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[2017] ZAGPJHC 24
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S v Lebatie (107/2016) [2017] ZAGPJHC 24 (23 February 2017)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
CASE NUMBER:107/2016
DPP REF: JPV80/2016
ENNERDALE 215/08/15
Not reportable
Not of interest to
other judges
Revised.
In the matter between:
THE STATE
and
CARLON
LEBATIE ACCUSED
JUDGMENT
WRIGHT J
THE CHARGES
1.
Mr
Carlon Lebatie is a man in his mid-thirties. He is charged with a
first count of murder, read with section 51(1) of Act 105 of
1997 in
that he murdered Ms Tia Dollie on or about 22 August 2015 at or near
a veld opposite [...] Dixon Street, Extension 9, Ennerdale,
Johannesburg. There is no reference to section 51(1)(a) rather than
simply to section 51(1). There is no allegation in the indictment
or
the summary of substantial facts that the murder was planned or
premeditated. Given the conclusion to which I come below, nothing
turns on the point.
2.
The
second count is robbery in that on or about 22 August 2015, at or
near Extension 9, Ennerdale he assaulted Aubrey Stigling and
took
from him by force a computer modem. Count 2 makes no mention of
aggravating circumstances nor is there mention of the
Criminal Law
Amendment Act 105 of 1997
. Count 2 replaced the original count 2
which had alleged the murder of a foetus. This replacement, which
happened shortly before
the trial started, was by agreement.
3.
Ms N
Naidoo appeared for the DPP. Mr S Hlazo appeared for Mr Lebatie. The
trial started on 8 February 2017. Mr Lebatie pleaded not
guilty to
both counts. He gave no plea explanation.
ADMISSIONS
4.
Mr
Lebatie made a number of admissions recorded by me as such under
section 220
of the
Criminal Procedure Act 51 of 1977
with the consent
of Mr Lebatie. These admissions are contained partly in exhibits A,
B1 –B9, C1 – C19 and D1 –
D14. In short, it was
admitted that Ms Tia Dollie is the deceased, she died on 23 August
2015 of strangulation sustained on or
about 23 August 2015 at or near
an open veld opposite Dixon Street, Extension 9, Ennerdale. It is not
here admitted that the body
was found in the veld opposite [...]
Dixon street rather than simply Dixon street. I shall deal later with
exhibit F in which the
admission is made that the body was found in
the veld opposite [...] Dixon street. The body of the deceased
sustained no further
injuries from the time wounds were inflicted on
23 August 2015 until the post-mortem examination was conducted. This
examination,
conducted by Dr Morule is correct. The autopsy and
related admissions are contained in exhibit B. Exhibit C refers to
two black
cables and “
1
used toilet paper
”
found
by the police in the veld on the scene where the body was found on
Sunday 23 August 2015 and contains photographs of the scene
where the
body was found. Exhibit D is a series of aerial photographs of the
veld in question and some housing. I labelled as exhibit
E a copy of
a typed opening address by Ms Naidoo. Exhibits F and G, containing
other admissions made under
section 220
are dealt with below.
THE EVIDENCE FOR THE
STATE AND FURTHER ADMISSIONS
5.
Ms
Roxanne Watson testified. She lives in 3
rd
Avenue,
Ennerdale. She knows Mr Lebatie. They were friends. At about 11:15am
on Saturday 22 August 2015 she was at home. Mr Lebatie
and Kevin Pitt
came to her house and the three of them smoked. Mr Lebatie was not
himself. He was clearly under stress. Ms Watson,
Mr Lebatie and Mr
Pitt smoked on and off until about 8pm that night when Mr Lebatie and
Mr Pitt left. At about midnight Mr Lebatie
phoned Ms Watson on her
cellphone from his cellphone. He asked Ms Watson if she had a pipe to
smoke. She said yes. Mr Lebatie and
Mr Pitt came back to Ms Watson’s
house shortly thereafter. She met them at the laundry window. Mr
Lebatie looked for matches
on the floor and then disappeared. Ms
Watson asked Mr Pitt where Mr Lebatie had gone. Mr Pitt replied that
Mr Lebatie had gone
to steal a car. Mr Pitt then left. Ms Watson then
went to her lounge window, looked out and saw Mr Lebatie pushing a
car down the
road. Mr Lebatie was then helped by Mr Pitt. The car was
stolen from the same complex where Mr Lebatie used to stay. The two
men
pushed the car past Ms Watson’s house. Not more than ten
minutes later Mr Pitt arrived back at Ms Watson’s house. He
was
in a state and asked to be let in saying that Mr Lebatie was looking
for him. Ms Watson’s mother let Mr Pitt in. He sat
on a mat and
said that he and Mr Lebatie had been “
blomming
”
,
that is Mr Pitt had been hanging out with Mr Lebatie and a pretty
girl. Mr Pitt said that he thinks that Mr Lebatie had raped
and
killed the girl. Ms Watson told Mr Pitt that he is lying, saying to
him “
you
bogus me
”
.
That topic was left there.
6.
On
Sunday, 23 August 2015 at about early evening Mr Lebatie phoned Ms
Watson and asked her to meet him at the nearby graveyard,
just one
street away. The reason why Mr Lebatie wanted to meet at the
graveyard was because he had stolen a car in Ms Watson’s
street
and he did not want to be seen on that street. Ms Watson met Mr
Lebatie and they went to a SPAR shop where he bought her
a cold drink
and a chocolate. They walked back along 1
st
Avenue.
Ms Watson asked Mr Lebatie what girl Mr Lebatie was with the previous
night. Mr Lebatie replied “
Tia”
.
Ms Watson asked “
Tia
from Extension 3 ?
”
Mr
Lebatie replied yes. Ms Watson said to Mr Lebatie that Mr Pitt had
said that Mr Lebatie had raped and killed this girl. Mr Lebatie
replied, using the following or similar words “
God
forbid. If something happens to Tia people will blame me
”
.
Ms Watson understood this to be a denial.
7.
Ms
Watson spoke to Mr Lebatie about three weeks after the weekend in
question. Mr Lebatie had been arrested for the murder of Ms
Tia
Dollie. He had not been arrested for or charged with the car theft or
any other crime. He was in prison and he phoned Ms Watson.
Ms Watson
asked Mr Lebatie if he did it. Mr Lebatie replied that he had and
that he does not know what was wrong with him. Both
Ms Watson and Mr
Lebatie knew and understood that they were speaking about the murder
of Ms Dollie. As Mr Lebatie answered
that he had done it Ms
Watson put her cellphone on speaker. Apart from Ms Watson, Mr
Lebatie’s answer was heard by Ms Watson’s
brother Brent
Watson, Brent Watson’s girlfriend Laverne Lomberg and Mr Pitt,
those persons being present with Ms Watson.
Ms Watson did not record
the conversation and her cellphone was subsequently stolen.
8.
On 22
December 2016 Mr Lebatie phoned Ms Watson on her sister in law’s
phone. He asked her if she was going to testify against
him. She said
no.
9.
Ms
Watson had known Ms Dollie as having been in the same school as Ms
Watson but in a grade higher than Ms Watson. Ms Watson did
not know
if Ms Dollie and Mr Lebatie knew each other or had any kind of
relationship.
10.
In
cross examination Ms Watson readily conceded that what she, Mr
Lebatie and Mr Pitt had been smoking on 22 August 2015 was mandrax
and crystal meth. She denied that these drugs had affected any of
them other than to make them “
jol
”
and to
make her feel “
hyper
”
.
Mr Lebatie was out of sorts on that day because of his wife having
had an affair with a policeman.
11.
Further
in cross examination Ms Watson said that when Mr Pitt had come to her
house ten minutes after he had helped Mr Lebatie push
the stolen car
Mr Pitt, looking scared, had said that he and Mr Lebatie had met the
girl at the SPAR shop and that they had gone
to smoke at 1
st
Avenue.
Mr Pitt said that he thought Mr Lebatie had raped and killed “
a
pretty girl from extension 3
”
.
12.
It was
put to Ms Watson that when Mr Lebatie phoned Ms Watson from prison
the conversation was about how they missed each other
and Ms Watson
had asked when Mr Lebatie was coming out of jail. The death of Ms
Dollie was not discussed. Ms Watson rejected these
allegations as
lies. Ms Watson said, in answer to a question by me that she had
never had a relationship with Mr Lebatie but they
had been friends.
13.
It was
put to Ms Watson that after Mr Lebatie got bail, she and others came
across Mr Lebatie and his son and she complimented the
son on his
getting bigger. Ms Watson denied meeting Mr Lebatie after his release
on bail. She said that she saw Mr Lebatie, after
his release, for the
first time, on the day she first testified, namely 8 February 2017.
Ms Watson said that she had been told
by her mother’s lodger,
Mr Gift Thomas a former street person that after Mr Lebatie had been
released on bail Mr Lebatie
had gone to the Watson house and smoked
with Mr Thomas. Ms Watson said that she was not there, she having
moved in with her boyfriend.
Ms Watson denied speaking to Mr Lebatie
after 22 December 2016.
14.
