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[2024] ZAFSHC 62
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Kgitsane v S (37/2022) [2024] ZAFSHC 62 (23 February 2024)
SAFLII
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Certain
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Policy
In
the HIGH COURT OF south africa
FREE
STATE PROVINCIAL DIVISION
Reportable:
YES/NO
CASE NO.: 37/2022
In
the matter between:
LERATO
MARIA KGITSANE
Applicant
[1]
and
THE
STATE
Respondent
Coram:
Opperman J
Hearing:
9 February 2024
Delivered:
23 February 2024.
Judgment:
Opperman J
Summary:
Application for leave to appeal –
criminal trial – convictions and sentences – evidence of
accomplice
JUDGMENT
INTRODUCTION
[1]
The basis on which the application for
leave to appeal here rests is for the accomplice testimony to be
rejected. The State alleged
that an eight-year-old girl was abducted
for ransom, raped, and killed by the applicant and the accomplice.
[2]
Lerato Maria Kgitsane was convicted and
sentenced on 3 November 2023 and as follows:
ORDER
S v LERATO MARIA
KGITSANE
COUNT 1:
Guilty: Kidnapping as
charged.
Sentence
15 (fifteen) years’
imprisonment in terms of
section 276(1)(b)
of the
Criminal Procedure
Act 51 of 1977
.
COUNT
2
: Guilty of attempted extortion as
charged.
Sentence
5 (five) years’
imprisonment in terms of
section 276(1)(b)
of the
Criminal Procedure
Act 51 of 1977
.
COUNT
3
:
Guilty
of Rape in contravention of
section 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
, as charged.
Sentence
Life imprisonment in
terms of
section 276(1)(b)
of the
Criminal Procedure Act 51 of 1977
read with the provisions of
section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
.
COUNT
4
: Guilty of Murder as charged.
Sentence
Life imprisonment in
terms of
section 276(1)(b)
of the
Criminal Procedure Act 51 of 1977
read with the provisions of
section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
.
It is ordered in terms
of
section 280(2)
of the
Criminal Procedure Act 51 of 1977
that the
sentences shall be served concurrently.
Further orders
1.
It is further ordered that the particulars
of the accused must be included in the register in terms of
section
50(2)
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
.
2.
The accused is declared unsuitable to work
with children in terms of
section 120(4)(a)
of the Children’s
Act 38 of 2005.
3.
No order is made in terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
.
[3]
It is often argued in criminal cases that
the single witness – evidence of an accomplice’s
testimony may at no time
or rarely lead to a conviction. This fallacy
causes the administration of justice to struggle. Perpetrators of
crime have as their
core business to hide their criminal activities;
it is often only their partners in crime that can tell of it. The
witnesses are
what they are; often hardened criminals that are
familiar with the justice system and that knows how to get the best
out of it.
[4]
But
Van den Heever JA said it well in 1949. He was supported by
Watermeyer CJ and Hoexter JA.
[2]
He stated about and accomplice witness that:
Ultimately
at her own trial, as well as at the trial of applicant, she came out
with the story which the majority of the Judges
a
quo
accepted as substantially true.
Semel
mentitus semper mentitur
is as unreliable and illogical as the
maxim
falsum in uno falsum in omnibus
.
[3]
In
Regina v. Farler
(8 C. & P. 106, 108
[1839] EngR 220
; ;
173 E.R. 419)
, Lord ABINGER, C.B., stated
the policy underlying the cautionary practice in regard to the
evidence of accomplices in these terms.
“
The
danger is, that when a man is fixed, and knows that his own guilt is
detected, he purchases impunity by falsely accusing others.”
In that case the
accomplice had already been punished, so that it would seem that in
the opinion of Lord ABINGER this fact did not
dispense with
corroboration
aliunde
directly implicating the accused. On the
other hand, Wigmore, Evidence (vol. 7,
sec. 2057
, p. 322), observes:
“
The
essential element, however (in the distrust of the evidence of an
accomplice), is this supposed promise or expectation of conditional
clemency. If this is lacking, the whole basis of distrust fails.
