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[2018] ZAGPJHC 33
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S v Monamodi (SS087/2017) [2018] ZAGPJHC 33 (6 March 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(Gauteng
Local Division held at Johannesburg)
Case
number: SS 087/2017
In
the matter between:
THE
STATE
And
MONAMODI
LERATO
Accused
Neutral
citation: S v
Monamodi
[SS87 /2017 GLDJHBHC 27 February 2018]
Coram:
Matthys AJ
Heard
:
2-20 February 2018
Delivered
:
27 February 2018
ORDER
Having
heard the evidence and arguments on record, the following order is
made:
1.
The
accused is convicted as follows :
Count
1:
Guilty
of Murder read with the provisions in
section
51(1)
of the
Criminal Law Amendment Act 105 of 1997
.
_____________
Matthys
R
Acting
Judge of the High Court
Gauteng
Local Division (Johannesburg)
Date:
27 February 2018
REASONS
FOR JUDGMENT
Matthys
AJ:
A.
Introduction
[1]
Ms Lerato Monamodi (hereinafter referred to as the accused) aged 33
years is arraigned on one charge of Murder
[1]
.
She is legally represented.
[2]
[2]
In the indictment the prosecution alleges that the accused is guilty
of murder, in that she on or about the 5
th
day of March 2017 at 29 Mona Street Glen Marais Kempton Park,
wrongfully and intentionally killed, Refiloe Rebecca Monamodi an
adult female (hereinafter referred to as the deceased). The accused
pleaded not guilty to the charge stated. She preferred not
to reveal
the basis of her defence during the plea stage.
[3]
An overview of the probative material presented during the trial is
the following:
Real
evidence
exhibit 1 (photo album comprising photos of the crime scene and the
accused person);
Documentary
evidence
exhibit A (Declaration of death); exhibit B (post mortem report and
chain statements in regards the corpse).
[4]
Viva
Voce
evidence by 10 persons was presented. The following witnesses
testified:- Jabulani Masingi
[3]
;Isametse
Ditshego
[4]
;Molefasi
Seleteng
[5]
;Madeleine Pieterse
; Warner Pieterse
[6]
;Eric
Botma
[7]
; Dr Sajida Medar
[8]
; Maria Seale
[9]
;Itumeleng
Monamodi
[10]
; Lerato
Monamodi
[11]
[5]
The child witness Itumeleng testified with the assistance of an
intermediary Ms Seale from an informal setting and through a
close
circuit camera as provided for in
section 158
read with section 170A
of the Criminal Procedure Act
[12]
. Having conducted a competency inquiry I found the child witness to
be competent in that he was able to distinguish between truth
and
lies. He was accordingly admonished to only testify to the truth not
lies.
[13]
B.
BACKGROUND
[6]
Although the accused person was not agreeable to make any formal
admissions at the inception of the trial, I think after having
heard
all the available evidence that it would be fair to state that the
evidence giving rise to the charge of murder, is essentially
common
cause. It is therefore convenient for me to firstly state the salient
unchallenged facts and thereafter to indicate how
the state and the
defence’s versions differ.
[7]
It is not disputed that the deceased was referred to as Refiloe
Rebecca Monamodi during her life time. She was 53 years of age
and an
Advocate by profession. The accused is the deceased only child.
During 2002 the deceased was injured in a motor vehicle
accident
which caused her to become hemiplegic.
[14]
She was subsequently unable to work and was afforded financial
assistance by the Road Accident Fund
[15]
.
[8]
It is not in issue that the accused and her son Itumeleng resided
with the deceased at the crime scene situated at 29 Mona Street
Glen
Marias in Kempton Park as depicted in photo 1 of exhibit 1. Due to
the deceased’s disability, the accused took the role
as
caregiver to her mother and was registered as such, for claims with
the RAF. It is not in issue that the accused experienced
her task as
her mother’s caregiver, as a taxing burden.
