About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2013
>>
[2013] ZAGPJHC 176
|
|
S v Tekana (SS266/06) [2013] ZAGPJHC 176 (23 July 2013)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(
WITWATERSRAND LOCAL
DIVISION)
JOHANNESBURG
CASE NO
: SS266/06
DATE
: 2007-03-22
DATE:2013-07-23
In the matter between
THE STATE
and
JOHANNES MOLAHLWA JANTJIES
TEKANA
...........................................
Accused
J U D G M E N T
C. J. CLAASSEN, J
:
1] The accused is a 49 year old male of 8279 Tau Street, Unit F,
Thokoza. He has been arraigned on eight charges as follows:
Count 1: It is alleged that on the 2
nd
of January 2005 at
369 Kosovo, Pola Park in Tembisa in Germiston he unlawfully assaulted
Winnie Sekete by hitting her with fists,
kicking her and attempting
to stab her with a garden fork with the intention to cause her
grievous bodily harm.
Count 2: Assault. It is alleged by the state that at the same time
and place the accused unlawfully and intentionally assaulted
Lebohang
Sekete by kicking him.
Count 3: Assault with the intent to do grievous bodily harm. The
state alleges that on 26 November 2005 at 2 Britti Camp, Pola
Park,
Tembisa the accused unlawfully assaulted Winnie Sekete by pouring 25
litres of water on her and attempting to stab her with
a knife and
hitting her with fists with the intention of causing her grievous
bodily harm.
Count 4: Housebreaking with the intent to commit a crime unknown to
the State. In this charge it is alleged that on the 11
th
December 2005 at the same place as in count 3, the accused unlawfully
and intentionally broke into the shack of Winnie Sekete to
commit a
crime unknown to the state.
Count 5: Attempted murder. In this charge it is alleged that at the
same time and place the accused intentionally and unlawfully
attempted to kill Lentelus Kenneth Fritz.
Count 6: Arson. The state alleges that during the night of 11 and 12
December 2005 at the same place the accused unlawfully intended
to
injure Winnie Sekete in her property by setting fire and thereby
damaging the shack which was the property of Winnie Sekete.
Count 7: Murder. It is alleged that at the same time and place the
accused unlawfully and intentionally killed Lebohang Sekete.
Count 8: Murder. At the same time and place it is alleged that he
also intentionally killed Oupa Sekete.
2] The accused pleaded not guilty to all charges and was assisted in
his defence by Mr Hlazo. No plea explanation was forthcoming.
Mrs
Bayat appeared on behalf of the State. She handed in EXHIBIT A which
contained all the customary admissions in terms of
Section 220
of the
Criminal Procedure Act No. 51 of 1977
, regarding the identity of the
two deceased, the causes of death, the correctness of the two
post
mortem
reports and the correctness of certain photographs taken
at the scene of the crime referred to in counts 6, 7 and 8.
3] During the course of the trial the defence admitted the
correctness of three J88 medical reports concerning the injuries
sustained
by respectively Winnie Sekete on the 2
nd
January
2005, Lebohang Sekete on the 2
nd
January 2005 and Kenneth
Fritz on 11 December 2005. See EXHIBITS G, H and I.
4] The state led the evidence of eight witnesses i.e. Winnie Sekete
who was the complainant in counts 1, 3, 4 and 6, Kenneth Fritz
the
complainant in count 5, Jabulani Selele (also known as “Teacher”)
and Temba Nyoni who were neighbours of Winnie,
Margaret Sethswaga, a
sister of Winnie, Mbuzele Deonaze, Musa Radebe and Vusomutsi Mzimba.
The last three witnesses are all members
of the SAPS.
5] The defence called the accused and his sister, Agnes Tekana to
testify.
6] It is common cause that the accused and Winnie Sekete were lovers
and lived together in a shack owned by the accused situated
at 369
Kosovo, Pola Park. During 2005 they broke up. Winnie had two
children, Lebohang and Oupa. The accused is not the father
of these
children. A tuck shop was operated from the shack owned by the
accused in which they lived during 2004 and early 2005.
During June
2005 Winnie and the two children moved into a shack owned by her late
sister, Tandiwe situated near 2 Britti Camp,
Pola Park. Winnie’s
next door neighbour was Mr Kenneth Fritz. It is this shack which
burnt down killing Lebohang and Oupa
during the night of 11 and 12
December 2005. See EXHIBIT D, photographs 1, 2, 3 and 4.