It was
put to Ms Watson that the reason why she and her crowd missed Mr
Lebatie was because he was their drug supplier. She described
this as
a lie. It was put to Ms Watson that Mr Lebatie could not think of a
reason why Ms Watson would lie in court.
15.
It was
put to Ms Watson that she was protecting Mr Pitt and substituting him
for Mr Lebatie. She denied this.
16.
During
re-examination Ms Watson said that when Mr Pitt was sitting on the
mat at the Watson house some ten minutes after she had
seen Mr
Lebatie and Mr Pitt pushing the stolen car Mr Pitt said that he had
seen Mr Lebatie making a fire in the veld at about
the same time that
Mr Pitt had heard a girl scream. The veld in question is in Extension
9, Ennerdale. This veld, that Mr Pitt
was referring to, was known as
the “
Shoprite
paadjie
”
.
Mr Pitt had told her that he had heard the scream and seen Mr Lebatie
making the fire just before he had arrived at the Watson
house some
ten minutes after he and Mr Lebatie had pushed the stolen car. Mr
Pitt had told her further that he, Mr Lebatie and
Ms Dollie had got
into a car driven by a man by the name of Toy. Ms Dollie had
said that she wanted to get out of the car.
Toy had said no and that
he would her drop her at home. Toy then made a U-turn and was pulled
over by the police. Mr Lebatie and
Ms Dollie got out and walked
towards the “
Shoprite
paadjie
”
.
Toy was then tested by the police using a breathalyser. Toy then
dropped Mr Pitt in Felix street. Mr Pitt followed Mr Lebatie
and Ms
Dollie. Mr Pitt heard a scream. A police officer arrived on the scene
and spoke to Mr Pitt, asking him what he was doing.
Mr Pitt said that
he went up a different “
paadjie
”
where
he saw Mr Lebatie stoking a fire. Mr Lebatie saw Mr Pitt and asked
him “
Kevin,
is dat jy ?”.
17.
This
evidence of Ms Watson, during re-examination is substantially more
detailed than her evidence in chief or in cross examination
on the
topic of what Mr Pitt had told Ms Watson at her house about ten
minutes after he and Mr Lebatie had been seen pushing the
stolen car.
18.
In
paragraph 8 of exhibit E, the opening address by Ms Naidoo, the
statement is made that Mr Pitt will testify that he “
witnessed
a scream and the fire
”
in the
veld where the deceased was found. The opening address was made and
exhibit E handed up before Ms Watson testified. The contents
of
paragraph 8 go some way towards suggesting that Ms Watson was not
fabricating when she provided more detail in re-examination
than in
chief or in cross-examination on what Mr Pitt had said to her on the
mat at her house particularly regarding Mr Pitt having
seen Mr
Lebatie making a fire in the veld.
19.
I
allowed Mr Hlazo to re-open cross-examination. Ms Watson said that
her detailed testimony, in re-examination as to what Mr Pitt
had told
her on the mat was more detailed than her earlier evidence on the
same topic simply because it had slipped her mind. Mr
Hlazo, who must
have been in possession of Ms Watson’s written statement to the
police did not seek to cross-examine Ms Watson
by way of alleging any
material discrepancy between her testimony in court and her written
statement. Both Ms Naidoo and Mr Hlazo
correctly conceded that Ms
Watson had not been asked by either counsel about Mr Pitt having said
anything about a fire.
20.
Mr
Hlazo put it to Ms Watson that Mr Lebatie, Mr Pitt, Ms Dollie and Ms
Watson were together on Saturday 22 August 2015 and smoking
drugs the
effect of which is to cause hallucination. Ms Watson denied the
alleged effect.
21.
Ms
Krystle Birkenstock testified. She had been a friend of Ms Dollie. Ms
Birkenstock was also a friend of Mr Lebatie. They had been
friends
for about 5 years. On Saturday 22 August 2015 Ms Birkenstock was at
home in 1
st
Avenue,
Ennerdale with her boyfriend, Grant. Also present were two other
friends, Malcolm and Wayne. Ms Dollie came to visit in
the late
afternoon. She was looking for a man named Bejorn. She wanted Bejorn
to fix two blackberry cellphones. Bejorn was not
there. Ms Dollie
waited and then left after about two or three hours. It was dark when
she left. About two hours thereafter she
arrived back with Mr Lebatie
and Mr Pitt. They had walked to Ms Birkenstock’s house. Ms
Dollie then left for a second time
at about 22h10. A few seconds
later Mr Lebatie left. A few seconds after that Mr Pitt left. None of
the three came back. Malcolm
and Wayne had left when Mr Lebatie, Ms
Dollie and Mr Pitt had arrived.
22.
Prior
to Ms Dollie, Mr Lebatie and Mr Pitt leaving at about 22h10 Mr
Lebatie and Ms Dollie were speaking quietly together but Ms
Birkenstock could not hear what was said. Suddenly Mr Lebatie burst
out in anger at Ms Dollie because she, according to Mr Lebatie
owed
him a “
lolly
”
,
that is a pipe for smoking drugs. Mr Lebatie demanded from Ms Dollie
anything she might have on her in lieu of the pipe. Ms Dollie
did not
respond. She tried to leave by going outside and asking a man named
Denzel, who had a car, if she could get a lift with
him. Denzel did
not give Ms Dollie a lift. Ms Birkenstock knows this because Denzel
came into the house and told her.
23.
Ms
Dollie and Mr Lebatie had been close friends who would hang out
together on a daily basis and smoke. About two months before
Ms
Dollie died Ms Dollie, Ms Birkenstock and a third woman, Simone
Apollis bumped into Mr Lebatie at an Engen garage. Mr Lebatie
asked
Ms Dollie about his pipe. He threatened Ms Dollie saying “
Jy
gaan sien
”
and “
Ek
gaan jou steek
”
.
What Mr Lebatie meant is that he would stab Ms Dollie with a knife.
The three women walked away. The friendship between Ms Dollie
and Mr
Lebatie soured thereafter.
24.
On 22
August 2015 Ms Dollie told Ms Birkenstock that she was three months
pregnant. Because Ms Dollie was somewhat chubby Ms Dollie
was not
visibly pregnant. Ms Birkenstock did not know if Mr Lebatie knew if
Ms Dollie was pregnant.
25.
Ms
Birkenstock said that smoking crystal meth made her energetic. It
made Mr Lebatie aggressive if he was in a fight or argument.
She and
Mr Lebatie often smoked together.
26.
Ms
Birkenstock said that after Mr Lebatie was arrested he contacted her
on Facebook saying that he was in jail for murdering Ms
Dollie. He
asked Ms Birkenstock if she thought he did it. She said no. A few
days before Ms Birkenstock testified Mr Lebatie contacted
Ms
Birkenstock via Facebook again and asked her the same question and
got the same answer. Between these two Facebook communications
the
two had no contact.
27.
Ms
Birkenstock explained in cross-examination that the Engen garage
incident had two components. The three women met Mr Lebatie
at the
Engen garage. When he threatened Ms Dollie saying “
Jy
gaan sien
”
and “
Ek
gaan jou steek
”
he was
not armed. The three women went into the Engen garage shop and Mr
Lebatie walked in the direction of his house which is across
the
road. When the three women came out of the shop Mr Lebatie was back
and in possession of a small knife. He then threatened
Ms Dollie. Ms
Birkenstock told him not to. Ms Birkenstock explained that she had
forgotten, when she first testified on the topic,
the second part of
the incident in which Mr Lebatie produced a knife. In answer to a
question by me as to what Mr Lebatie had said
during the different
parts of the incident Ms Birkenstock said that, in the first part,
when Mr Lebatie had no weapon, Mr Lebatie
had said to Ms Dollie “
Jy
gaan sien
”
and “
Ek
gaan jou steek
”
.
During the second part of the incident Mr Lebatie, then brandishing a
knife, threatened Ms Dollie saying, twice “
Jy
gaan sien
”
.
28.
It was
put to Ms Birkenstock that there was no lolly pipe incident between
Mr Lebatie and Ms Dollie. It was further put that there
was no such
encounter at an Engen garage.
29.
Ms
Birkenstock testified that on numerous occasions, when Ms Dollie and
Ms Birkenstock were at Ms Birkenstock’s house during
that time
between the Engen garage incident and 22 August 2015, Ms Dollie, in
the absence of Mr Lebatie, told Ms Birkenstock that
Mr Lebatie was
continually on at Ms Dollie about the pipe.
30.
It was
put to Ms Birkenstock that Mr Lebatie denied ever threatening Ms
Dollie. Ms Birkenstock replied that she, Ms Dollie and the
third
woman at the Engen garage, that is Simone Apollis were present and
witnessed the threats.
31.
It was
put further that Mr Lebatie would deny having produced a knife.
32.
It was
put further that the relationship between Mr Lebatie and Ms Dollie
had always been good.
33.
It was
put further that there was no outburst or anger by Mr Lebatie towards
Ms Dollie at Ms Birkenstock’s house on the evening
of Saturday
22 August 2015.
34.