[9]
Consequently she and her mother shared a strained relationship. In
this vein the evidence is not disputed that the deceased
on occasion
called for assistance from the police and complained regarding
alleged acts of domestic violence
[16]
by the accused towards her.
[10]
Amongst other, one of the incidences testified about by Seargent
Ditshego was when he met the deceased at the Nedbank in Glen
Acre’s,
where it was reported to him that the accused pressured the
deceased into drawing money from her bank account
against her will.
On the latter mentioned occasion the deceased following upon the
intervention by the police officer (as was also
done on other
occasions) requested for the accused who was present outside the
bank, not to be arrested.
[11]
The testimony by Madeleine and Warner Pieterse is that although they
never met or interacted with their neighbours
[17]
they have noticed the accused at the crime scene before the date in
question, especially when she danced to loud music on their
veranda
or drive in or out of the yard with her black Mini Cooper car.
[12]
It is their evidence that around 6h00 on the fateful Sunday morning
(5 March 2017) whilst inside their premises, situated adjacent
to the
crime scene, they were alerted to the frantic screams of the deceased
from her yard. Madeleine was joined by Warner when
they looked over
the boundary wall
[18]
, which
separates their yard from the crime scene.
[13]
They testified that they saw the deceased who was defenseless on the
ground, being dragged by her arms by a female dressed
in a white
night gown and who sported an afro hairstyle, like that of the
accused as depicted in photo 10 of exhibit 1. According
to
their testimony they also noticed a small boy child standing in close
proximity to the two women.
[14]
Traumatised by what she witnessed, Madeleine shouted at the assailant
(whom she claimed to have identified as the accused before
court)
inter
alia
that she will call the police. The evidence is that the accused
uttered the words “everything is under control” but
continued to drag and stamp on the deceased’s head with her
foot, in the midst of the deceased’s desperate screams
for
help. The two witnesses testified that the boy child present was
obviously traumatised and looked at them when he uttered words
to the
effect “Mummy is pulling/bullying grandma”.
[15]
The couple moved away from the wall to call the police. Madeleine
testified that whilst she was inside her house the deceased’s
screaming subsided to a deadly silence. She returned to look over the
boundary wall and noticed the accused that was bending forward,
in
front of the short wall around the pool
[19]
whilst performing a downward shove like motion. She stated that she
did not see the deceased then, but heard the echo of splashing
water.
The boy child in question was still nearby and appeared to be in a
state of shock.
[16]
The testimony by Itumeleng is that he is six and a half years old and
stayed at Kempton Park with his mummy Lerato and the
deceased (his
grandmother which he referred to as Babatu).It is his testimony that
on a Sunday morning the accused and the deceased
were fighting about
money .Whilst inside their house the accused went to the deceased
bedroom and placed a plastic bag over the
deceased head. The deceased
fought and removed the bag from her head.
[17]
The accused pushed the deceased to the ground and pulled her outside
towards the swimming pool. He testified that a lady next
door was at
the wall and said that she would call the police. At the swimming
pool Lerato pressed closed Babatu’s
[20]
nose then she died.
[18]
His testimony goes further to the extent that the accused changed her
clothing and took him whilst still dressed in his pyjamas
into her
car and drove to two different shopping malls, where after they went
for breakfast. His evidence is that the police arrived
where they
were and arrested his mummy Lerato and took her to jail. He testified
that after the incident he was quiet and later
when his father
fetched him, he told his granny Joyce what he witnessed. It is his
evidence that nobody told him what to say at
court, it was only his
granny Joyce that told him to speak loud.
[19]
It transpired that the police and the witness Lieutenant Colonel
Masingi were contacted and informed of the events witnessed
by the
Pieterses. According to Masingi’s testimony his wife was a
friend of the deceased. He knew the accused as the deceased’s
daughter and he had personal knowledge of the bad relationship
between the mother and daughter. He testified that on a number of
earlier occasions he or his wife had to call the deceased sister
residing at
Daveyton,
upon
requests by the deceased who complained that the accused demanded
money from her.