7] It would be convenient to deal with this matter in accordance with
the counts as they appear on the charge sheet.
8] Counts 1 and 2: These counts relate to the events which allegedly
took place on the 2
nd
of January 2005. Winnie Sekete
testified that on the evening of 2 January 2005 she and the children
were watching television in
the shack at 369 Kosovo Park. The accused
arrived and ordered the television to be put off. Instead of doing
so, Winnie only turned
the volume down. The accused became enraged
and kicked the television and hit Winnie in the face causing her to
have a blue face
and some bleeding from her nose. Lebohang intervened
and tried to stop the accused from further assaulting his mother.
Accused
kicked him in the back. The accused then ordered both of them
out of the house. As they did so, he chased after them brandishing
a
garden fork. Winnie and Lebohang ran to the house of Winnie’s
sister, Pinkie Sethswaga where they found shelter.
9] Winnie then laid a charge of assault against the accused and
thereafter on the next day she was seen by a doctor. The doctor’s
report is EXHIBIT G. Paragraph 5 thereof confirms that she suffered a
bruised left eye, scratch marks on her neck and throat and
a tender
body. Lebohang was also seen by the doctor at the same time. This
doctor’s report is EXHIBIT H. The report confirms,
“no
obvious swelling nor wound but a tender chest, back”.
10] The accused’s version constituted an elaborate defence.
According to him Winnie was drunk that night and was brought
home by
two men and a woman at about 10:00 p.m. She did not want to remain at
home and wanted to go with these people. The accused
restrained her
from doing so by pulling her into the shack, but she resisted. He was
holding her by one of her arms. Winnie was
screaming and this
awakened the children. Both of them went to their mother. At a
certain point Winnie slipped out of the accused’s
grasp and
fell on her back on top of Lebohang. Winnie got up and pulled
Lebohang into the shack and the accused locked the door.
11] He stated that he did not notice any injuries on either of these
women.
12] Under cross-examination he was taxed with the recorded bruise to
Winnie’s left eye and scratches to her throat. He was
asked why
he did not notice these injuries despite seeing her face to face the
next day. He suddenly stated that she did have a
scar on her forehead
when she returned. The existence of such a scar was never put to
Winnie when she testified nor did the accused
testify in-chief to the
existence thereof.
13] In short the accused’s version of what transpired that
evening does not permit of an explanation how Winnie suffered
her
injuries as documented in EXHIBIT G. Nor was it put to Winnie that
she indeed did not leave the shack after the incident. I
accept that
she did leave the shack, but that raises the question why she left.
On accused’s version she was drunk and screaming
and objected
to him preventing her from leaving with the two men and the woman. On
his version for no apparent reason she suddenly
changed her mind and
calmly pulled Lebohang into the shack to enable the accused to close
and lock the door.
14] If the accused’s version were true there would have been no
reason for her to leave the shack again. The fact that she
did leave
with Lebohang (and it was never disputed that Lebohang also left) is
consistent only with Winnie’s version of the
events namely that
she fled together with Lebohang from the shack because of the
accused’s assault. Her version was corroborated
by her sister
who stated that they did arrive at her home. On this evidence I find
that the accused’s version of the incident
falls to be rejected
as false beyond a reasonable doubt.
15] Count 3: According to Winnie she remained with Pinkie, her sister
until March. Pinkie alleged that they stayed only approximately
two
weeks. According to them the accused visited Winnie at Pinkie’s
home uttering all kinds of insults and threats to kill
her. This
occurred on various occasions. After leaving Pinkie’s home,
Winnie moved around living at different places in Pola
Park in order
to avoid the accused. Eventually she moved into the shack which was
owned by another sister of her called Thandiwe
during June 2005.
16] On her version she never stayed with the accused again after the
incident in January 2005. She testified, however, that the
accused
persisted in hounding her with frequent visits demanding to sleep
with her. The events of the 26
th
of November 2005 were
such an occasion. He once more entered an appearance and demanded
sex. She resisted his advances. He poured
cold water over her and
stabbed her twice with a knife on her left shoulder at the back. She
ran outside and the accused continued
damaging the furniture inside
the shack. She called in the assistance of her neighbours.
