused 2 is that she pointed him out at an
identification parade that was conducted
at Diepkloof police station,
on 6 October 2010. It is well-entrenched that evidence of
identification must be carefully examined
as to credibility generally
and reliability of observation in particular (
S v Mthetwa
1972
(3) SA 766
(A) 768). In the consideration of these aspects the
evidence as a whole will be considered in order to determine whether
the state
has proved its case against accused 2 beyond reasonable
doubt.
[21] In her evidence Lerato provided a
number of identifying features which she said enabled her to identify
him. In this regard
she mentioned slender built, medium height, a
chubby face and, very importantly to her, that he had so-called
“chinese eyes”.
In cross-examination she experienced
considerable difficulty in explaining what exactly she tried to
convey by “chinese eyes”.
Eventually she resorted to the
meaning thereof in “street language”. But even that was
of little assistance in establishing
the real meaning of the
expression. Except for the “chinese eyes” none of the
identifying features mentioned by her
is of any particular
significance. Compounding the difficulty of course is that accused 2
was wearing a “beanie” which
covered his head and must
have made identification at least more difficult.
[22] The identification parade was
held some 7 months after the incident. The police officials who were
involved in conducting the
parade all testified. I do not consider it
necessary to traverse their evidence. Suffice to say that no
irregularities were committed.
One single difficulty however arose
when Lerato testified that she was accompanied, after arrival at the
Diepkloof police station
with her handler (under the witness
protection programme) from the waiting room by a police official whom
she knew from having
seen him in the company of other policemen at
the scene. Her description of the man, it is common cause, fits
Warrant Officer Tsotetsi,
who also testified. Whether or not it was
really him, for purposes of deciding this issue, does not matter.
Fact is that the police
official she described was neither Const
Sithole, who testified that she escorted Lerato from the vehicle in
which she and her
handler had arrived at the police station, to the
guard room inside the police station; or Sergeant Mhlongo who
testified that
she had escorted Lerato from the guard room to the
identification room, or Detective Warrant Officer Mngoma who was in
control
of the identification parade. I am unable to reconcile the
evidence of Lerato on this aspect with the evidence of the three
police
officials. In addition, assuming her description of the police
official fits Warrant Officer Tsotetsi, his evidence likewise
contradicts
her in denying that he was at all involved in the
identification parade.
[23] I have come to the conclusion
that Lerato’s evidence on this aspect was unsatisfactory. I am
unable to find a reason
for the unsatisfactory portion of her
evidence. As I will presently deal with I am unable to find that she
was dishonest in any
way. She therefore must have been mistaken.
Whichever way one describes the unsatisfactory portion of her
evidence, some weight
must be attached to it. That portion of her
evidence concerns her observations at the identification parade. She
is a single witness
on the identification of accused 2. There is not
the slightest shred of evidence corroborating her identification of
accused 2.
A reasonable doubt accordingly exists and accused 2 is
entitled to the benefit thereof. For these reasons I, at the end of
argument,
acquitted accused 2 on all charges.
[24] In her evidence accused 1 (the
accused) dealt extensively with both her relationship with the
Sekoati household and the alibi
relied upon. She testified that she
had just on the previous Friday relocated from Orange Farm to
Lichtenburg where her 2 children
(presently 9 and 6 years old) were
enrolled at school. While in Lichtenburg a meeting was arranged on
the Monday with the teacher
of her children to facilitate their
transfer from Johannesburg to Lichtenburg, for Wednesday 17 March, in
the afternoon. She however
needed certain documents which were
required by the teacher. The documents were still at her erstwhile
home in Orange Farm and
she decided to go and fetch them. She left
for Johannesburg on Monday evening at 20h00 and was accompanied by
her mother and two
children. She described her movements on the
evening of the incident, being the Tuesday, as the following: Until
19h00 she was
at home in Orange Farm. She had to meet with friends at
Maponya Mall in Soweto, at “eightish” that evening. She
left
Orange Farm at 19h00 and met her friends at Maponya Mall at
20h20. At approximately 21h00 she received a
please call me
message from her mother and on phoning her, she enquired when the
accused would be leaving. She eventually picked her mother and
children up at 21h30 and immediately proceeded back to Lichtenburg.