[20]
Having received a call around 7h19 the morning in question, Masingi
and his wife went to the crime scene. There he met Seargent
Ditshego
and another police officer who responded to the complaint received.
The motor gate to the crime scene appeared to be locked
and they
opened it by lifting the gate off its track.
[21]
Once inside the yard they discovered the deceased body floating face
down inside the swimming pool. The witness Botma who is
a paramedic
arrived and certified the deceased dead as per the contents of
exhibit A. According to Warrant officer Seleteng’s
testimony he
found the crime scene as he photographed it in photo’s 1 to 8
of exhibit 1. He was further informed that a suspect
was at the
police station, where he went and took photos 9 to13 in exhibit 1 of
the accused person. He explained that the accused
had a scratch on
her neck
[21]
and a bruise on
one of her arm
[22]
.
[22]
On the 7
th
day of March 2017, Doctor Sajida Medar, employed by the state as a
medical registrar in forensic Pathology conducted a medico-legal
post
mortem examination on the deceased’s body as per the contents
of her report exhibit B. The cause of the deceased death,
she found
to be “application of pressure to the neck and drowning”.
She explained her findings to the extent that there
were multiple
bruises found to the neck of which throttling or strangulation was
the probable cause.
[23]
The Dr elaborated that the frothy fluid surrounding the deceased
nostrils is common and indicative of a person who was immersed
in
water and who struggled for air. The inflated lungs noted were
according to her testimony, also consistent with drowning. It
is her
further testimony that the multiple indentations to the deceased
leptomeninges noted at page 5 paragraph 6 in exhibit B,
may have been
caused by blunt force to the head.
[24]
During her testimony, the accused did not emphatically deny that the
events indeed unfolded as witnessed by Madeleine and Warner,
however
she denied that she is the perpetrator who killed her mother as
alleged by the state.
[25]
She testified that she attended an event the Saturday evening, where
after she visited the Cappello’s restaurant where
she consumed
two 330ml of Savana alcoholic beverages alone. After 21h00 she
arrived home and found her son Itumeleng watching television
and the
deceased in her bedroom. She bathed Itumeleng where after they went
to bed.
[26]
Sunday morning she woke up between 6h00-7h00 and found Itumeleng to
be restless. She then decided to take him for breakfast
.It is her
testimony that she does not remember seeing her mother that morning
before she left with her son. Her testimony is that
she drove her car
to a Total garage where she bought data for her phone. From there she
drove to the Woodbridge Shopping mall to
ascertain if the Woolworths
store was open and eventually she arrived at the Glen Acre’s
shopping mall where she ordered
takeaway breakfast for her and
Itumeleng from a Spar store.
[27]
The evidence by the accused is that she was approached outside the
shop by the police who arrested her on the allegations of
having
murdered her mother. She testified that the state witnesses
Madeleine; Warner and her son Itumeleng incriminated her falsely.
[28]
She agreed that she has never met the Pieterses but conceded that
they may have seen her at the crime scene prior to the day
in
question as they testified. It is further her testimony that
Itumeleng’s father with whom she did not see eye to eye may
have influenced him to incriminate her as he testified. It was her
evidence that children are easily influenced and mimics what
they
see.
[29]
Further the accused testified that although she argued with her
mother it was insignificant disagreements sometimes about money
and
the use of a car. It is her version that the witnesses Masingi and
Ditshego who alluded that there was complaints by the deceased
that
she demanded money is taken out of proportion, since she has never
had a big fight with her mother about money.
[30]
That was a brief account of the probative material on record.
C.
EVALUATION
AND FINDINGS
[31]
The primary question to be decided is whether the state has proved
the accused’s guilt beyond reasonable doubt. I am
guided by the
often quoted dictum of the
Supreme
Court of Appeal in
S
v Glegg
[23]
in which
Rumpff
JA
made the statement that:
“
The
concept ‘reasonable doubt’ cannot be precisely defined,
but this can be said: that it is a doubt which exists because
of
probabilities or possibilities which are considered reasonable on the
ground of general human experience and knowledge. Proof
beyond a
reasonable doubt is not equated with proof beyond the slightest
doubt, because the onus to render proof at so high a standard
would
frustrate the administration of the criminal law.”