17] Selele or “Teacher” confirmed that he was called that
night by Winnie to intervene. He said he saw the house in
shambles
with groceries strewn about. He also noticed blood on the front part
of Winnie’s clothing. Winnie, however, never
testified to this
fact. The witness, Selele approached the accused and asked him what
had happened. The accused did not answer
and instead wanted to attack
Selele.
18] Temba Nyoni also confirmed that some kind of altercation occurred
between Winnie and the accused. He testified that Winnie
in fact
asked him to look after her two children for the rest of the night.
19] The accused’s version is a total denial of this entire
episode. According to the accused he had been living with Winnie
in
the sister’s shack up to August 2005. His defence to this
charge constitutes a bare denial of the events. In my view his
bare
denial should be rejected as false beyond reasonable doubt.
20] Selele and Nyoni were two independent witnesses who impressed me
as totally trustworthy and credible. They knew the accused
and could
not have mistaken him for someone else. What is of importance is that
Mr Hlazo did not during his cross-examination of
Selele contend that
the incident never occurred, or that the accused was absent. I have
no reason to doubt the testimony that an
incident did indeed occur on
26 November 2005 at the shack where Winnie was living then.
21] The problem for the state, however, is the difficulty to
determine what exactly the nature of the fight between Winnie and
the
accused was. Initially Winnie testified that the accused stabbed her
once with a knife on her left shoulder blade. Later on
she described
the injury as a mere scratch. Under cross-examination her statement
made to the police was put to her wherein she
stated that the accused
tried or attempted to stab her. See paragraph 3 of EXHIBIT E1 and
paragraph 4 of EXHIBIT E2. In this statement
she also alleged that
they wrestled over the knife as a result whereof she sustained
injuries to her hand, but no mention was made
in the statement of any
stab wound to her left shoulder blade. Later in her evidence she
alleged that the accused stabbed her twice
on her shoulder. On this
charge I accept that an incident occurred, but the evidence does not
establish that the accused assaulted
Winnie with intent to do her
grievous bodily harm. Her evidence on this charge is just too
contradictory for a finding that the
accused assaulted her. Neither
Selele nor Nyoni were able to testify as to the nature of the
assault. They merely stated that they
were aware of the fact that a
fight had taken place.
22] I am further fortified in my conclusion that the state failed to
prove the nature of the fight by the evidence of Selele. He
stated
that Winnie and the accused often fought, but that the attack was not
always by the accused on Winnie. This would leave
the door open for a
possibility that Winnie might have attacked the accused. I am
therefore of the view that there exists doubt
as to who did what on
the occasion of the events of 26 November 2005. The accused must be
given the benefit and therefore
HE IS FOUND NOT GUILTY ON CHARGE
3
.
23] Counts 4 and 5, it is alleged in these charges that the accused
broke into Winnie’s house on the night of 11 December
2005 and
thereafter attempted to kill Kenneth Fritz by repeatedly stabbing him
on the back with a broken bottle. It was not in
dispute that Winnie
and Fritz were next door neighbours and that they became lovers
during the week preceding the events of the
11
th
and 12
th
of December 2005.
24] Winnie testified that she was in bed during the early hours of
Sunday morning at approximately 02:00 a.m. Prior to going to
bed she
had locked the door with a bolt on the inside. She heard glass
breaking. The next thing was that the kitchen door was opened
and the
accused walked in. She got out and ran out of the shack. The accused
then also left the shack. Later on she heard Fritz
saying that the
accused had stabbed him. She also heard the accused saying in
Afrikaans “
jy wil nie hoor nie, ek gaan jou
doodmaak, jou boesman
”. I hasten to add that Fritz is a
very light skin coloured person whose home language is Afrikaans. The
accused admitted
that he understood Afrikaans and that on occasion he
had seen Fritz at the police station, but he did not know his name.
Shortly
thereafter Winnie saw the accused in possession of a broken
bottle threatening to kill her as well. She screamed and ran to the
neighbours for help. She returned to the shack and saw that Fritz was
bleeding profusely on his back. The ambulance was summoned
and he was
transported to hospital. Fritz returned on Sunday afternoon with his
wounds all stitched up. His wounds were numerous
and very serious.