It was
put to Ms Birkenstock that the fact that Ms Dollie left with Mr
Lebatie in the late evening of 22 August 1915 showed that
there was
no problem between the two. Ms Birkenstock replied that she could see
that Ms Dollie was unhappy. In fact, Ms Dollie
had delayed departing
for about ten minutes after Mr Lebatie said they should go. Ms
Birkenstock said that Ms Dollie, as soon as
she walked out of the
house, had tried to get a lift with Denzel.
35.
It was
put to Ms Birkenstock that Mr Lebatie would say that on the evening
of Saturday 22 August 2015 he and Mr Pitt met Ms Dollie
at the SPAR
shop. She asked Mr Lebatie if she could go with them because she
wanted to smoke and had nothing with her. Ms Birkenstock
said she was
unable to comment on this allegation as she was not there.
36.
It was
put further that Mr Lebatie would say that a lolly pipe cost only R50
and he could have bought one easily. Ms Birkenstock
replied by asking
why Mr Lebatie kept harassing Ms Dollie about the pipe.
37.
It was
put further that Mr Lebatie would say that Ms Dollie never owed him a
pipe. Ms Birkenstock replied by referring to Mr Lebatie’s
demands for the pipe.
38.
In
answer to a question by Mr Hlazo as to whether or not Mr
Lebatie and Ms Dollie had come together to Ms Birkenstock’s
house prior to 22 August 2015 Ms Birkenstock said yes, they had come
to smoke but she could not remember when.
39.
It was
put further that Mr Lebatie would testify that before 22 August 2015
he and Ms Dollie used to hang out together and smoke
without any
problem between them. Ms Birkenstock queried this by saying that Ms
Dollie had disappeared for some time and then re-appeared
on 22
August 2015. Ms Birkenstock knew that Ms Dollie was staying with her
boyfriend, Leno in Extension 3. Ms Birkenstock knew
this as her
friend, Simone had told her so. Ms Birkenstock did not know the
address.
40.
It was
put further that Mr Lebatie would say that Ms Dollie, up to 22 August
2015, was living with a man called Manas in Extension
5. Ms
Birkenstock replied that Ms Dollie and Manas used to go out together
but that they had broken up long before the Engen garage
incident.
41.
Ms
Birkenstock stated that she did not know if Mr Lebatie knew the
whereabouts of Ms Dollie in the period leading up to 22 August
2015.
42.
It was
put to Ms Birkenstock that Mr Lebatie would say that all his lady
friends, including Ms Birkenstock and Ms Dollie referred
to him as a
protector as he always made sure that no harm came to his lady
friends. It was further put that he had no reason to
harm Ms Dollie.
43.
Mr
Stigling testified. He knew Ms Dollie, Mr Lebatie and Mr Pitt. On 22
August 2015 Mr Stigling, in the early evening, approached
Ms Dollie,
Mr Lebatie and Mr Pitt opposite the SPAR shop. Mr Stigling asked Ms
Dollie to come with him. She did not answer. As
Mr Stigling turned to
go Mr Lebatie grabbed him and grabbed Mr Stigling’s computer
modem out of his hand. Mr Lebatie said
that Mr Stigling owed him. Mr
Lebatie is younger, bigger and stronger than Mr Stigling. There was
nothing Mr Stigling could do
but walk away saying “
you
will see
”
.
Mr Stigling contradicted himself by saying that that is all Mr
Stigling said but then saying that he also said to Mr Lebatie that
he
did not owe Mr Lebatie anything.
44.
It was
put to Mr Stigling in cross-examination that Mr Lebatie, prior to
taking the modem, said to Mr Stigling that the latter owed
him money
for drugs and kept promising to pay. It was put further that Mr
Lebatie would say that he would take the modem and keep
it until he
got paid. It was specifically put that Mr Lebatie got Mr Stigling’s
tacit permission to keep the modem after
the modem had been taken.
45.
In
cross-examination, Mr Stigling said that the time of the incident was
about 7pm or 8pm when it was starting to get dark.
46.
Mr
Jerome Morgan testified. He started off his testimony apparently
confused as to whether or not he knew Mr Lebatie or had seen
him
before the day of testimony, 10 February 2017. Mr Morgan said
that he was at a shop one night when he was approached
by Kevin, Tia
and Carlon.
47.
It was
common cause in the trial that these persons are Mr Pitt, Ms Dollie
and Mr Lebatie, respectively. Mr Morgan referred to Kevin,
Tia and
Carlon throughout his evidence. It was not suggested to him in
cross-examination that these persons were other than Mr
Pitt, Ms
Dollie and Mr Lebatie. Mr Morgan, when asked who Carlon is described
and pointed to Mr Lebatie sitting in the dock. In
my view, Mr
Morgan’s apparent confusion in the beginning of his evidence as
to whether he knew Mr Lebatie is irrelevant.
48.
Mr
Morgan testified that at the shop Mr Morgan was approached by Mr
Pitt, Ms Dollie and Mr Lebatie. Mr Lebatie said that he desperately
needed money. Mr Morgan said that there was money at a place called
Lawley. Mr Lebatie said let’s go. Mr Pitt, Ms Dollie
and Mr
Lebatie got into Mr Morgan’s car. He drove along Katz street in
Extension 9, Ennerdale until he was stopped by the
Metro Police. Mr
Morgan marked this spot at X on the photo on D14, that is about one
house along Katz street from its corner with
Samuel street as one
moves from Samuel street to Dixon street. Mr Lebatie and Ms Dollie
got out of the car and walked together
up Katz street in the same
direction as Mr Morgan had been driving. By this time it was dark.
After speaking to the Metro Police
for about twenty to twenty-five
minutes Mr Morgan, with his only passenger Mr Pitt, did a U-turn in
Katz street and then immediately
turned left into Samuel street. Mr
Morgan then dropped Mr Pitt off in Felix Street.
49.
Mr
Morgan was clear that he dropped off Mr Pitt so that the latter could
meet Ms Dollie and Mr Lebatie at Shoprite Checkers. This
shop was
marked as C by Mr Morgan on the photo on D14 at the top middle of the
photo if this rectangular photo is held with its
length going
sideways. It is across a veld from the point Y where Mr Morgan
dropped off Mr Pitt. Point Y is on the right extreme
of the photo. I
estimate the distance from point Y to point C, across open veld at
about 200 – 300 metres.
50.
Mr Pitt
testified. He knows Mr Lebatie and had done so for about a year. He
knows him through Ms Watson. At about 11am on the morning
of 22
August 2015 he went to Ms Watson’s house. Ms Watson, Brent
Watson, Laverne Lomberg, Gift Thomas, Mr Lebatie and Mr
Pitt smoked
together on and off the whole day. Mr Lebatie kept leaving and coming
back with more drugs. Mr Lebatie was sad. At
about 8pm Ms Watson’s
mother said that Mr Pitt had to go. Mr Pitt and Mr Lebatie left. At
the nearby SPAR shop they came
across Ms Dollie. That was the first
time Mr Pitt had seen Ms Dollie. Mr Lebatie asked her to come with
them. She did not want
to. Mr Lebatie insisted, and asked her for his
pipe. The three walked on.
51.
They
came across Aubrey, that is Mr Stigling. Mr Lebatie forcefully took
Mr Stigling’s modem. Mr Stigling said to Ms Dollie
words to the
effect of “
see
what Carlon is doing
”
.
Ms Dollie kept quiet. Mr Lebatie said to Mr Stigling that this was
for the money that Mr Stigling owed Mr Lebatie for drugs. Mr
Stigling
said that he did not owe Mr Lebatie anything. Mr Pitt, Ms Dollie and
Mr Lebatie walked on to G’s house. (It
appears to be
common cause that this is the house that Krystle Birkenstock shares
with her boyfriend, Grant.)
52.
At this
house were Krystle Birkenstock, her boyfriend Grant, Simone and two
other persons not known to Mr Pitt. Ms Dollie went to
the toilet.
When she came back she, Ms Birkenstock, Mr Pitt and Mr Lebatie
smoked. Mr Lebatie asked Ms Dollie for his pipe. She
suggested they
go to her house to fetch it. After a while Ms Dollie smoked a
cigarette at the door and then stood outside. Mr Lebatie
went outside
and stood with her. Mr Pitt, Ms Dollie and Mr Lebatie then left
together and walked off. Ms Dollie was not happy to
go with them. She
kept slowing down and lagging behind. Mr Lebatie said to Mr Pitt that
she always smokes his drugs and that that
night Mr Lebatie was going
to “
dalla
”
her. Mr
Pitt said that this word means to have forceful sex. Mr Pitt
kept quiet.
53.
Mr
Lebatie had a number of stolen cellphones on him. He wanted to sell
them. The three walked on until they got to the Engen garage.
At
the Engen garage Mr Pitt saw Jerome Morgan. Mr Morgan is known as
Toy. Mr Lebatie told Mr Pitt to ask Mr Morgan if he
wanted to buy a
cellphone. Mr Morgan expressed an interest but said that he did not
have money on him. Mr Morgan suggested that
he take Mr Pitt, Mr
Lebatie and Ms Dollie to Mr Morgan’s house to get money and
that he would bring them back. The
three got into Mr Morgan’s
car. At a T-junction Ms Dollie said she wanted to go home. Mr
Morgan said that he would
drop her at home. Mr Morgan made a rough
U-turn and was then pulled over by Metro Police. The police
gave Mr Morgan a breathalyser
test. When Mr Morgan had stopped his
car Ms Dollie got out of the car. Mr Lebatie then got out of the car.