[32]
The corollary is that, if the court finds the accused’s
innocent versions to be reasonably possibly true, within the
context
of the entire body of evidence, the court shall entertain a
reasonable doubt regarding her guilt, which must redound to
the
accused benefit by an acquittal.
[24]
[33]
It is not in dispute that the deceased was murdered at the crime
scene the morning of 5 March 2017 between 6h00-7h00. It is
further
not in issue that the deceased died as a result of the application of
pressure to her neck and drowning as found by the
Pathologist.
[34]
The sole issue to be decided is whether the accused is the
perpetrator of the murder proved by the state’s evidence.
In
addition the averment by the state that the alleged murder was
planned or premeditated is required to be decided.
[25]
[35]
Counsel for the state argued that the direct evidence presented by
three state witnesses and the further circumstantial evidence
which
points towards a history of violent or abusive tendency by the
accused, towards the deceased, proves the accused guilt beyond
reasonable doubt.
[36]
The Defence Attorney on the other hand, argued that the eyewitness
Madeleine and Warner’s account on the identity of
the
perpetrator may have been mistaken due to inadequate observation and
is therefore unreliable. Further that the evidence by
the child
witness Itumeleng, may have been fabricated to the extent that it is
not what transpired. It was contended that
the accused denial
of having been the perpetrator of the murder should be upheld by the
court, as being reasonably possibly true.
[37]
Considered the general purport
of
the criminal onus, I now continue to evaluate the probative material,
with due regard of the credibility of the witnesses; the
reliability
of their evidence; the general probabilities of the case and related
authority.
[38]
The evidence presented by the state witnesses namely: Jabulani
Masingi; Isametse Ditshego; Molefasi Seleteng; Eric Botma and
Dr
Sajida Medar forms the basis for the undisputed facts proved. All
five of the above-mentioned witnesses impressed me as honest
and
objective in the presentation of their evidence. Their
respective testimony is accepted as they presented it, since I
find
no justifiable grounds upon which their evidence stands to be
rejected.
[39]
I now address the issue concerning whether it is proved by the
evidence, that the murder was planned or premeditated. In this
regard
the accepted testimony by Dr Medar is that the deceased (who was
known to have lost full mobility) was throttled and or
strangled;
injured with blunt force to the head and drowned by the assailant. To
my mind these facts proved, can only point to
a planned and
premeditated murder and I indeed find as such.
[40]
I now turn to consider the identity of the perpetrator.
In
this regard the state’s case turns on the eyewitness account of
the two Pieterses and that of Itumeleng a child witness.
It is
practice for evidence on identity to be evaluated with caution. Due
to
the
known fallibility of human observation, the reliability of an
identifying witness’s observations must be tested. It is
not
sufficient for the court to consider only the credibility of the
witness, but also to investigate the circumstances under which
the
identification was made in order to determine the reliability of the
evidence.
[41]
I took account of the undisputed fact that the incident at hand
transpired in broad daylight. Further the evidence by Madeleine
and
Warner to the extent that there were no obstruction between the two
woman and them when they stood at the boundary wall, other
than the
low level wall around the swimming pool. It is further evident by the
contents of the two witnesses testimony, that when
they ventured into
looking over the boundary wall, both of them had a particular
interest to see why the deceased screamed so panic
stricken. I find
that the circumstances during which the identification had to be made
was favourable for a correct identification.
[42]
Both these witnesses described the perpetrators attire
and hair style similarly and I find it more than coincidental
that
they described the hairstyle of the assailant as an afro which is the
type of
coiffure
[26]
sported by the accused on the particular day and prior. The
unchallenged and highly probable evidence by the Pieterse couple,
that they knew the accused by sight for some time as a person who
frequented the premises and danced on the veranda at the crime
scene,
raises the probability that their identification of her as the
perpetrator is accurate.