This much is confirmed in EXHIBIT I, paragraph 5 as well as the
sketch made by the doctor on page 4 thereof.
I was able to confirm
from my own observation in court that he does have extensive scars on
his back.
25] It has never been disputed that Fritz in fact sustained these
injuries on the night of the 11
th
to the 12
th
of December 2005. This is not therefore a case where the scars may
have been caused by someone else on a different occasion.
26] Sunday afternoon Fritz returned to the shack and ascertained that
all was well with Winnie and the children. That evening Winnie
put
her children to bed in her shack. After they were asleep she went to
Fritz’s shack next door to attend to his needs.
Ultimately she
fell asleep in his shack. She was awoken by a loud bang and lights
coming from outside. She got up and saw her shack
was in flames. She
saw neighbours trying to douse the flames without much success. She
became hysterical and shouted that her children
were in the burning
shack. The fire was eventually put out by the fire brigade, but by
that time it was too late to save her children.
It is common cause
that no-one saw the accused at the shack during the early hours of
Monday morning of 12 December when it was
burnt down.
27] Fritz in his testimony confirmed that he was in bed with Winnie
on the night of the 10
th
to the 11
th
of
December in her shack. He saw the accused entering the shack. Fritz
left the shack and went to his shack. He noticed that the
accused
gave chase. Fritz heard a bottle being broken behind him. Fritz
attempted to go to his shack where the accused stabbed
him on his
left arm and on his back with the broken bottle. Fritz then proceeded
to run away. The accused followed and stabbed
him in the back
repeatedly. The accused eventually discontinued the chase. Fritz
returned to his shack thinking the accused had
left. However, he saw
the accused coming from Winnie’s shack saying “
jy
boesman, jy wil nie hoor nie, ek gaan jou doodmaak”
. For
the second time Fritz fled hotly pursued by the accused during which
chase the accused again stabbed him on the back with
the broken
bottle. He succeeded escaping from the accused and followed a
different route back to his shack. On his return he saw
Selele and
Nyoni near Winnie’s shack. An ambulance was summoned and he was
taken to the Natalspruit Hospital.
28] Selele in his evidence confirmed that he was the person who
summoned the ambulance. Selele also testified as to the major
injuries and blood flowing from Fritz’s back. He asked Fritz
what happened and Fritz told him that he was injured by the accused.
29] At the hospital Fritz was treated and his wounds were stitched.
During the course of the afternoon he was discharged. In court
I was
also able to verify the extent of his injuries on his back. He was
suffering extreme pain when he returned from the hospital.
He
returned to his shack. During that evening Winnie came to him and
gave him painkillers to drink. They both fell asleep in his
shack.
Fritz awoke during the night when somebody shouted that Winnie’s
shack was in flames. Fritz also confirmed that the
fire brigade
eventually extinguished the fire.
30] The accused’s version of the events of the night of the
10
th
and the 11
th
and the night of the 11
th
and 12
th
of December constituted a total denial. He denied
that he was anywhere near Winnie’s shack on those two nights.
He could
not say where he was during the night of the 11
th
and the 12
th
of December other than to say that he was
asleep in his room at his sister’s place. In regard to the
night of the 10
th
to the 11
th
he stated that by
02:00 to 03:00 a.m. on the morning he would have been in bed because
it is sleeping time. He was, however, unable
to say at what time he
went to bed. Initially he said that he would have been asleep, but
later he said that he was definitely
asleep in his room at the time
of the incident.
31] In my view the evidence against the accused in regard to the
events of the night of the 10
th
to the 11
th
of
December is in fact overwhelming. It must be accepted that Fritz was
chased and injured by a man during the early hours of the
night of
the 10
th
to the 11
th
of December. The only
question is to decide who this man was. Winnie and Fritz stated that
it was the accused. Winnie may have
had a grudge against the accused
which may have caused her to want to falsely implicate the accused in
the events of this night.
However, Fritz would have had no such
reason to falsely implicate the accused. He was the new boy on the
block. He had had no previous
trouble of any kind with the accused.