Mr Lebatie and Ms Dollie
walked off together. Mr Morgan spent about
five minutes with the police.
54.
Mr
Morgan gave Mr Pitt a lift. They drove past Eden’s Tavern. This
tavern is in Samuel street. Shortly thereafter Mr Pitt
asked Mr
Morgan to drop him off. He did this because he wanted to catch up
with Ms Dollie and Mr Lebatie particularly because Mr
Lebatie had
said that he was going to “
dalla
”
the
deceased. Mr Pitt knew that if he was present Mr Lebatie would not
harm the deceased. Mr Morgan dropped off Mr Pitt and drove
away. Mr
Pitt walked until he heard a woman’s faint scream. He walked
towards the scream. At that point a different Metro
Police car pulled
up outside the house of its driver, a different Metro Police officer
to those who had stopped Mr Morgan earlier.
Mr Pitt told the officer
that he was waiting for his girlfriend. Mr Pitt then walked on. It
was after midnight. He walked
along a path in the veld. He saw
a fire being lit by Mr Lebatie. At least it was Mr Lebatie’s
figure. He saw Mr Lebatie putting
grass on the fire. Mr Lebatie then
walked along a path. Mr Pitt walked along his path. Their paths
converged. Mr Lebatie, sounding
surprised said “
Pitt
is that you?”
Mr
Pitt said yes. Mr Pitt had kept his eye on the person making the
fire, namely the person he spoke to when their paths converged.
The
person was Mr Lebatie. Mr Pitt asked Mr Lebatie where the girl was.
Mr Lebatie said that he had left her at Eden’s. Mr
Lebatie then
phoned Watson from one of his cellphones. Mr Pitt heard the
conversation. Mr Lebatie asked Ms Watson if she
had a mandrax pipe.
She said yes. The two men went to Ms Watson’s house where they
met her at the laundry window. Mr
Lebatie then left. She went
to the lounge window. Mr Lebatie came back and asked Mr Pitt to help
him steal a car. They went to
Mr Pitt’s cousin’s house
where they found a car. One of the car’s windows was already
broken. They pushed the
car away. A short while later Mr Pitt ran to
Ms Watson’s house and told her that Mr Lebatie was stealing a
car. He told her
that he thought Mr Lebatie had raped, murdered and
burnt a girl in Extension 9. He told her that he had seen Mr Lebatie
lighting
a fire and adding grass to it. She did not believe him
saying that he was “
bogus
”
,
meaning high on drugs.
55.
Mr Pitt
spent the night at Ms Watson’s house. Late the next morning Mr
Lebatie phoned her. At one point she gave the phone
to Mr Pitt. Mr
Lebatie told Mr Pitt to keep his mouth shut or he would be hurt. Both
Mr Lebatie and Mr Pitt knew what Mr Lebatie
was referring to. This
was Mr Pitt having seen Mr Lebatie lighting the fire. Mr Pitt ended
the call. Mr Pitt did not see Mr Lebatie
again until the Monday after
the weekend in question when he identified Mr Lebatie at the police
station.
56.
Mr Pitt
marked photographs admitted as part of the exhibits. Mr Morgan had
stopped his car in Katz street at point X on the photo
on D14. I
estimate the distance from point X to the corner of Katz and Samuel
streets at about 10 – 15 metres. Point X is
about 70 – 80
metres from the corner of Katz street and Dixon street. Point X is on
Katz street between Samuel and Dixon
streets. I estimate the length
of Katz street, between Samuel and Dixon streets at about 90 metres.
57.
I make
the following observation. If one proceeds along Katz street, from
the bottom right of the photo on D14 to the top left of
the photo, as
the rectangular photo is held with its length sideways, as Mr Morgan
testified he had been driving before being stopped
by the Metro
Police, and one proceeds passed Samuel street which begins as a
T-junction and going right from Katz street, one reaches,
a suburban
block later, Dixon street which begins as a T-junction going right
from Katz street, that is parallel to Samuel street.
As one proceeds
along Katz street from its intersection with Samuel street to the
intersection of Katz street and Dixon street
there is veld on the
left. As one proceeds passed Dixon street there is veld to the left
and to the right. As was later to emerge
in the trial Metro Police
officer Mathonsi lives at [...] Dixon street. This house is the 5
th
house,
on the right hand side of the road as one proceeds along Dixon road
having turned right into Dixon road from Katz street
as depicted in
the photo on D2. Officer Mathonsi’s house was marked as A2 by
Mr Pitt on the photo on D2. Exhibit G, paragraph
13, contains the
common cause fact, recorded as an admission under
section 220
that
this is the house of officer Mathonsi at [...] Dixon street. I
note that the distance from A2 to point B, the place
where Mr Pitt
said he saw Mr Lebatie lighting a fire at about 15 – 20 metres.
58.
Mr Pitt
marked as E on the photo on D6 the location of Eden’s tavern.
It is about six houses along Samuel street from its
corner with Katz
street. The distance from this corner to point E is, on my estimate
about 40 metres.
59.
In
cross-examination it was put to Mr Pitt that Mr Lebatie had sat in
the back of Mr Morgan’s car with Ms Dollie and that
Mr Pitt was
in the front. It was further put that Mr Lebatie and Ms Dollie had
got out of Mr Morgan’s car on different sides.
Mr Pitt replied
that Mr Lebatie had sat in front, that is on the left side of Mr
Morgan and Ms Dollie had sat behind Mr Lebatie.
They both exited the
car on its left side.
60.
It was
further put that as Mr Lebatie and Ms Dollie walked away Ms Dollie
suggested that they go to Eden’s Tavern. Mr Lebatie
told Ms
Dollie that he did not want to go there as he did not drink alcohol.
The two then parted company. Mr Lebatie did not see
Ms Dollie again.
61.
In
cross-examination Mr Pitt conceded that even though Mr Lebatie had
told him that he was going to “
dalla
”
Ms
Dollie and that Mr Pitt had just heard a woman scream he did not tell
the Metro Police officer, who stopped his car, about the
scream. This
was because Mr Pitt was on drugs even though he did not have drugs on
him. He did not want to arouse the suspicions
of the officer.
62.
Mr Pitt
said in cross-examination that there were trees in the immediate
vicinity of the place where Mr Lebatie had made the fire.
He said
these trees were short trees. He said that he did not know when
the aerial photographs in exhibit D were taken. (I
observe that in
these photos, on D2 and D14 there appear to be no trees in the
immediate vicinity of the place where Mr Pitt says
Mr Lebatie made a
fire.) Mr Pitt said that there is grass about knee height at the
place where Mr Lebatie made the fire.
63.
When
challenged in cross-examination about the lack of light Mr Pitt said
that the crystal meth he had been smoking “
wakes
you up
”
and
improved his vision. In answer to a question from me he said that he
would have seen Mr Lebatie making the fire irrespective
of whether
he, that is Mr Pitt, had been smoking crystal meth or not. Mr Pitt
said that the flames lit up Mr Lebatie.
64.
In
cross-examination Mr Pitt conceded not having told the following
persons that he feared for Ms Dollie after Mr Lebatie had told
Mr
Pitt that he was going to “
dalla
”
Ms
Dollie:
64.1
The
Metro police who had stopped Mr Morgan - Mr Pitt said that he had not
told these police of his fear for Ms Dollie because he
had not
thought about it.
64.2
The
Metro Police officer who stopped his car at his house and asked Mr
Pitt what he was doing - Mr Pitt told the officer that he
was waiting
for his girlfriend. Mr Pitt said that because he was on drugs he did
not want this fact to become known to the police
officer.
64.3
Mr
Morgan and Ms Dollie – Mr Pitt said that he could not have told
Mr Morgan or Ms Dollie because Mr Lebatie was present and
would have
overheard. Mr Pitt was scared of Mr Lebatie who is bigger than him.
(This answer does not account for the time when
Mr Pitt and Mr Morgan
were alone in Mr Morgan’s car before Mr Morgan dropped off Mr
Pitt.)
65.
Mr Pitt
did not mention his suspicion that Mr Lebatie had murdered Ms Dollie
to Ms Watson when he and Mr Lebatie met her at the
laundry window of
her house. He did so, according to him, about ten minutes later, that
is after the car theft incident.
66.
It was
put to Mr Pitt in cross-examination that the drugs he had smoked on
the night in question had caused him to hallucinate.
Mr Pitt denied
this, saying that God had spoken through him, in particular when Mr
Pitt asked Mr Morgan to drop him off.
67.
Mr Pitt
stated that after he met Mr Lebatie when their paths converged and Mr
Lebatie told Mr Pitt that Mr Lebatie had left Ms Dollie
at Eden’s
he, Mr Pitt did not go to Eden’s to check. He said that this
was because he did not think of it.