We
have passed beyond the stage of thought in which his commission of
crime, self-confessed, is deemed to render him radically a
liar. The
extreme case of the wretch who fabricates merely for the malicious
desire to drag others down in his own ruin can be
no foundation for a
general rule
.” (Accentuation
added)
[5]
In this case the accomplice had already
been convicted and sentenced and to; among others, life imprisonment.
He, Mr. Rapuleng,
had nothing to lose and nothing to gain. There is
not a situation here wherein the accomplice wants or is even able to
“purchase
impunity”. The evidence depicted hereunder will
show that he did not exhibit a malicious desire to make the applicant
the
main culprit or exaggerate her participation.
[6]
Counsel for the applicant wants for the
version of the applicant to be accepted. That begs the question as to
whether she is guilty
of the offences on her own version if the law
is applied in regard to common purpose and disassociation. I will
deal with the evidence
in more detail later.
[7]
The
question that the court of appeal will have to grapple with is
whether the guilt of Ms. Kgitsane was proven beyond a reasonable
doubt. In doing so, it must be determined whether the trial court
committed any irregularities during the trial, and whether those
irregularities undermined Ms. Kgitsane’ s right to a fair
trial. A court of appeal may only interfere with the factual findings
of the trial court where there had been a material misdirection.
[4]
This brings me to the law on the consideration of an application for
leave to appeal.
THE
LAW: APPLICATION FOR LEAVE TO APPEAL
[8]
The contemporary test that must be applied
when an application for leave to appeal is considered and that forms
the background to
this application is based on the following:
1.
The
right to appeal is, among others,
managed by the application for leave to appeal. It may not be abused
but the hurdle of an application
for leave to appeal may never become
an obstacle to justice in the post-constitutional era. Access to
justice is access to justice.
2.
The
words “would” and “only” in the current
legislation caused some to view that the bar for granting leave
to
appeal has been raised.
[5]
[6]
All it in reality articulates is that the matter must be pondered in
depth and with careful judicial introspection and care. There
must be
a sound, rational basis for the conclusion that there are prospects
of success on appeal and another court would come to
another
conclusion.
[7]
3.
The final word was spoken in
the Supreme Court of Appeal in
Ramakatsa
and others v African National Congress and another
[2021]
JOL 49993
(SCA) in March 2021. It also added the
issue of
“
compelling
reasons which exist why the appeal should be heard such as the
interests of justice”:
[10]
Turning the focus to the relevant provisions of
the Superior Courts Act (the SC Act), leave to appeal may
only be
granted where the judges concerned are of the opinion that the appeal
would have a reasonable prospect of success or there
are compelling
reasons which exist why the appeal should be heard such as the
interests of justice. This Court in Caratco, concerning
the
provisions of section 17(1)(a)(ii) of the SC Act pointed out that if
the Court is unpersuaded that there are prospects of success,
it must
still enquire into whether there is a compelling reason to entertain
the appeal. Compelling reason would of course include
an important
question of law or a discreet issue of public importance that will
have an effect on future disputes. However, this
Court correctly
added that "but here too the merits remain vitally important and
are often decisive". I am mindful of
the decisions at High Court
level debating whether the use of the word "would" as
opposed to "could" possibly
means that the threshold for
granting the appeal has been raised.
If a reasonable prospect of
success is established, leave to appeal should be granted. Similarly,
if there are some other compelling
reasons why the appeal should be
heard, leave to appeal should be granted. The test of reasonable
prospects of success postulates
a dispassionate decision based on the
facts and the law that a court of appeal could reasonably arrive at a
conclusion different
to that of the trial court. In other words, the
appellants in this matter need to convince this Court on proper
grounds that they
have prospects of success on appeal. Those
prospects of success must not be remote, but there must exist a
reasonable chance of
succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to
exist.
(Accentuation added)
4.
The
fact remains that
the
judicial character of the task conferred upon a presiding officer in
determining whether to grant leave to appeal is that it
should be
approached on the footing of intellectual humility and integrity,
neither over-zealously endorsing the ineluctable correctness
of the
decision that has been reached, nor over-anxiously referring
decisions that are indubitably correct to an appellate Court.