[25] Along the way to Lichtenburg she
received a cell phone call from her sister-in-law enquiring about the
whereabouts of her husband
and informing her that there had been an
accident or fire at Mapetla. She phoned her husband who told her that
he was aware of
the incident and that he was planning to go there.
Half an hour later her husband phoned her and informed her that the
community
had been at his parental home and that they had broken into
the house, because, so they informed him, the accused had been
involved.
He also told her that they were looking for her. He further
told her that he was on his way to Mapetla and that his mother was on
her way to the police station to open a case of housebreaking. In a
further conversation, sometime later, he informed her that
the
situation at Mapetla was out of hand and that somebody at the house
had claimed that they had seen her (the accused) outside
the house
during the incident. She decided to turn back to Johannesburg
immediately but was persuaded by her husband to rather
proceed to
Lichtenburg which she did.
[26] Outside Ventersdorp her vehicle
broke down. She phoned her cousin in Ventersdorp and asked them to
assist. In the meanwhile
she decided to hitch-hike. A truck arrived
and the driver gave her a lift to Lichtenburg. He dropped her off at
the police station
in Lichtenburg. There she spoke to a police
captain and handed him her cell phone for him to speak to her
husband. The captain
took down her cell phone number as well as
contact details and she was allowed to go. She was eventually
arrested on the Thursday
and taken to the holding cells at the
Lichtenburg police station. The next day she transferred to Moroka
police station.
[27] Before proceeding with the
evidence of the accused, it is necessary to assess certain aspects of
her evidence I have thus far
alluded to. There can be no doubt that
she, on her initial version, at the time of the incident, was at
Maponya Mall with her friends.
In cross-examination she changed her
version on this aspect and said that she must have been at a filling
station on the Old Potch
Road at the time. Whichever one accepts,
this vital aspect is directly contradicted by her evidence given at
the bail hearing.
There she testified that at that time she had been
at her “home in Northwest” which of course was
Lichtenburg. When
the accused was cross-examined on this aspect she
maintained that her reference to “Northwest” was a
mistake which
had arisen from the confusion resulting from the recent
re-location to Lichtenburg on the pre-ceding Friday. The explanation
is
seemingly unsatisfactory: neither she nor her counsel at any stage
corrected the “mistake”. It should also be remembered
that the cell phone records of the accused were not available at the
stage of the bail proceedings which may well afford an explanation
for the contradiction. I am however, prepared to accept that the
reference was to the Orange Farm house because the Johannesburg
house
fits in with the rest of her evidence at the bail hearing as well as
the cell phone records concerning her movements on that
evening. But,
is does not end there: the assumption that she actually referred to
her Johannesburg house, does not remedy the contradiction.
Her
version now, as I have alluded to, was that she was at Maponya Mall
or, if her evidence in cross-examination is accepted, at
a filling
station on the Old Potch Road, neither of which was referred to in
her evidence at the bail hearing. It must be accepted
that she was
acutely aware of being implicated in the incident when informed
thereof by her husband during the cell phone conversation
I have
referred to, which according to the MTN cell phone records, must have
been sometime after 23h00, while on her way to Lichtenburg.
Notwithstanding her knowledge and the events that led to her arrest
later that week, she, with transparent falseness, testified
in
cross-examination that she only, on the day before being
cross-examined on this aspect, turned her mind to the issue exactly
where she had been at the time of the incident.
[28] The accused moreover experienced
considerable difficulty in reconciling the times and distances which
she had stated in her
earlier evidence with remarkable exactitude.
These times, notably concerned the crucial time of the occurrence of
the incident.