It is also common cause that Fritz had ample opportunity to make a
good and reliable identification
of his assailant. There was ample
lighting and even the accused did not dispute that the visibility was
good. There is absolutely
no evidence pointing to another person as
being the assailant of Fritz other than the accused. If the evidence
of Winnie stood
alone as a single witness one may have had some
doubts, but in regard to this charge she is not a single witness and
she is fully
coroborated in all material respects by the evidence of
Fritz.
32] The alibi of the accused as to where he was on that particular
night is also extremely unconvincing. In these circumstances
I am of
the view that the state succeeded in proving beyond reasonable doubt
that the accused was in fact the person who broke
into Winnie’s
home and brutally assaulted Fritz. It can also not be gainsaid that
the attack with the broken bottle on two
different occasions that
night was done with the intent to kill Fritz. Except for one stab
wound on his left arm, all the other
stabbings were directed at chest
height where a person’s vital organs are situated. In my view
this proves beyond any reasonable
doubt that the accused intended to
kill Fritz.
33] Counts 6, 7 and 8, these counts deal with the intentional burning
of Winnie’s shack and the resultant deaths of Lebohang
and Oupa
who were sleeping in the hut. It is in my view trite law that the
intentional burning of a shack at an hour when people
are normally
asleep inside would normally result in a verdict of murder. At the
very least such intention would have been indirect
intention or
dolus
eventualis
. However, if the arsonist is proved to have been aware
that the shack was housing people at the time of setting it alight
then
of course it amounts to murder with
dolus directus
.
34] n defence to these charges the accused raised again an alibi that
he was asleep in his room at his sister’s home. The
testimonies
of the accused and his sister are, however, so contradictory that one
cannot accept it as truthful. I say this for
the reason that both the
accused and his sister were totally untrustworthy witnesses who made
a bad impression in the witness box.
The accused tended to give vague
and rambling answers to questions often quite beside the point. His
sister was obviously attempting
to bolster the accused’s alibi
defence to the point that she testified in regard to matters which
she could not have been
aware of.
35] Examples of their vague, contradictory, improbable and illogical
evidence are the following:
1. The testimony by Winnie that accused expressed various threats to
kill her both at the time she was living at her sister Pinkie’s
residence and in her sister Thandiwe’s residence was never
really rebutted by the accused. It must therefore be accepted
that he
had threatened to kill her. Burning down a shack where he may have
thought that she and the children were sleeping constitutes,
of
course, such an attempt at killing her. In my view the state
therefore abundantly established a motive on the part of the accused
to want to kill Winnie.
2. The accused admitted to having held a grudge against Winnie as she
had allegedly abused him in swearing at him and belittling
him. His
greatest grudge in this regard was that she told him “she could
not feel him whilst making love in bed”. These
aspersions on
his manhood eventually caused him to leave her. If his evidence is
true then, of course, it supplies another reason
for a motive to take
revenge against Winnie. With revenge in his heart the best way would
therefore have been to set alight the
shack in which Winnie and the
children were sleeping during the early hours of the morning.
3. It is common cause that the accused knew exactly in which hut
Winnie and the children slept. On his own version he stayed with
them
in that shack until August 2005. It is highly improbable that someone
else would coincidentally burn down the shack in which
the previous
night a break-in and attempted murder had been committed by the
accused. One may justifiably ask the rhetorical question
why burn
down that particular shack? Who else would have wanted to burn it
down? The probability in my view is overwhelming that
the accused who
had threatened the previous evening to kill both Fritz and Winnie
would have been the only person with the necessary
desire to do so.
4. The accused attempted to distance himself from Winnie’s
shack by saying that he left her in August and never saw her again
until he was arrested in December 2005. Winnie testified that he
persistently stalked her during that period demanding sex. In
this
regard there are three witnesses who support Winnie’s testimony
in contradiction to the accused’s version. Selele
and Nyoni,
two independent witnesses and Fritz testified that they saw him in
the vicinity of Winnie’s shack on several occasions
during that
period. In fact, the incident on the 26
th
of November is
such an occasion. On their version he was there on the 26
th
of November having a fight with Winnie. His denial that he was there
has already been rejected. It must therefore be accepted that
he did
in fact stalk her during this period. His persistent presence during
that period caused Selele and Nyoni to assume that
he was in fact
living with Winnie. This constitutes corroboration for Winnie’s
evidence that the accused stalked her right
up to the time of the
fateful events on the 11
th
and the 12
th
of
December. The only reasonable conclusion to be drawn from this is
that he did so with the intention to win her back and obtain
her
sexual services. The only reasonable inference to be drawn therefore
is that when she had left him he acted with the intention
of a
spurned lover i.e. to take revenge by killing her and her children.