[8]
GROUNDS FOR LEAVE TO
APPEAL
[9]
The application for
leave
to appeal is to the full bench of this court against the convictions
on counts 3 and 4 and sentences of life imprisonment
on counts 3 and
4 handed down on 3 November 2023. The applicant maintains that she
did not rape and murder the deceased.
[10]
The submission is that t
he court
a
quo
erred in finding that the State
proved its case beyond reasonable doubt against the applicant. In
finding that the contradictions
in the State's case was immaterial
and that Mr. Rapuleng could have made a mistake pertaining to the
said contradictions.
T
he court
a
quo
erred by not properly analyzing and
evaluating the evidence of the State’s witnesses.
Mr.
Rapuleng was a single witness as well as a co-perpetrator of the
offences in counts 3 and 4. The applicant submits that this
calls for
the so-called double cautionary approach in the evaluation of his
evidence.
Mr. Rapuleng never mentioned to
the magistrate that he and the applicant raped the deceased by
penetrating her vagina with their
fingers. Only during the taking of
the statement and the plea did he mention this aspect. The
applicant’s view is that it
is an important aspect that goes to
Mr. Rapuleng’s credibility.
“
That
there is so much detail as to the involvement of the Appellant in
count 3 and 4 does not without doubt point to the guilt of
the
Applicant.” Mr. Rapuleng admitted to being at the scene and he
had intimate knowledge of what happened there. The applicant
submitted that Mr. Rapuleng could have told lies about the applicant
due to his intimate knowledge of the offences and crime scene.
[11]
It was argued that
the court ought to have found that subjectively the court need not
believe the applicant, her version only needs
to be reasonably
possibly true. If there is doubt, she must be given the benefit of
the doubt.
[12]
On sentence the applicant maintains that
an effective term of
life imprisonment is strikingly inappropriate in that the sentence is
excessive and induces a sense of shock.
A
quo
the
court erred on the finding that there were no substantial and
compelling reasons present to deviate from the prescribed minimum
sentences for counts 3 and 4, the type of sentence imposed on the
applicant does not afford her an opportunity to rehabilitate,
the
court
a quo
did not adequately consider the applicant's personal circumstances
and the court
a
quo
overemphasized the seriousness of the offence, interest of the
society, the effect of the offence on the complainants and the
deterrent and retributive effect of sentencing.
THE EVIDENCE THAT
CAUSED THE CONVICTIONS AND SENTENCES
The case for the
applicant
[13]
It is trite that the applicant, Ms.
Kgitsane, was a pathetic witness. Her evidence had to be rejected in
total and counsel for the
applicant could not argue in any way that
her evidence must be believed. The basis argued as in the notice for
leave to appeal
is that the court need not believe the applicant to
acquit her. The reality is that there is not any version placed
before the
court by the applicant that can be regarded as sufficient
to let the case turn in favour of the applicant.
[14]
Ms. Kgitsane maintained that she did not
take part in the rape and the murder. She walked away before this
happened. The objective
facts and her own version show that she did
however, in the least and on her version, realise and foresaw that
the child will come
to some harm and be murdered. Common purpose and
dissociation come to the fore now. The law on the evaluation of the
conduct of
the accused/applicant and the evidence as it stands before
court is the following:
1.
Nugent JA in
S v Mbuli
2003 (1) SACR 97
(SCA) stated
that:
[57]
It is trite that the State bears the onus of
establishing the guilt of the appellant beyond reasonable doubt,
and
the converse is that he is entitled to be acquitted if there is a
reasonable possibility that he might be innocent (
R v Difford
1937 AD 370
at 373, 383). In
S v Van der Meyden
1999 (2) SA 79
(W), which was adopted and affirmed by this Court in
S v Van
Aswegen
2001 (2) SACR 97
(SCA), I had occasion to reiterate that
in whichever form the test is applied it must be satisfied upon a
consideration of all
the evidence. Just as a court does not look at
the evidence implicating the accused in isolation to determine
whether there is
proof beyond reasonable doubt, so too does it not
look at the exculpatory evidence in isolation to determine whether it
is reasonably
possible that it might be true. In similar vein the
following was said in
Moshephi and Others v R LAC
(1980 -
1984) 57 at 59F - H, which was cited with approval in
S v Hadebe
and Others
1998 (1) SACR 422
(SCA) at 426f - h:
‘
The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof is the test.