A few examples of the contradictions will suffice: In
cross-examination when the times and distances were debated with her,
she
said that she had met her friends at Maponya Mall at 21h00 and
“definitely not” at 20h00 as she had earlier testified.
Further in cross-examination she testified that she had left Orange
Farm at 20h00 that evening and not 19h00 as originally testified.
She
eventually hatched onto the difficulty to estimate times and
distances which is inconceivable in the face of the exactitude
in
giving times in her evidence in chief. To this she added that she had
only the day before really given thought to exactly where
she was at
the time of the incident. I formed the impression that the accused,
on this aspect, improvised as she went along.
[29] The reasons proffered by the
accused for her sojourn to Johannesburg on the Monday evening, in my
view, are improbable. She
had ample time to return to Northwest on
the Tuesday but instead stayed on. Then, she attended a social
gathering with friends
at Maponya Mall, when it was already late in
the evening. She then only, after having been reminded thereof by her
mother, at 21h30
returned home in Lichtenburg with two young children
who were to attend school the very next day. Her reasons for not
calling in
help and assistance from family members in Lichtenburg,
where she has grown up, of whom there were many, to care for the
children
while she was away in Johannesburg, were transparently
fabricated.
[30] A second apparent unsatisfactory
aspect arising from the accused’s evidence is this: she
testified that on the day of
the incident she was wearing a long
curly hair piece or weave which reached down to her buttocks. Her
evidence on this aspect is
contradicted by the statement put by her
counsel to Lerato. Lerato, in response to a question put to her in
cross-examination by
counsel for the accused, concerning the
accused’s hairstyle on the day of the incident, explained that
her hairstyle was
short, and demonstrating approximately shoulder
length. In response thereto, counsel put to her the accused’s
version which
was that she did not have long hair. The implication of
that statement leaves one in no doubt: accused 1’s hair was
shorter
as indicated by Lerato. The accused’s explanation for
the apparent contradiction was that women ordinarily would never
refer
to a hairpiece/weave as “hair”. But,
disingenuousness aside, it remains that it was not put to Lerato that
the accused
was wearing a hairpiece/weave.
[31] Reverting to the accused’s
version concerning the events since having met Tshepiso and the
Sekoati’s until the
last contact between them in early January
2010., she confirmed that Tshepiso, at all times, in attempting to
get into contact
with Ndumiso, raised her concerns about the welfare
or sickness of her child, L. The accused was adamant that she had no
problem
with L and that she would never have interfered. The first
meeting between her and the Sekoati’s, as I have alluded to,
except
for minor insignificant differences, was not disputed. One
area of dispute concerned the accused’s allegations that the
Sekoati’s
insisted on certain rituals that had to be performed
on L, which were not mentioned by the Sekoati’s. I do not think
that
the dispute is of any real significance. Of crucial relevance
and importance, however, is the bag incident, which I now turn to
deal with.
[32] The accused, in her evidence,
vehemently denied having been at the Sekoati house or having dropped
the bag there, as testified
by the state witnesses. She however,
admitted that she was with her in-laws when the Sekoati’s
arrived there with the bag,
later that evening. She said a blouse was
taken out and she was accused of having been at Mapetla in a white
car. Her mother-in-law
asked for more details concerning the
discovery of the bag and spoke on her behalf, alleging that the
accused could not have done
it as she had been with them at the time
(19h00). The accused rejected the allegations concerning the threats
she is alleged to
have made although she admitted that a heated
argument developed during which she threatened to hit Tshepiso.
[33] The dropping of the bag at
Mapetla allows for one single inference only: the motive behind it
was to convey some kind of sinister
message to Tshepiso. The
Sekoati’s were unable to ascribe any particular meaning to it.
The accused likewise professed ignorance
as to the motive for doing
that. I am unable on the facts before me to find what the true motive
was. The question, however, is
whether the Sekoati’s should be
believed for implicating the accused as the person who had done so.