68.
It was
put to Mr Pitt that Mr Lebatie did indeed come accross Mr Pitt when
their paths crossed. Mr Lebatie had taken a different
path to the one
indicated by Mr Pitt. Mr Lebatie took his path, rather than the path
Mr Pitt said he took because the latter path
was too dangerous
because of robbers. Mr Lebatie said to Mr Pitt that Ms Dollie had
told Mr Lebatie that she was going to Eden’s.
It was put by Mr
Hlazo to Mr Pitt that Mr Lebatie’s route, to the place in the
veld where he would come across Mr Pitt was
to have walked along Katz
street, with open veld to his right after intersection of Katz and
Dixon streets. At a point marked L1
the photo on D2 by Mr Hlazo, Mr
Lebatie veered right into the veld. In the veld, about 20 metres
later is a rubbish dump to the
right of the path Mr Lebatie was
taking. Mr Lebatie walked passed this dump to the point where he
encountered Mr Pitt.
69.
Exhibit
G is a list of admissions to the effect that Mr Pitt met Mr Mathonsi,
a Metro Police officer outside the latter’s
house at [...]
Dixon street, Ennerdale Extension 9. Mr Pitt told Mr Mathonsi that he
was waiting for his girlfriend. Mr Pitt then
walked back in the
direction from which he had come “
from
towards A1
”
.
Mr Mathonsi watched Mr Pitt walk away. The time of this common cause
encounter is not stated in exhibit G.
70.
Exhibit
F is a suspect’s warning statement made by Mr Lebatie to the
police on 28 August 2015.
71.
Mr
Kapito was the next person called by Ms Naidoo. He is from Malawi. He
seemed initially not to understand the oath as put to him.
I
explained the nature of the oath to him in English and he appeared to
understand. Ms Naidoo, Mr Hlazo and Mr Lebatie expressly
confirmed
that they were happy for Mr Kapito to testify in English. Mr
Kapito testified in English in a manner sufficiently
fluent for me to
conclude that he understood both the nature of the oath and what he
was asked and the answers he gave during his
testimony.
72.
As at
22 and 23 August 2015 Mr Kapito was employed at Eden’s. There
had been a name change of Eden’s to Teeza’s
at one stage.
(It appears to be common cause that nothing turns on the name
change.) Mr Kapito worked as a manager, as a waitron
serving
customers, as a bouncer and as a person who searched patrons entering
Eden’s. He had known Ms Dollie for about six
or seven years as
a person who had frequented Eden’s between about once and three
times a week until about seven or eight
months before the night in
question. At that point Ms Dollie stopped frequenting Eden’s.
73.
On the
night in question Mr Kapito was on duty at the main gate of Eden’s,
searching persons who entered the tavern. He was
on this duty from
about 7:30pm to about 2:00am. From the lighting he could clearly see
those persons entering the tavern. There
was no other entrance
through which patrons could enter the tavern. While he was on duty at
the gate between 7:30pm and about 2:00am
Ms Dollie did not enter the
tavern. (Mr Kapito’s evidence is, at best for the state,
relevant only if I accept Mr Pitt’s
evidence that Mr Lebatie
had told him that he had left Ms Dollie in Eden’s rather than
at Eden’s.)
74.
Mr Leno
Rudd testified. Ms Dollie had been his girlfriend and had lived with
him, at his house in Extension 3, Ennerdale for about
a year prior to
her death. She was about to move out to go and live with her sister
at the time of her death. This was because
she was about three or
four months pregnant by Mr Rudd. Mr Rudd did not know a man by the
name of Manas, as had been put by Mr
Hlazo to Ms Birkenstock as the
man with whom Ms Dollie had lived prior to her death. Mr Rudd was not
cross-examined.
75.
Constable
Mulaudzi testified that he has been a police officer for seven years
and was stationed in Ennerdale at the time in question.
He saw the
deceased’s body on the morning of Sunday 23 August 2015. This
was in a veld in Extension 9, Ennerdale. It had
burn marks on the
right thigh and upper torso. Next to her body was a Chesa Nyama take
away food container that looked like it
had been used to start the
fire. He also found a black electrical cord and a tissue paper. He
identified the place where he found
the body as the place which had
been marked B by Mr Pitt on the photo on D2 as the place where the
latter had seen the fire. (As
I stated above, point B is about 15 -
20 metres from point A2 which is the point where Mr Pitt and officer
Mathonsi had come across
each other.)
76.
He said
that if one stood at point A1 on exhibit D2 (that is the place where
Mr Pitt said he was standing when he heard a woman
scream) one could
see across the veld to the place of the fire at point B. Constable
Mulaudzi said that any bushes between A1 and
B were not more than
knee height. I estimate the distance from A1 to A3 at about 15
metres. Constable Mulaudzi estimated the distance
from A3 (where Mr
Pitt said he had stood on his path at a particular point and seen the
fire and Mr Lebatie or his figure at the
fire) to point B at about 6
metres. This estimate is obviously way too short. The distance is far
greater. Constable Mulaudzi was
more comfortable estimating distances
in footsteps. He estimated the distance, from point A3 to point B at
about 75 paces. This
estimate is a lot closer to the actual distance.
In court Constable Mulaudzi estimated the length of a metre
with reference
to the stenographer’s table. He estimated its
length at about 1 metre. Counsel and I estimated the length of the
table at
about 3 metres.
77.
I
marked on exhibit D2 with a J a spot on Katz street along the route
which Mr Hlazo had suggested to Mr Pitt in cross-examination
that Mr
Lebatie had taken, while walking along Katz street before Mr Lebatie
veered right into the veld at the spot marked L1.
Point J is about
the closest point on Mr Lebatie’s route, on Katz street, as
suggested by Mr Hlazo, to point B. Constable
Mulaudzi estimated the
distance between point J and point B at about fifty paces. He was not
cross-examined on this point and I
estimate fifty paces to be about
accurate. Constable Mulaudzi gave unchallenged testimony that a
person standing at point J would
see a fire at point B at night.
78.
Constable
Mulaudzi said that Katz road, that is the tar road running from the
right middle of D2 to the middle bottom of D2, as
D2 is held with its
length going sideways, is well lit by street lights. He said the
street lights are on the side of Katz road
closer to point B. The
street lighting continues all the way along Katz street.
79.
Constable
Mulaudzi said that a person standing at point X on D14, that is where
Mr Morgan had been stopped by the Metro Police,
and who wanted to go
from there to extension 3, at night, walking, would have to go along
Katz road, with the veld and point B
to his right, all the way passed
the police station and then onwards towards Extension 3. The import
of this evidence is that such
a person would not cut across a veld,
particularly near point B. This evidence was not challenged.
80.
Dr
Morule conducted the post-mortem examination. The cause of death was
strangulation by a rope or cord like ligature. The ligature
could
have been the thin black cable seen in photo 27 in exhibit C19. The
burns on the body occurred post-mortem. No dust or soot
was found in
the victim’s nostrils, trachea or on the tongue as would have
been the case had the burns occurred before death.
Dr Morule pointed
to photograph 8 on C9 and photograph 9 on C10. Clear islands of flesh
that had not been burnt appeared in a larger
area of burnt flesh.
This was another indication that the burning was post-mortem.
81.
In
answer to a question by me Dr Morule said that he thought that the
body had been burnt and then placed where it had been found.
He based
his evidence on the fact that the area of burnt ground was less than
the area of burning on the body. At the end of the
post-mortem
report, at B9 under the heading “
Additional
Observations
”
appear
the words “
The
burns cover +- 35cm of the total body surface and appear
post-
mortem.”
This cannot literally be correct. Either the “
35cm
”
means
35 square centimetres or 35%. From the photographs of the body
particularly photo 8 on C9, photos 9 and 10 on C10, photos
11 and 12
on C11 and photos 13 and 14 on C12 it is obvious that the burns cover
far more than 35 square centimetres. I can accept
that the burns
cover 35% of body surface area.
82.
Dr
Morule also said that it was possible that the body could have been
burnt where it was found.
83.
Dr
Morule said that he had no comment when I told him that Constable
Mulaudzi had testified that the latter had found a Chesa Nyama
container at the body which he thought had been used to start the
fire. I pointed Dr Morule to photo 25 on C18. This photo shows
what
could be a take-away food container, apparently black with a red and
white chequered pattern. Dr Morule said he could not
comment.
Constable Mulaudzi was not asked if this container was the container
referred to by him in his evidence.
84.
The
photos of the body on the scene, particularly photo 8 on C9, photos 9
and 10 on C10, photos 11 and 12 on C11 and photos 13 and
14 on C12
show a significant concentration of burnt grass under and
around the body.
85.
In
photo 8 on C9 immediately to the right of the body, as one looks at
the photo one can see the food container that appears more
clearly in
photo 25 on C18. This container appears also in photographs 10 on
C10, 11 on C11, 12 on C11 and 13 on C12. The
container is not
in the same position in photo 25 on C 18. It is obvious that
the container was moved during the photographing
of the body.
86.
Towards
the end of the post-mortem report, on B9 is the heading “
Exhibits
”
.