Doubts about one aspect of the evidence
led in a trial may arise when
that aspect is viewed in isolation. Those doubts may be set at rest
when it is evaluated again together
with all the other available
evidence. That is not to say that a broad and indulgent approach is
appropriate when evaluating evidence.
Far from it. There is no
substitute for a detailed and critical examination of each and every
component in a body of evidence.
But, once that has been done, it is
necessary to step back a pace and consider the mosaic as a whole. If
that is not done, one
may fail to see the wood for the trees.’
2.
The onus is on the State to prove its case
beyond a reasonable doubt. If the subjective version of the accused
is reasonably possibly
true after the evaluation of the evidence, the
accused must receive the benefit of the doubt and go free. This was
decreed in 1957;
sixty-seven years ago, in
S
v Mlambo
[1957] 4 All SA 326
(A);
1957
(4) SA 727
(A). The dictum is still applied and has been applied in
the courts of South Africa over the many decades that followed.
3.
For resolve in this case and slotting in
with the dictum of the Mlambo-case, the directives on the doctrine of
common purpose where
numerous perpetrators are involved, needs to be
stated. It is in, among others,
Thebus
and Another v S
(CCT36/02)
[2003] ZACC
12
;
2003 (6) SA 505
(CC);
2003 (10) BCLR 1100
(CC) (28 August 2003).
The precedent on the issue of law regarding disassociation from
common purpose is in cases such as
S v
Lungile
2000 (1) All SA 179
(SCA):
1999
(2) SACR 597
(SCA),
S v Musingadi
2005 (1) SACR 395
(SCA) and
S
v Beahan
1992 (1) SACR 307
(ZS).
4.
The
version of the accused of the event as placed before the court lies
in the hands of the accused person. If she chooses not to
avail
herself thereof or is deceitful, she has only herself to blame if an
adverse verdict is given. An accused's claim to the
benefit of a
doubt when it may be said to exist must not be derived from
speculation but must rest upon a reasonable and solid
foundation
created either by positive evidence and gathered from reasonable
inferences which are not in conflict with, or outweighed
by, the
proved facts of the case.
[9]
5.
I cannot put it better than Malan JA in the
Mlambo-case
supra
when he stated that to place a premium upon false testimony and to
afford protection to the cunning and ingenious criminal who
could
with impunity commit murders, will cause serious miscarriages of
justice that would be very real.
6.
Again, the Mlambo-case: There is no
obligation upon the Crown to close every avenue of escape which may
be said to be open to an
accused. It is sufficient for the Crown to
produce evidence by means of which such a high degree of probability
is raised that
the ordinary reasonable man, after mature
consideration, concludes that there exists no reasonable doubt that
an accused committed
the crime charged. He must, in other words, be
morally certain of the guilt of the accused.
7.
The Constitutional Court in the Thebus-case
supra,
codified the test for common purpose to exist:
In my
view, these criticisms do not render unconstitutional the liability
requirement of active association. If anything, they bring
home the
duty of every trial court, when applying the doctrine of common
purpose, to exercise the utmost circumspection in evaluating
the
evidence against each accused person. A collective approach to
determining the actual conduct or active association of an individual
accused has many evidentiary pitfalls.
The
trial court must seek to determine, in respect of each accused
person, the location, timing, sequence, duration, frequency and
nature of the conduct alleged to constitute sufficient participation
or active association and its relationship, if any, to the
criminal
result and to all other pre-requisites of guilt. Whether or not
active
association
has been appropriately established will depend upon the factual
context of each case.
(Accentuation added)
[10]
8.
Association
is defined
[11]
as
the act of consorting with or joining others and the state of being
connected together in spirit, memory or imagination. It involves
a
physical and mental presence.
9.
Where
there has been participation in a substantial manner a reasonable
effort to nullify or frustrate the effect of association
is required.
Snyman,
[12]
after
research of the relevant case law, submits that the following factors
reflect the law on disassociation:
a.