In my view the answer
is in the affirmative. I am unable to accept,
on the probabilities, that the Sekoati’s would have gone
through all the trouble,
at night, to go to Ndumiso’s parental
home, with the bag, only to falsely implicate the accused for having
dropped the bag
at their house. It was suggested by the accused and
this was echoed in counsel’s argument, that the Sekoati’s
must
have had some kind of a grudge against the accused which would
explain why false allegations were made against her. The contention
fails for a lack of factual foundation. Assuming they had a grudge to
falsely implicate the accused, the place and time they selected
to
deal with it, simply make no sense. Nor is it possible to find the
reason for them acting in this way: they were blissfully
unaware of
the possible motive for the accused’s conduct. The notion of a
grudge further, in my view, can best be discarded
as illusory if
regard is had to the fact that it is common cause that the contact
between the two sides came to an end after this
incident. The accused
on the other hand, had ample reason for denying her conduct: an
admission thereof might well have required
an explanation which in
turn might have exposed her true motive towards Tshepiso. For these
reasons I do not hesitate for a single
moment to reject the accused’s
denial as false.
[34] The accused presented as a
sophisticated, intelligent and articulate woman. She testified in
fluent, impeccable English. Her
evidence however, was unconvincing,
contradictory and improbable in material respects. I accordingly
reject her alibi as being
not reasonably possibly true and
accordingly false.
[35] This brings me
to the identification of the accused at Mapetla on the night of the
incident.
The dangers generally attendant upon identification
are self-evident (see
S v Tandwa and others
2008 (1) SACR 613
(SCA) para [129]-[131]). The identification that was made forms part
of the evidential matter upon which the case must be decided
(see
Matwa v S
[2002] 3 ALL SA 715
(E) 721
f
)
.
I
have given careful consideration to the lighting in and around the
house, which the witnesses testified was good as there was
a light
near the front door of the house, an Apollo light nearby as well as
lighting from surrounding houses, the relative short
time available
to the witnesses to observe the accused, the distance she was away
from them and, of course, the horrific experience
they were exposed
to of the house burning down and their lives being in danger. I
accept, as counsel for the accused emphasised,
that the bedroom in
which the witnesses were, was probably filled with smoke. That
however, in my view, did not, as counsel submitted,
negatively
affected their ability of observation: the windows were immediately
opened and the burglar bars broken for them to get
out, which they
succeeded in doing. It is only when the windows were opened and the
curtains drawn that Lerato observed the accused.
Having jumped out of
the window she mentioned this to Sophy who confirmed that she had
also seen the accused. The accused, as I
have mentioned, was known to
them. Although the accused was walking away from them, towards the
gate, Lerato testified that she
did see her face. Sophy, on the other
hand, testified that she had not seen her face but immediately
recognised her as the accused.
It is important to bear in mind that
the accused when she was seen, was removing the balaclava. That of
course directed the attention
to her as she had been seen in the
house shortly before. Facial identification, in these circumstances,
where the person is well-known
to the identifying witness, is of
secondary importance. Other factors such as general physical
appearance, gender, gait, and clothing
should also be considered. An
identification of a person on these aspects without specifically
looking at his or her face can be
just as reliable as a facial
identification. The possibility of a mistaken identification, on the
facts of this matter, does not
arise. Even if it does arise, I am
satisfied that there was no mistaken identification of the accused.
But, the enquiry does not
end there.
[36] The
identification of the accused must further be considered, not in
isolation, but in the context of the totality of the facts
of this
matter.