Under the heading is the word “
Description
”
.
To the right of this word are the words “
Disposal
Of Speciman
”
.
Under these words appear the words “
Card
Box Paper With Cell NO 074 341 9143 with the name Bjorn.”
Ms
Birkenstock had testified that Ms Dollie had come to visit Ms
Birkenstock in the late afternoon of 22 August 2015. Ms Dollie
was
looking for a man who could fix cellphones. Ms Birkenstock pronounced
the name of this man as “
Bejorn
”
with
the j pronounced as an English y. The Scandinavian name Bjorn
is pronounced more or less the same way. This may be an
indication
that Ms Dollie, dead or alive at the time, was close to the Bjorn
referred to in the post-mortem report. Either the
Bjorn referred to
in the post-mortem report is the Bejorn referred to by Ms Birkenstock
or he is not. Either way, I make nothing
of the coincidence in name.
If it is the same person then this may be confirmation of the fact
that Ms Dollie and Bejorn had something
to do with each other on the
day in question. However, the name Bjorn, written on the “
Card
Box Paper
”
with a
cell number does not necessarily tie Bjorn to the crime, either as
perpetrator, co-perpetrator or as a person with knowledge
of the
relevant events.
87.
Dr
Morule confirmed in cross-examination, that as appeared from his
post-mortem report at B9 under the heading “
Specimens
Retained
”
,
that he had caused scalp, hair, nail, vulval, vaginal and cervical
specimens to be sent for analysis.
88.
Ms
Naidoo and Mr Hlazo agreed that it was common cause that no results
had been obtained from the specimens which implicated Mr
Lebatie. Mr
Hlazo confirmed that this agreement could be recorded as an admission
by Mr Lebatie under
section 220.
Ms Naidoo did not say whether or not
there were results which pointed to any other person.
89.
Ms
Dollie’s body was found partly naked. Her jeans had been pulled
down to her right ankle. They had been pulled off her left
leg and
foot completely. She is not wearing panties. These admitted facts
appear from photos 8 on C9, 9 and 10 on C10, 11 and 12
on C11 and 13
and 14 on C12.
90.
Constable
Mulaudzi did not specify at what time of the morning he found the
body. On B5 (iii) Dr Morule certified that death occurred
“
as
informed, on 2015/08/23 AT 09H30.
”
What is
admitted here is not that the death occurred at 9:30am but that
somebody told this to Dr Morule. On B2 the admitted statement
is made
by forensic officer Ndou that he received the body on 23 August 2015
at “
11h35
”
.
91.
Ms
Naidoo closed her case and Mr Hlazo called Mr Lebatie. He testified
fluently in English.
THE DEFENCE CASE
92.
Mr
Lebatie spent the day of 22 August 2015, from about 11:00am, in the
company of Mr Pitt at Ms Watson’s house. Ms Watson
was present
and the three of them smoked mandrax and crystal meth in the garage
on and off until about 7pm or 7:30pm. During the
day Mr Lebatie and
Mr Pitt left the Watson house on a number of occasions to buy more
crystal meth. There were other people present
at the Watson house
during the day but they were in the main house rather than in the
garage.
93.
Crystal
meth causes, among other things, hallucinations particularly in the
form of hearing and seeing things that are not real.
Mandrax can
cause a loss of awareness of where one is, poor vision and fainting
for a few seconds. A person gets high whether he
or she smokes one
bag of crystal meth or twenty bags. Mr Lebatie did not hallucinate on
22 August 2015.
94.
Mr
Lebatie and Mr Pitt left the Watson residence in 3
rd
Avenue
mid-Ennerdale at about 7pm to 8pm. They walked to G’s house in
1
st
Avenue.
This is two streets away from 3
rd
Avenue
but there is a main road in-between. Mr Lebatie does not know the
name of the main road. On the way to G’s house Mr
Lebatie and
Mr Pitt decided to buy another bag of crystal meth at the SPAR shop
on 1
st
Avenue.
As they got near to the SPAR shop Mr Lebatie heard his name “
Carlon
”
being
called. He looked around and it was Ms Dollie who had called him. She
asked if she could join the two men in looking for a
pipe. The
three of them went to G’s house, particularly because Mr
Lebatie did not have a pipe as he had left his at
the Watson house.
G’s house was a place which Mr Lebatie knew would have a pipe.
95.
At G’s
house Ms Birkenstock gave Mr Lebatie a pipe. He loaded it. Ms Dollie,
Mr Lebatie, Mr Pitt, Ms Birkenstock, Grant and
then Mr Lebatie again
smoked the pipe and in that order.
96.
Mr
Lebatie went to the toilet and then into a different room and stole a
cellphone which he assumed belonged to Wayne. Mr Lebatie
then went
back to where Ms Dollie and Mr Pitt were and said that they should
go. Mr Lebatie went out of the house followed by Ms
Dollie and then
Mr Pitt. Mr Lebatie said that he wanted to sell the stolen phone. Mr
Pitt suggested they look for a buyer at the
Engen garage. The three
persons walked to the Engen garage which is in 1
st
Avenue
mid-Ennerdale.
97.
On the
way to the Engen garage they came across Mr Stigling. Mr Lebatie
asked him for the money Mr Stigling owed him for drugs.
Mr Stigling
replied that he was looking for a person who could buy his modem. Mr
Stigling said he wanted R150 for the modem. Mr
Lebatie told Mr
Stigling that the latter owed him R400. Mr Lebatie suggested that he
take the modem and that then Mr Stigling would
owe him only R250. Mr
Stigling complained that he had no money to buy drugs. Mr Stigling
asked Mr Lebatie for at least R50 and
then Mr Lebatie could take the
modem. Mr Lebatie said words to the effect of “
Give
me the modem. We’ll make a plan.”
Mr
Stigling said words to the effect of “
Okay,
take it, I will see you again
.”
Then Mr Lebatie took the modem and gave it to Mr Pitt. That was the
last Mr Lebatie saw of the modem. This incident occurred
at about
9:30pm to 10pm.
98.
Mr
Lebatie then bought two cigarettes at a “
Nice
and Cheap
”
24 hour
shop opposite the Engen garage. He gave one to Ms Dollie. A car
pulled up. Mr Pitt approached the car and spoke to the driver.
Mr
Pitt called Mr Lebatie and introduced him to the driver of the car,
Mr Pitt referring to the driver as Toy. Mr Lebatie and Toy,
that is
Mr Morgan agreed that Mr Morgan would buy the cellphone stolen by Mr
Lebatie from G’s house for R300. Mr Morgan had
said that he did
not have money on him but that he would take them to Mr Morgan’s
place in Lawley where Mr Morgan’s
money was. Ms Dollie sat
behind Mr Morgan, that is on the right hand side of the car. Mr Pitt
sat in front and to the left of Mr
Morgan. Mr Lebatie sat in the back
behind Mr Pitt. The car was driven along Katz street. At a T-junction
Mr Morgan stopped the
car at the stop sign. Ms Dollie got out and
then Mr Lebatie also got out. Mr Lebatie told Mr Pitt that if he
comes back from Mr
Morgan then Mr Pitt could find Mr Lebatie and Ms
Dollie at G’s place in 1
st
Avenue.
They walked together along Katz street back in the direction from
which the car had come. Very shortly thereafter Mr Morgan
made a
U-turn with his only passenger, Mr Pitt in the car. At that moment Mr
Lebatie became aware of a Metro Police vehicle. Mr
Morgan was stopped
by the police.
99.
Mr
Lebatie and Ms Dollie carried on walking along Katz street. Ms Dollie
wanted to go to Eden’s tavern. Mr Lebatie did not
want to go to
Eden’s as Eden’s was a drinking spot and he did not drink
alcohol. He kept walking, trying to get Ms
Dollie away from Eden’s.
She insisted on going to Eden’s. About six houses along Katz
street after its corner with
Samuel street Ms Dollie insisted that
she wanted to go to Eden’s. Mr Lebatie said she could go. She
said they would meet
up the next day. They gave each other a hug. Mr
Lebatie watched Ms Dollie walk back to the corner of Samuel street.
Once she got
there he knew she would be safe because Eden’s is
only a few houses up Samuel street. Many people were hanging around
outside
Eden’s.
100.
After
leaving Mr Morgan’s car the two had walked along Katz street.
To their left were bushes. To the right were houses. Mr
Lebatie
marked the photo on D2 with the letters TD, the spot where he and Ms
Dollie split up. Point TD is about five houses along
Katz street
between Samuel street and Dixon street. They had walked back in the
direction from which Mr Morgan had driven his car
along Katz street.
101.
Mr
Lebatie and Ms Dollie had parted ways between about 11:30pm to
midnight. Mr Lebatie carried on walking along Katz street. He
was
walking away from Samuel street. At the corner of Katz and Dixon
streets he saw that it was pitch dark in the veld ahead and
to the
right. He carried on walking along Katz street. He intended to walk
along Katz street because it was lit. As he got to the
point marked
L1 on a photo at D2, that is a point roughly 40 to 50 metres passed
Dixon street he decided to take a path into the
veld. This gave him a
short cut. That part of the veld was lit by the lights of a nearby
clinic. As he turned into the veld there
was, immediately to his
right a rubbish dump, marked L3 on the photo at D2. Because that area
is frequented by robbers he looked
for a weapon in the rubbish dump.