5. The accused’s credibility was destroyed in regard to his
evidence that he handed himself over to the police during January
2005 and that Captain Radebe assisted him by taking him to court
where he realised for the first time that he had been arrested.
To
say the least this version is absurd. Radebe stated that he arrested
the accused on 7 January 2005. Most of the accused’s
fanciful
story in this regard was never put to Radebe in cross-examination.
Later on the accused contradicted himself in admitting
that 7 January
2005 was the date when Radebe came to his residence. If this was so
for what reason would Radebe have gone there
other than to arrest
him? The accused also admitted that his fingerprints, warning
statement and his constitutional rights were
all completed before he
went to the court. There would have been no reason to conduct any of
these activities prior to his arrest.
These activities were completed
because he had already been arrested by then.
6. He also lied in regard to his explanation that he had shown Winnie
the document issued to him in court reminding him of the
next hearing
date. Initially he said that she made no comment when he showed the
document to her. Later on he stated that she explained
that she will
not go to court because she was drunk when she laid the charges. She
did therefore not keep quiet on the second version
after the document
was shown to her.
7. The accused’s alibi relied upon an allegation that he was in
bed in his sister’s home the whole of the night of
11 to the
12
th
of December. As stated previously he was, however,
unable to state when he had gone to bed. He said that he went to bed
the usual
time, but he was unable to state what the usual time was.
His sister testified that he went to bed about 21:00 to 22:00 p.m.
Both
the accused and his sister testified that he took a beer to his
room when he went to sleep. If true that he did so at approximately
21:00 to 22:00 p.m. on Sunday night, then on the probabilities the
beer would no longer have been cold by 02:00 to 03:00 a.m. on
Monday
morning in summer time. At 02:00 to 03:00 in the morning on Monday
morning the investigating officer Mzimba arrested the
accused. Mzimba
specifically stated that the beer was still cold leading to the
incontrovertible conclusion that he had taken the
beer from the
fridge not at 21:00 to 22:00 p.m. the previous night, but some time
thereafter. If this was so then, of course, it
would have been quite
possible for him to have left the house during the night, burn down
the shack and return to his home before
02:00 to 03:00 a.m. on Monday
morning.
8. Confirmation for the above conclusion is also found in the
testimony of Mzimba. He found the accused fully dressed lying on
top
of the bed. The defence tried to rebut this evidence by alleging that
the accused had removed his trousers and slept with a
T-shirt and a
pair of shorts similar to pyjamas. If this were true one would have
expected some evidence by the accused or his
sister that he first
dressed himself before he was led away from the room by the police.
However, no such evidence was forthcoming
which tends to prove the
correctness of Mzimba’s testimony that he was still fully
dressed lying on top of the bed. The accused
also contradicted
himself in saying he had slept under the blankets, but in
cross-examination he changed that to saying he slept
under a bed
sheet. The state’s version of his arrest is therefore accepted
as having been proved beyond reasonable doubt.
9. The accused and his sister contradicted one another in regard to
the arrest. The accused stated that he was awakened by the
police
kicking him. His sister, however, testified that she was the one who
had awakened him. It was never put to Mzimba that the
sister was the
person who had awakened the accused. There was a further
contradiction between the accused and his sister regarding
the manner
in which he went to bed. According to the accused he got up from the
TV and went to the kitchen and took a beer whereafter
he went to his
room to sleep. His sister said he went straight to his room from the
TV carrying a beer bottle and a glass. Neither
the accused nor the
police testified about the existence of a glass in his room. The
sister was merely exaggerating her evidence
in an attempt to support
his alibi.