In
S
v Liebenberg
2005 (2) SACR
355
(SCA) the Supreme Court of Appeal held:
‘[15]
Where a defence of an alibi has been raised and the trial court
accepts the evidence in support thereof as being possibly
true, it
follows that the trial court should find that there is a reasonable
possibility that the prosecution’s evidence
is mistaken or
false. There cannot be a reasonable possibility that the two versions
are both correct. This is consistent with
the approach to alibi
evidence laid down by this Court more than 50 years ago in
R
v Biya
1952
(4) SA 514
(A). At 521C-D Greenberg JA said:
‘
If
there is evidence of an accused person’s presence at a place
and at a time which makes it impossible for him to have committed
the
crime charged, then if on all the evidence there is a reasonable
possibility that this alibi evidence is true it means that
there is
the same possibility that he has not committed the crime’.’
(
see also
S v Trainor
2003 (1) SACR 35
(SCA) para [8]–[9];
Crossberg v S
[2008] ZASCA 13
;
[2008] 3 ALL SA 329
(SCA) para [121]).
[37] An aspect that was dealt with
extensively in the evidence and in argument is the possibility of the
state witnesses bearing
a grudge against the accused and therefore
falsely implicating her. It is at the outset necessary to state that
there is no onus
on the accused to explain the reason why the state
witnesses are implicating her. But this aspect was not only dealt
with as I
have mentioned, it also deserves consideration as the facts
of this matter require careful consideration to find an acceptable
explanation for the bizarre conduct of the assailants. As for a
possible grudge I have after careful consideration of all the
evidence
come to the conclusion that none existed. Nor was the
accused or counsel for the defence, able to point to any
possible
grudge. In this regard the evidence and more in particular the
conduct of Tshepiso during the period from September 2009, is of
decisive importance. Tshepiso impressed me as an honest and objective
witness. Counsel for the accused was unable to point to any
unsatisfactory aspects in her evidence. As Tshepiso was at pains to
emphasise, she was at all times furthering the interests of
her
child, L, in her attempts to contact Ndumiso and wanting to hold him
accountable. Instead she came head on with the accused.
In the three
months that followed the relationship between the two women was
anything but amicable. And this is where the conduct
of Tshepiso
shows its true worth: she never at any stage, as is also borne out by
the accused’s version, acted unreasonably
or aggressive or
hostile towards the accused. She constantly sought Ndumiso’s
assistance and involvement. As against this
the same cannot be said
of the accused. The accused appeared to have harboured a suspicion
that Tshepiso was still involved in
a relationship with her husband,
who has not testified. This undeniably resulted in immense jealousy.
As much appears from the
various remarks she had made during this
period as well as the threats, some of which, significantly, involved
L. The accused,
as I have alluded to, admitted having uttered at
least one threat which was to hit Tshepiso during the bag incident
argument. I
am unable to find that the evidence of the state
witnesses concerning the threats and general conduct of the accused
was either
imaginary or false. When considered on the facts as a
whole, their evidence accords with the probabilities and in fact
sensibly
and logically piece together in making up the completed
mosaic of events.
[38] A number of inferences, in my
view, can and should be drawn from the totality of the facts: the
attack was carefully pre-planned,
the two male assailants were
strangers to the Sekoati household, they must have been contracted by
a third person to execute a
carefully planned attack, and the
architect of the attack was a woman, who, at a critical stage during
the attack, made an unannounced
appearance in the house, with a
balaclava to hide her identity, undoubtedly to satisfy herself that
the attack went according to
plan.
[39] This brings to the fore a
crucially important aspect of this case which is the possible motive
which can be attributed to the
female intruder. The presence of the
female intruder was alluded to in the evidence of Lerato, Sophy and
Teboho. Teboho added that
that the female intruder attempted to drag
him into the bedroom which he was able to resist. He stood at the
doorway to the kitchen
when a match was struck by one of the male
assailants and thrown into the second bedroom where M and the
children were. The female
intruder ran away followed by one of the
assailants. Lerato and Sophy testified that M, after she and the
children had carefully
been separated from the others and ushered
into the second bedroom by the assailants, probably by then realising
what was to happen
to them, asked that the children be released. The
request was obviously directed at the two male assailants. Both
Lerato and Sophy
testified that they had heard the request. Teboho
was being assaulted by one of the attackers at that stage and he, not
surprisingly,
did not hear “any conversation”. It was
only Lerato who witnessed her signalling a “no”. The
refusal by
the accused happens to be in keeping with her earlier
threat towards L, who had always during that period re-appeared as
the connecting
factor between Tshepiso and her husband, as well as
the unequivocal intention of the male assailants to ensure that the
children
were in one of the bedrooms and then setting that particular
room alight. Based on these considerations I have come to the
conclusion
that the accused pre-planned the attack for which she had
obtained the assistance of the two male assailants driven by the
motive
to kill L and possibly others.