The accused must have a clear and
unambiguous intention to withdraw from the common purpose,
b.
some positive act of withdrawal must take
place,
c.
the withdrawal must be voluntary,
d.
the withdrawal must not take place when it
is no longer possible to desist from or to frustrate the commission
of the crime,
e.
the type of act needed for an effective
withdrawal depends on several circumstances, and
f.
the role played by the accused in devising
the plan to commit the crime has a strong influence on the type of
conduct which the
law requires him or her to perform in order to
succeed with a defence of withdrawal.
10.
The doctrine of common purpose thus
establishes that where two or more people agree to a commit a crime,
each will be responsible
for the acts of the others that fall within
their common purpose or design. In the judgement of
Tshabalala
v S; Ntuli v S
(CCT323/18;CCT69/19)
[2019] ZACC 48
;
2020 (3) BCLR 307
(CC);
2020 (2) SACR 38
(CC);
2020
(5) SA 1
(CC) (11 December 2019), the South African Constitutional
Court held that this doctrine applies to the crime of rape.
11.
Imperative
and slotting in with the above is the law that disassociation must
not be confused with avoidance of responsibility for
the crime or
mere squeamishness of the deed. The fact that you physically walk
away whilst the crime is committed might not cause
disassociation.
Disassociation
cuts off the intent to commit the deed; the other may only place
“distance” between the incident and
the perpetrator.
Gubbay CJ ventured the following dictum in
S
v Beahan
1992
(1) SACR 307
(ZS)
at 324 and demanded that “reasonable effort to nullify or
frustrate the effect of his contribution is required”.
In
Lungile’s case,
supra
,
which was an armed robbery resulting in death, Olivier JA said at
603g-h:
“…
it
is clear that, on whatever view one takes of the matter, there was no
effective disassociation. The first appellant’s mere
departure
from the scene is a neutral factor. It is more likely that he fled
because he was afraid of being arrested, or of being
injured, or to
make good his escape with the stolen money and goods.”
12.
The applicant, on her own version, merely
walked away and did nothing to show her dissociation. She realised on
the facts before
the court that the only option to evade detection by
the authorities is to murder the deceased. She, in the least,
realised that
Mr. Rapuleng wanted to harm and kill the deceased. The
deceased has seen them, she knew the witness from the work he had
done at
her home. The witness did state on several occasions that she
will be killed. The applicant did participate in the planning and
commission of the offences with a committed intent and premeditation
to get what she wanted and get away with it. She did this
with no
regard to the life of the deceased.
13.
She did not report the matter to anybody
afterwards in an attempt to rescue the child. On her version she
walked away with the knowledge
that the deceased will be hurt and/or
murdered. She tried to hide from the police at her parents’
place afterwards. Throughout
the trial she was deceitful and
manipulative and cunning. She at times showed the utmost insight and
intelligence and then when
cornered ended up playing dumb. Her case
must be rejected. But on her own version she remains guilty.
The case for the State
[15]
The above said; the version of the witness
and accomplice is to be preferred because it is detailed, honest and
fits the objective
facts of the case. He never over exaggerated his
evidence against the applicant and was almost gentle in his evidence
against her.
He involved her as an accomplice and not the one that
took the lead in the crimes. His evidence gave the impression that he
was
the leader.
[16]
There was not any doubt with the court that
Mr. Rapuleng is a hardened criminal with little respect for all than
himself. He is
intelligent and what he says must be taken with the
proverbial pinch of salt. There were allegations that the father of
the applicant
was blackmailed for the applicant to be let of the
hook, but it was never proven that it came from the accused. If he
still wanted
to gain some monetary advantage during this trial his
testimony was not in line with this intent.
[17]
Mr. Rapuleng had already been convicted and
sentenced to life imprisonment. He had nothing to gain or to lose.
There were discrepancies
in his evidence, but he explained it and it
did not affect his evidence as a whole if compared to the objective
facts. His evidence
was accepted with caution as prescribed in law.