10. The accused’s sister made an extremely poor impression in
the witness box. It was quite obvious to me that she was exaggerating
her evidence to bolster her brother’s evidence in regard to the
issues in dispute. For example, initially she said that she
saw an
arresting policeman slapping the accused. When asked who this
policeman was she said that she could not remember him. Thereafter
she said that she only heard the slap. When she was asked if she was
sure she heard the slap, she said but she saw it. Her evidence
in
this regard was confused and contradictory. She also testified that
Winnie had a drinking problem. Winnie denied this and was
corroborated in this regard by the two independent witnesses Selele
and Nyoni who said that they never saw her drunk. They lived
in close
proximity to her and they would have been quite able to say what her
drinking habits were. The accused’s sister’s
evidence in
this regard is yet another example of her attempt to merely bolster
his version. The worst part of her evidence is
when she told the
court about the insults which Winnie allegedly made against the
accused. She also testified that Winnie allegedly
told the accused
that she could not feel him in bed. The accused, however,
categorically stated that he told no-one about these
intimate
details. In his view it was a private matter which he would not
discuss with anyone. The fact that his sister rather belatedly
came
up with this evidence confirms in my mind her attempt merely to
testify to bolster the accused’s case without having
regard to
the truth. The accused relied on her testimony to the effect that he
could not have left the house on that evening because
she would have
heard it. However, in the light of her very poor evidence it is very
difficult to believe her evidence that there
was no possibility of
the accused leaving her home at night without her hearing it.
36] My conclusion in the light of the aforesaid reasons is that the
state succeeded in disproving the truth of the accused’s
alibi
beyond a reasonable doubt. I am also strengthened in this conclusion
by the overwhelming evidence of the state on counts
4 and 5. The
events which occurred on the night of the 10
th
to the 11
th
of December are inextricably linked to the events occurring on the
night of the 11
th
and the 12
th
of December. It
is obvious that the accused acted revengefully on the night of the
10
th
to the 11
th
of December. It was the first
time he noticed or realised Winnie was sleeping with someone else. He
must therefore have realised
that his ability to woe her back has
come to an abrupt end. Once he appreciated that he had failed to kill
Fritz he came back the
next night to finish off the job.
37] It is interesting to note that Fritz’s shack was not burnt
down. The shack which was burnt down was the shack in which
he saw
Fritz and Winnie sleeping together the previous night. It would be
just too coincidental to consider that someone else would
have wanted
to burn down that shack for no apparent reason. It should also be
remembered that in this case there was no motive
such as robbery
which could have played a role in the burning of the shack. Whoever
burnt it down must have had the intention to
burn it down for
purposes of killing its occupants. Accidental or spontaneous
combustion also played no role in this case. I agree
with counsel for
the state that once the various feathers of circumstantial evidence
become so heavy like a loadstone around the
accused’s neck,
then it is not necessary for the state to disprove all other possible
reasons why the shack burnt down.
38] It is trite law that there is no duty on the state to exclude all
other possibilities. The court is enjoined to look at all
the
evidence and then come to a conclusion in a case of circumstantial
evidence whether the only reasonable possibility is the
one
indicating the accused’s guilt. In my view that is the correct
conclusion to come to in this matter. Taking into account
all the
evidence there is in my view only one reasonable possibility and that
is that the accused was the person who burnt down
the shack. I
conclude therefore that the only reasonable inference to be drawn
from the proven facts is that the accused was the
arsonist. He knew
that the two children slept in the shack and therefore had the
intention to kill them by setting the shack alight.
39] I make the following order:
a. Count 1: Assault with the intent to do grievous bodily harm. The
accused is found guilty as charged.
b. Count 2: Assault. The accused is found guilty as charged.
c. Count 3: Assault with intent to do grievous bodily harm. The
accused is found
not
guilty.
d. Count 4: Housebreaking with the intent to commit a crime unknown
to the State. The accused is found guilty as charged.
e. Count 5: Attempted murder. The accused is found guilty as charged.
f. Count 6: Arson. The accused is found guilty as charged.
g. Count 7: Murder. The accused is found guilty as charged.
h. Count 8: Murder. The accused is found guilty as charged.
DATED
THE 23
rd
DAY OF July 2013 AT JOHANNESBURG
_____________________
C. J. CLAASSEN
JUDGE OF THE
HIGH COURT
DATE OF JUDGMENT
: 2007-03-22
ON BEHALF OF THE STATE
: ADV BAYAT
ON BEHALF OF THE DEFENCE
: ADV S. HLAZO, INSTRUCTED BY THE
JOHANNESBURG JUSTICE CENTRE