[40] Counsel for
the accused referred to a number of contradictions between the state
witnesses. One thereof is Lerato’s evidence
that petrol was
poured on her head as opposed to her later evidence that petrol was
poured on the back of her head running down
her spine, while she was
bending down. The difference, if any, is semantic and needs no
further consideration. Another, concerns
who exactly was present in
the first bedroom, during the incident. This is of little relevance
as it is not disputed that 11 people
were in the house. Finally,
reference was made to Lerato’s evidence that Tshepiso had
admitted at one of the meetings that
she was still in a relationship
with Ndumiso, which Tshepiso denied having said. I am inclined to
believe Tshepiso when she said
that she, in any event, did not
discuss her private affairs with Lerato. Be that as it may, it is
clear from the totality of the
evidence that there was no longer any
kind of love relationship between the two. It is
important to
consider the nature of the contradictions and effect thereof on the
evidence as a whole (
S v van Aswegen
2001 (2) SACR 97
(SCA);
S
v Radebe
1991 (2) SACR 166
(T)
167j-168h,
S v Mafaladiso
2003 (1) SACR 583
(SCA) 593-594)
.
The
differences relied on are all minor in nature and show nothing more
than what is to be expected from observations made from
different
vantage points by different persons in different situations. The
fact
that there are discrepancies between the versions put forward by
various witnesses does not mean that the evidence of such
witnesses
should be rejected
in
toto
.
The
court is obliged to consider any factors which might account for such
discrepancies. The factors to be taken into account would
include the
circumstances in which the various eyewitnesses viewed the events to
which they testified and the opportunities they
had to observe such
events, the rapidity with which such events took place, and any other
factors which may account for differences
in their testimony.
I
am mindful of the finding I have made concerning the unsatisfactory
portion of Lerato’s evidence: it does of course not
necessarily
follow that her evidence as a whole must therefore be rejected (see
S
v Oosthuizen
1982 (3) SA 571
(T)
577A-B). Her evidence concerning the identification of the accused as
well as the other events, in any event, is materially
corroborated by
other state witnesses.
[41] Counsel for the defence sought to
criticise the state for not calling all the available witnesses on
the witness list. He submitted
that the failure justifies a negative
inference against the state. There is no merit in the contention. At
the closure of the state’s
case counsel for the state made all
other witnesses available to the defence. None of the remaining
witnesses were called by the
defence. It is not for the state to call
witnesses in order to provide the defence with possible ammunition in
its quest to fish
for possible contradictions. I am satisfied that
counsel for the state has properly and objectively exercised his
discretion in
calling all necessary witnesses and that no negative
inference is called for.
[42] In conclusion, it is my finding
that on the totality of the evidence, the state has succeeded in
proving beyond reasonable
doubt that the accused acted in accordance
with a pre-meditated plan and therefore with
dolus directus
and
that she
is guilty on all 12 counts.
[43] In the result accused 1 is found
guilty on counts 1 to 12, as charged.
___________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR THE STATE
:
ADV P NEL
COUNSEL
FOR ACCUSED 1: ADV R MUFAMADI
COUNSEL
FOR ACCUSED 2: ADV (MS) M MZAMANE
DATE
OF JUDGMENT: 17 MAY 2013