In
R v Ncanana
1948 (4) SA 399
(AD) at page 405 Schreiner JA stated that:
The cautious court ...
will often properly acquit in the absence of other evidence
connecting the accused with the crime, but no
rule of law or practice
requires it to do so. What is required is that the trier of fact
should warn himself... of the special
danger of convicting on the
evidence of an accomplice; for an accomplice is not merely a witness
with a possible motive to tell
lies about an innocent accused, but is
such a witness peculiarly equipped, by reason of his inside knowledge
of the crime, to convince
the unwary that his lies are the truth. The
special danger is not met by corroboration of the accomplice in
material respects not
implicating the accused, or by proof
aliunde
that the crime charged was committed by someone.
[18]
In
his book on the Law of Evidence
[13]
Schmidt with reference to case law pointed out that the cautionary
rule that wants for corroboration implicating the accused apart
from
the evidence of the co-accused is not absolute and there may be other
factors which do away with the risk of an incorrect
finding. For
example, the accused’s untruthfulness or his failure to give
evidence to contradict or explain that of the accomplice.
I agree
with him when he goes on to say that even if such factors are absent,
there will still be compliance with the cautionary
rule if the trier
of fact understands the peculiar danger inherent in accomplice
evidence.
[19]
The
evidence of a witness can rarely be impeccable.
The
evidence of Mr. Rapuleng
is
not perfect. He did, however, not with ruthless and vengeful intent
implicate the applicant.
[14]
In
S
v Mafaladiso and Others
2003 (1) SACR 583
(SCA), Oliver JA set out the approach to be
followed when a court is faced with evidence of this nature. The
following approach
to contradictions between two witnesses and
contradictions between the versions of the same witnesses evolved:
1.
Firstly, it
must be carefully determined what the witnesses actually meant to say
on each occasion, in order to determine whether
there is an actual
contradiction and what is the precise nature thereof. In this regard
the adjudicator of fact must keep in mind
that a previous statement
is not taken down by means of cross-examination, that there may be
language and cultural differences
between the witness and the person
taking down the statement which can stand in the way of what
precisely was meant, and that the
person giving the statement is
seldom, if ever, asked by the police officer to explain their
statement in detail.
2.
Secondly, it
must be kept in mind that not every error by a witness and not every
contradiction or deviation affects the credibility
of a witness.
Non-material deviations are not necessarily relevant.
3.
Thirdly, the
contradictory versions must be considered and evaluated on a holistic
basis. The circumstances under which the versions
were made, the
proven reasons for the contradictions, the actual effect of the
contradictions with regard to the reliability and
credibility of the
witness, the question whether the witness was given a sufficient
opportunity to explain the contradictions -
and the quality of the
explanations - and the connection between the contradictions and the
rest of the witness' evidence, amongst
other factors, to be taken
into consideration and weighed up.
4.
Lastly, there
is the final task of the trial judge, namely, to weigh up the
previous statement against the
viva
voce
evidence, to consider all the evidence and to decide whether it is
reliable or not and to decide whether the truth has been told,
despite any shortcomings.
5.
If
the accomplice is a single witness for the purposes of the cautionary
rule regarding single witnesses, the court need not exercise
any
additional caution.
[15]
The
issue of corroboration
aliunde
does however come to the fore. In this case it is clear from the
photos and medical reports that the deceased was treated and murdered
as the witness testified.
[20]
The facts
convicted on were:
1.
The accused was
involved in a love relationship with Motsika Stompie Rapuleng
(witness and accomplice) who was an accused in this
matter.
2.
The accused and Mr.
Rapuleng often discussed ways to make fast and easy money.
3.
The deceased, B[…]
M[…] S[…], was an 8-year-old scholar. She attended
Mmantshebo Primary School in Thabong,
Welkom. She stayed with her
mother, M[…] S[…] and grandmother, N[…] S[…].
4.
During May 2021, the
deceased's grandmother and/or mother hired Mr. Rapuleng to do
household repairs at their house. He was paid
in full.
5.
During June 2021, Mr.
Rapuleng conspired with accused to kidnap the deceased from school
and then to extort money from her mother
and/or grandmother.
6.
On 21 June 2021 the
deceased went to school at 7h20. She was wearing her grey and white
school uniform, black school shoes and grey
socks.
7.
When the school
adjourned for the day, the accused approached the deceased as she was
leaving the school grounds. The accused had
items with her which she
pretended to sell for R20.00.