[43]
In addition it is so that the evidence by Itumeleng provides
substantive corroboration for the testimony of Madeleine and Warner.
It is noteworthy to mention that Itumeleng is an entirely independent
witness in relation to the Pieterses. I find it highly improbable
that the child, who was at the time younger than 6 year old, would
have been able to concoct false evidence together with total
strangers, against his own mother.
[44]
It is well known that children lacks the attributes of adults,
however I do not find the discriminatory and generalized view
testified to, by the accused convincing so as to reject the child
witnesses testimony, for the mere fact that it comes from a child.
[45]
In fact I find that Itumeleng was an excellent witness. He presented
his evidence logically albeit in his child like manner.
The evidence
presented by him, came across so naturally and it is difficult to
accept that he was coached into testifying to the
graphic events, if
he did not experience same. I further take cognisance of the fact
that the child’s testimony and that
of the two other
eyewitnesses, reciprocally serves as corroboration.
[46]
The favourable comments expressed regarding the state’s case
cannot be extended to the accused. I find that she was not
a candid
witness and the deceitful character of her evidence is exposed by the
objective and reliable evidence on record.
[47]
Further the record will speak for itself and show that the accused
adapted her evidence as the proceedings progressed. In addition
the
accused evidence to the extent that Itumeleng’s father may have
influenced him to present mendacious evidence against
her, is
speculative in nature and it is in conflict with all the reliable
testimony on record.
[48]
I find the accused denial of not having been present at the crime
scene during the murder, highly improbable. It is illogical
for
Madeleine and Warner to have heard the deceased screaming around 6h00
(which evidence went unchallenged by the defence) and
for the accused
to have woken up that morning around the same time and for her not to
become aware of the deceased’s desperate
screams.
[49]
The unchallenged evidence that proves that the accused presented with
the injuries photographed, supports my reasoning that
she was
involved in a physical altercation, shortly before she was arrested.
Her evasive explanation as to the possible circumstances
under which
she sustained the injury on her neck is of no consequence.
[50]
The evidence is overwhelming that the accused perpetrated the murder.
I reject her evidence as false, where it is in direct
conflict with
that presented by the state. Her evidence cannot be said to be
reasonably possibly true.
[51]
I find that the available evidence proves beyond a reasonable doubt
that she is the perpetrator who with premeditation; wrongfully
and
intentionally inflicted the fatal injuries which caused the
deceased’s death. I phrase the judgment below.
__________________________
Matthys
R
Acting
Judge of the High Court
Gauteng
Local Division (Johannesburg)
Appearances
1.
Counsel
for the State: Adv Khumalo
2.
Counsel
for the accused : Attorney Mr J Penton (Judicare) as instructed by
LASA
[1]
Read with the
provisions in
section 51(1)
of the
Criminal Law Amendment Act 105 of
1997
as amended.
[2]
See the
appearances herein.
[3]
The accused
neighbour and a Lieutenant Colonel in the SAPS
[4]
Seargent in
the SAPS
[5]
Warrant
officer and Photographer in the employ of the SAPS
[6]
Husband and
Wife and next door neighbours of the deceased premises (crime scene)
[7]
Paramedic in the employ of the Ekurhuleni
Emergency Services
[8]
Pathologist
in the employ of the state
[9]
Intermediary
[10]
Accused’s
son
[11]
Accused
person
[12]
51 of 1977
(CPA)
[13]
Section 164
of the CPA
[14]
Inability to
move one side of the body.
[15]
RAF
[16]
In the form of assault and financial abuse
[17]
The deceased and the accused
[18]
Depicted in photo 2 of exhibit 1
[19]
As depicted
in photo 2 exhibit 1
[20]
Deceased
[21]
Photo 11
[22]
Photo12
[23]
1973 (1) SA 34
(A).
[24]
S v V 2000(1) SACR
453 (SCA).
[25]
Section 51(1)
read with
part 1
of Schedule 2 of Act 105/97as amended
[26]
hairstyle