He found a piece of tar. He picked it up and walked on. He came
across Mr Pitt a bit later on
at the point marked P3 on the photo on
D14. They greeted each other. Mr Pitt asked where the girl was. Mr
Lebatie replied he had
left her as she had said that she was going to
Eden’s.
102.
Mr
Lebatie wanted to smoke the remaining half tablet he still had on
him. He phoned Ms Watson to ask if she had a pipe. This was
at about
12:30am to 12:45am. He and Mr Pitt went to Ms Watson’s house
and met her at the laundry window. It had taken the
two men about 20
– 25 minutes to walk from where they had met in the veld to the
Watson house.
103.
Mr
Lebatie denied that Ms Dollie ever owed him a pipe. He denied any
outburst at G’s house towards Ms Dollie.
104.
Mr
Lebatie said that Ms Dollie had sold him drugs from a house belonging
to Manas which house is behind that of the house in which
Mr Lebatie
had stayed sometime earlier.
105.
Mr
Lebatie denied ever threatening Ms Dollie at all. He denied any
threat or knife incident at the Engen garage. He often met his
friends, for example Ms Birkenstock and Simone Apollis at the Engen
garage which was across the road from where he lived.
106.
Mr
Lebatie denied saying to Mr Pitt that he was going to “
dalla
”
Ms
Dollie. He said that there had never been a problem between him and
Ms Dollie.
107.
Mr
Lebatie admitted phoning Ms Watson from prison but denied that she
had asked him if he had done it. The death of Ms Dollie was
not
discussed.
108.
Mr
Lebatie said that Mr Pitt was hallucinating in his claim that he saw
Mr Lebatie stoking a fire in the veld. There was no fire.
The lights
in Dixon street face the houses, that is away from the veld and away
from the place in the veld where the body was found
at point B.
109.
In
cross-examination Mr Lebatie said that he was 35 years old at the
time of trial. He was 34 at the time of the murder of Ms Dollie.
Ms
Dollie was 21 when she died. He had known her for six years. He had
therefore known her from the time she was 15 years old and
he was 28
years old. She was not really a child because she frequented drug
houses. It had never occurred to him to estimate her
age. If he had
not supplied her with drugs she would have got them elsewhere. She
was using drugs before they met.
110.
Mr
Lebatie said that Mr Pitt had a motive to lie to the court. After Mr
Pitt and Mr Lebatie had left Ms Watson’s laundry window
they
walked down the road and saw a car that they could steal. Mr Lebatie
said that he could get R6 000 for the car and that
Mr Pitt would
get R3 000. Mr Lebatie sold the newly stolen car, at about 3am
or 4am but never gave Mr Pitt his share. During
the theft Mr Lebatie
handed the speakers of the car to Mr Pitt. The two men had spent
about 35 – 40 minutes together in stealing
the car. Mr Lebatie
had left Mr Pitt very close to where the car had been stolen. It was
about five houses from the Watson house.
Ms Naidoo challenged Mr
Lebatie saying that none of this detail had been put to Mr Pitt in
cross-examination. Mr Lebatie said that
he had told Mr Hlazo of this.
111.
Later
that Sunday morning Ms Watson phoned Mr Lebatie. She wanted money for
nappies for her baby. Mr Lebatie sent her R100 via his
son.
112.
Mr
Lebatie and Mr Pitt were acquaintances rather than friends.
113.
Mr
Lebatie said that when he met Ms Watson at about 11am on Saturday 22
August 2015 she had given him R50. In total he then had
about R600 or
R700. During the day he spent most of the money on drugs and
cigarettes leaving him with about R60 or R70 at the
time he was
driven off in Mr Morgan’s vehicle with Mr Pitt and Ms Dollie.
114.
When Ms
Dollie had got out of Mr Morgan’s car Mr Lebatie also got out
of the car and followed her. He told her that they were
going to G’s
place. Because she insisted on going to Eden’s he let her go.
115.
Mr
Lebatie spent about 20 – 25 minutes with Ms Dollie after Mr
Morgan and Mr Pitt had left and before Mr Lebatie and Ms Dollie
split
up. Mr Lebatie had watched Ms Dollie take about 5 – 8 minutes
to walk from the place they parted to the corner of Katz
and Samuel
street. From that time it took Mr Lebatie about 10 minutes before
coming across Mr Pitt in the veld. As he walked he
saw no fire and
heard no scream.
116.
It was
common cause between Mr Pitt and Mr Lebatie that there was no other
person in the veld at the time.
117.
Mr
Lebatie denied that Mr Morgan had been stopped by the Metro Police at
point X on the photo on D14 as marked by Mr Morgan. He
said that the
Metro Police had stopped Mr Morgan at a point Mr Lebatie marked MP on
the photo on D3. This point is where Katz street,
coming down the
photo from top to bottom as the rectangular photo is held with its
length sideways, approaches a T-junction with
a tarred road at the
bottom of the picture. Mr Lebatie marked, as MU on the photo on D3,
the point where Katz street meets the
main road. Mr Lebatie does not
know the name of this road. This road is one block from Samuel
street. Dixon street is one block
from Samuel street but in the
opposite direction. In other words Dixon street is two blocks from
point MU.
118.
Mr
Lebatie found out about Ms Dollie’s death on Facebook the next
day, Monday.
119.
In
cross-examination Mr Lebatie said that on arrest about two days after
the night in question he had explained everything to a
police officer
named Sharne Buys. She asked him if Ms Dollie had been at Eden’s.
Later officer Buys told Mr Lebatie that
she had examined the video
footage of Eden’s and seen Ms Dollie at Eden’s with a man
holding a beer but with his back
to the camera. Ms Naidoo asked Mr
Lebatie why this version had not been put to Mr Kapito. Mr Lebatie
replied that this was his
first trial. He said that he had called as
a witness the investigating officer in the present case who was
present in court as
Mr Lebatie spoke. Ms Naidoo suggested that the
evidence about officer Buys was a recent fabrication because of the
fact that Mr
Hlazo had not cross-examined Mr Kapito along these lines
and because not only Mr Hlazo but also Mr Lebatie himself had
confirmed
that exhibit F could be admitted under
section 220.
120.
After
Mr Lebatie’s evidence, Mr Hlazo closed the defence case.
FINDINGS
121.
Having
considered all the evidence, I am of the view that the evidence of Ms
Watson, Ms Birkenstock, Mr Stigling and Mr Morgan is
reliable. They
appeared not to embellish their evidence. They seemed to answer
questions honestly and without any attempt to evade
the question.
Where there are discrepancies within the evidence of each witness or
between these witnesses I put this down to lack
of orchestration
between them and the ordinary fallibility of honest witnesses. Ms
Watson, like the other witnesses referred to,
readily conceded having
smoked drugs. She could have embellished her testimony by saying that
she had asked Mr Lebatie if he had
killed Ms Dollie rather than
simply if he had done it. She did not.
122.
I do
not see any sinister significance for the state in Ms Birkenstock
breaking the Engen garage incident into two parts. She was
never
asked if the incident had two parts. I gained the impression that she
had honestly not been astute to break the incident
into its two parts
when she first related the Engen garage episode.
123.
In my
view, the contradiction in Mr Stigling’s evidence about
precisely what he said to Mr Lebatie during the modem incident
is so
minor as not to reflect adversely on his reliability as a witness.
124.
Ms
Watson, Ms Birkenstock and Mr Pitt gave evidence to the effect that
on Saturday 22 August 2015 Mr Lebatie was not his normal
self. In my
view, this evidence, considered either in isolation or together with
all the other evidence does not point to
the guilt or otherwise
of Mr Lebatie.
125.
Mr Pitt
was at times evasive in cross-examination. His reasons for not
alerting the four persons he could have alerted to Ms Dollie’s
danger may possibly be true but I have a reasonable doubt that they
are true. Mr Pitt was equivocal about whether or not he had
identified Mr Lebatie at the fire or whether he simply followed the
figure at the fire until their paths met. I shall return to
this
point. Mr Pitt claimed in evidence at one point that God had spoken
through him. He claimed that crystal meth improves one’s
vision.
126.
I have
a reasonable doubt as to the overall reliability of Mr Pitt’s
evidence. I limit the import of his evidence only to
the common cause
meeting between him and Mr Lebatie in the veld and to other parts of
the evidence where Mr Pitt’s evidence
is corroborated either by
other witnesses, by Mr Lebatie or by the admissions. I accept Mr
Pitt’s evidence that he saw a
fire, at night, at point B
shortly before his path crossed that of Mr Lebatie and that, at a
minimum for the state Mr Pitt saw
a figure at the fire and followed
the figure until the figure turned out to be Mr Lebatie. The
photographs referred to above and
the evidence of Constable Mulaudzi
prove that there had been a fire at point B. These photographs and
the evidence of Constable
Mulaudzi do not prove the time of the fire.