8.
The accused convinced
the deceased to take her to her mother so she could buy a tracksuit
for the deceased.
9.
The accused further
offered to buy the deceased cooldrink and snacks at a nearby tuck
shop. When they left the tuck shop Mr. Rapuleng
stopped next to them
in his car. He offered to give them a ride to the deceased's house.
10.
The deceased got into
the vehicle of Mr. Rapuleng together with the accused.
11.
When the deceased did
not arrive home after school her mother went to look for her at the
school. She could not find the deceased
and returned home.
12.
Mr. Rapuleng phoned
the grandmother of the deceased. He disguised his voice by speaking
in a Nigerian accent.
13.
The mother and
grandmother immediately reported the matter to the Police Station.
14.
Mr. Rapuleng was
again called. He, Mr. Rapuleng demanded R50 000.00 and indicated that
he would kill the child if he does not get
the money.
15.
That night the
deceased was kept at the house of the accused till the following
afternoon. Mr. Rapuleng did not want to sleep alone
with the
deceased.
16.
The accused also
phoned the grandmother of the deceased. She introduced herself as
"Nthabileng". She urged the grandmother
to convince the
family to pay the money. She indicated that she was staying in
Virginia and did not like what the kidnappers were
doing to the
child. It must be noted that the applicant denied the issue of
calling herself “Nthabileng” until a witness
for the
State confirmed this unequivocally.
17.
Mr. Rapuleng with the
aid of the accused demanded R50 000.00 which had to be deposited at
PEP Stores. He made it clear that if the
money was not paid, the
deceased would be raped and killed. Her body would be dropped where
no one would find it. This was never
disputed by the accused.
18.
When it was pointed
out that they did not have R50 000.00. Mr. Rapuleng indicated that he
was willing to accept R1 500.00.
19.
Proof that the
deceased was still alive was requested. An unknown child was
instructed to speak to the family and to pretend that
she is the
deceased. The family immediately realized that it was not the
deceased.
20.
Mr. Rapuleng phoned
again. He now demanded R3 000.00.
21.
During the evening of
22 June 2021, the deceased was locked up in the car of Mr. Rapuleng
which was parked at his residence. It
was in the middle of winter.
22.
Several calls were
made between Mr. Rapuleng and the family.
23.
The accused and Mr.
Rapuleng became despondent, they believed that they would not be
paid. They decided to kill the deceased as
she would have been able
to identify them.
24.
This
is what was testified by the witness and the testimony is accepted
beyond a reasonable doubt:
[16]
MR
RAPULENG: Then I asked her what now what must we do with this child,
because we did not get the money? The Accused did not reply,
she kept
quiet.
PROSECUTOR:
Yes?
MR
RAPULENG: The Accused then slapped this child, and the child was
sitting at the back seat.
PROSECUTOR:
How did she slap her?
COURT:
She turns her hand to the back, was she sitting in the front the
Accused, front passenger seat?
MR
RAPULENG: That is correct so
COURT:
The deceased was sitting at the back, and she slapped her with an
open hand to the back.
MR
RAPULENG: That is correct so.
PROSECUTOR:
Did she hit the child?
COURT:
Did she strike her?
MR
RAPULENG: That is correct so.
PROSECUTOR:
Where?
MR
RAPULENG: In the face.
PROSECUTOR:
Yes and then?
COURT:
Why did she do this?
MR
RAPULENG: It was out of anger because the family is refusing to give
the money.
COURT:
Thank you.
MR
RAPULENG: And the Accused undressed the child take off her pants and
her underwear.
PROSECUTOR:
Where was the Accused when she did this?
MR
RAPULENG: The Accused?
PROSECUTOR:
Yes.
COURT:
Let us take it a step back, you were in the car now is that correct
that is your white Jetta.
MR
RAPULENG: That is correct.
COURT:
You were driving Accused sitting in the front passenger seat,
deceased on the back seat?
MR
RAPULENG: Yes.
COURT:
Now the scene where you explain the Accused undressed the child were
you driving or were you stationary did you stop?
MR
RAPULENG: We were stationary at the time, and it was Phumlani
Graveyard.