However, Mr Lebatie denied having seen a fire or any other person in
the veld besides
Mr Pitt. In my view, the possibility that Mr Pitt
saw a fire, at point B, which was unrelated to Ms Dollie is remote in
the extreme.
127.
There
is no evidence suggesting that Mr Pitt was on the scene when the body
was found on the Sunday morning. It cannot reasonably
be inferred
that he extrapolated his evidence, that he saw a fire the night
before, from the remains of the fire on the Sunday
morning. In
my view, the state has proved beyond a reasonable doubt that Mr Pitt
saw the fire when says he did, that is shortly
before he identified
and encountered Mr Lebatie in the veld.
128.
In my
view it is probable, beyond a reasonable doubt that the body was
burnt where it was found. If the body was burnt and then
moved it
means that the person or persons who carried the body did so while
the body was burning. This is so as there was much
burnt grass under
and around the body as found in its burnt state. In my view, the
possibility that the body was carried while
it was burning is
extremely remote. If I am wrong, then in my view it is irrelevant
that the body may have been burnt and then
moved to the place it was
found. I say so because considering all the evidence in the
case that other place had to be very
close, at most a few metres, to
the place where the body was found.
129.
I hold
that the state has not proved beyond a reasonable doubt the “
dalla
”
threat
allegedly made by Mr Lebatie to Mr Pitt against Ms Dollie. This
threat, denied by Mr Lebatie, was made by Mr Lebatie, according
to Mr
Pitt when the two men were alone, walking out of earshot of Ms Dollie
after having left G’s house. The state has not
proved that late
the next morning, that is the Sunday morning, Mr Lebatie told Mr Pitt
over the phone to shut up or he would get
hurt.
130.
Mr
Lebatie’s evidence was that, after he and Ms Dollie parted
ways, he decided to continue walking along Katz street. The
veld, at
the place where Ms Dollie’s body was found was to his right and
very dark. That veld was known to be frequented
by robbers. Katz
street had lights. He would use the relative safety of Katz street
and its lights to walk to his destination,
ultimately G’s house
where he would be able to find a pipe. After walking about 40 metres
along Katz street, after Dixon
street, (and passing point J which is
about 50 paces from point B where the body was found) and with the
veld on his right he suddenly
decided to take a shortcut into the
veld. This part of the veld had some light. Soon after he entered the
veld he passed a point
about 30 metres away from point B. As he
entered the veld he searched for a weapon in case he needed to defend
himself against
robbers. This version is not reasonably possibly
true. If robbers were a concern for Mr Lebatie he would not have
entered the veld
at all. This is particularly so as, on Mr Lebatie’s
version the robbers he feared would have had a double advantage over
Mr Lebatie as they would have been in the dark, unseen and Mr Lebatie
would have been visible in the relative light. This finding
places Mr
Lebatie in the veld, very close in time to Ms Dollie as last seen
alive, and in a place very close to where her body
was found. In my
view, Mr Lebatie was there for a reason other than taking a shortcut.
131.
I bear
in mind of the warning by Smalberger AJA in
S
v Mtsweni 1985(1) SA 590 AD
at 593
I - 594D against inferring guilt necessarily from dishonest testimony
by an accused person. However, Mr Lebatie, on his own
evidence is a
drug dealer, a car thief, a cellphone thief and is well known to the
police. On his own evidence, he sold drugs to
and smoked drugs with
Ms Dollie from the time she was 15 years old. He stated in evidence
that he is a protector of his female
clients and friends. He is
clearly streetwise. In testimony he gave evidence fluently and
confidently. In my view he is not a naïve
person. He did not lie
about the reason for his having been in the veld in an attempt to
avoid being labelled a thief or drug dealer.
He lied in an attempt to
avoid the compelling inference, which inference negates all other
reasonable inferences, that he was with
Ms Dollie when she met her
death.
132.
The
evidence of Ms Watson that Mr Lebatie admitted killing Ms Dollie
buttresses a finding that Mr Lebatie was in the veld for a
guilty
purpose in relation to Ms Dollie rather than for innocent reasons.
The evidence of Ms Birkenstock concerning the knife threat
by Mr
Lebatie to Ms Dollie at the Engen garage, Ms Birkenstock’s
evidence that Ms Dollie had complained to her about being
harassed by
Mr Lebatie for his pipe and Ms Birkenstock’s evidence of Mr
Lebatie’s outburst in anger at Ms Dollie at
G’s house
further strengthen the case for the state that Mr Lebatie was angry
with Ms Dollie.
133.
Mr
Lebatie had both motive and opportunity to murder Ms Dollie.
134.
Mr
Lebatie, short of money and anxious to get cash to buy drugs agreed
to be taken by Mr Morgan to Lawley so that Mr Morgan could
give Mr
Lebatie R300 cash for the stolen cellphone. Mr Lebatie chose to go to
Lawley rather than simply wait for Mr Morgan to fetch
the money and
come back to the Engen garage. On the way, however, Mr Lebatie
changed his mind about the importance of clinching
the cellphone
deal. When Mr Morgan stopped his car and Ms Dollie got out Mr Lebatie
immediately got out of the car. He did so because,
on his version, Ms
Dollie had got out of the car. He got out to follow her. This
necessarily means that it was more important to
him to follow Ms
Dollie than to pursue his previously important task of clinching the
cellphone deal. The precise place where Mr
Morgan stopped his car and
Ms Dollie got out differs depending on whether Mr Morgan or Mr
Lebatie is correct. It matters not. On
either version Ms Dollie and
Mr Lebatie got out of the car a few houses away from the corner of
Katz and Samuel streets. In my
view, Mr Lebatie got out of the car
and followed Ms Dollie for a nefarious purpose. Mr Lebatie said
that he had noticed the
Metro Police stopping Mr Morgan only after Mr
Lebatie had followed Ms Dollie out of the car.
135.
It is
possible that Mr Lebatie and Mr Pitt, acting together killed Ms
Dollie. It is not the evidence of either man that this is
so. No
motive for Mr Pitt to kill Ms Dollie was suggested in evidence. Mr
Pitt, on his own evidence lied to officer Mathonsi about
his reason
for being opposite the officer’s house, that is perhaps 20
metres from where Ms Dollie’s body was found.
Mr Pitt had the
opportunity to kill Ms Dollie. If the two men acted together then Mr
Lebatie is necessarily guilty, it being no
defence to count 1 that Mr
Lebatie had an accomplice if indeed he had one.
136.
In my
view, the possibility that Mr Pitt, acting alone or at least not with
Mr Lebatie but with another person or persons, killed
Ms Dollie is
remote in the extreme. There is no evidence for such a finding.
137.
In my
view, the failure of the state to establish an approximate time of
death, other than through the combined evidence of Mr Pitt
and Mr
Lebatie read with the relevant admissions does not detract
significantly from the strength of the state’s case.
138.
In
R
v Blom
1939 AD
188
at
202 – 203 it was held that when reasoning by inference the
inference sought to be drawn must be consistent with all the
proved
facts and these facts must be such that they exclude every reasonable
inference from them save the one sought to be drawn.
By no stretch of
the imagination is Mr Lebatie’s guilt inconsistent with any
proven fact. In my view, no reasonable inference
may be drawn from
any proven fact which points to his innocence.
139.
I
consider the likelihood that the murder was planned or premeditated.
The possibility that Ms Dollie went voluntarily into a dark
veld is
remote in the extreme. There is no evidence that when Mr Lebatie
walked along Katz street and into the veld he had any
weapon or
ligature. In my view, it is reasonably possible that in the heat of a
confrontation an intention to harm, assault or
rape Ms Dollie
suddenly turned into an intention to murder. If Mr Lebatie did not
have a ligature on him when he entered the veld
he could have used
any ligature which he found for example the black cord found next to
the body. The state has not proved beyond
a reasonable doubt that the
murder was planned or premeditated.
140.
On the
robbery count, Mr Pitt’s evidence is confirmed by that of Mr
Stigling. Against Mr Lebatie are two additional factors.
Firstly, at
the time of the modem incident Mr Lebatie was short of money and in
need of money to buy drugs. He was unhappy about
the outstanding debt
owed to him by Mr Stigling. Secondly, Mr Hlazo had put it to Mr
Stigling that the permission given by Mr Stigling
to Mr Lebatie to
take the modem was tacit. In evidence Mr Lebatie said that the
permission was express. In my view, the state has
proved beyond
reasonable doubt that Mr Lebatie, anxious for money and irritated by
non-payment by Mr Stigling grabbed the modem
from the considerably
smaller and weaker Mr Stigling without the latter’s permission,
tacit or express.
VERDICT
1.
Count 1
– Murder – guilty
2.
Count 2
– Robbery - guilty
GC WRIGHT J
JUDGE OF THE HIGH
COURT,
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
On behalf of the State:
Adv
N Naidoo
084 264
4178
Instructed
by: DPP
On behalf of the
Accused: Adv
S Hlazo
082 835
0583
Instructed
by: Legal
Aid South Africa
Date of Trial:
8
February 2017 – 21 February 2017
Date of
Judgment: 23
February 2017