COURT:
Phumlani?
MR
RAPULENG: Graveyard.
COURT:
Graveyard.
PROSECUTOR:
Is that in Thebong in Welkom?
MR
RAPULENG: That is correct.
PROSECUTOR:
And where was the Accused was she still in the vehicle?
MR
RAPULENG: That is correct.
PROSECUTOR:
Still in the front seat?
MR
RAPULENG: That is correct.
PROSECUTOR:
How did she manage to undress the child if she is sitting in the
front seat?
MR
RAPULENG: There is a space between the driver and the passenger like
any other car and she managed to turn.
PROSECUTOR:
She managed?
MR
RAPULENG: To turn.
PROSECUTOR:
And the child was she still on the backseat?
MR
RAPULENG: That is correct.
PROSECUTOR:
And what exactly did she take off, or not take off, undress?
MR
RAPULENG: Her pants and her underwear.
PROSECUTOR:
Did she completely take it off or did she just pull it down?
MR
RAPULENG: No, she only pulled it down, not completely off.
PROSECUTOR:
And the clothing that the deceased had on top what happened to that?
MR
RAPULENG: She was still wearing them.
PROSECUTOR:
And then?
MR
RAPULENG: The Accused inserted her finger in her vagina.
PROSECUTOR:
Only once?
MR
RAPULENG: Only once.
PROSECUTOR:
And then?
MR
RAPULENG: I also turned and I also inserted my finger in her vagina.
PROSECUTOR:
Why were you doing this?
MR
RAPULENG: Maybe it was because of anger because we did not get what
we wanted.
PROSECUTOR:
Now how many times did you put your finger into the child’s
vagina?
MR
RAPULENG: Only once.
PROSECUTOR:
And what was the child’s reaction?
MR
RAPULENG: She cried, but she was crying before.
PROSECUTOR:
And then?
MR
RAPULENG: I then asked the Accused what now, what are you going to do
because now the child was bleeding from the vagina.
PROSECUTOR:
What was the light at that stage the ...[intervene].
COURT:
What was the position in regard to visibility?
MR
RAPULENG: It was dark.
PROSECUTOR:
How did you manage to see the child was bleeding?
MR
RAPULENG: I was using the cabin light.
PROSECUTOR:
And then?
MR
RAPULENG: We told the deceased to wear her panty and pants.
PROSECUTOR:
Who told her?
MR
RAPULENG: The Accused, myself and the Accused.
MS
SMITH: M'Lady I did not hear what was said just before, you and the
Accused told?
COURT:
We told the deceased to wear the pants.
MR
RAPULENG: Yes and the panty.
COURT:
And the panty.
PROSECUTOR:
What did the deceased do?
MR
RAPULENG: She wore that panty and the pants.
COURT:
So, she pulled it back on?
MR
RAPULENG: That is correct so.
PROSECUTOR:
And then?
MR
RAPULENG: We waited for about two minutes.
PROSECUTOR:
Yes?
MR
RAPULENG: Wondering what was going on what was going to happen.
PROSECUTOR:
Yes?
MR
RAPULENG: Got out of the vehicle, I went to the boot to get a rope.
PROSECUTOR:
Yes?
MR
RAPULENG: Because myself and Lerato we agreed that now we must kill
the child.
PROSECUTOR:
When did you came to this agreement?
MR
RAPULENG: That was there inside the car.
PROSECUTOR:
Tell us how did it happen?
MR
RAPULENG: Murder.
COURT:
Yes, but remember we were not there, so we were now where the
deceased pulled up her pants and you waited for another two
minutes
wondering what was going to happen, is that right? So, tell us
exactly who said what and what happened?
MR
RAPULENG: I informed the Accused that when in situations like this
seeing that we arrested already we must kill this child and
hide the
evidence. After the Accused agreed to that I got out of the vehicle
to get the rope in the boot.
PROSECUTOR:
Did you discuss how you would kill the child?
MR
RAPULENG: We said we should only strangle her and leave her there.
PROSECUTOR:
Right, you went you took out rope?
MR
RAPULENG: I told Lerato to keep an eye on the child and not to get
out of the car. I went to the boot, got the rope, I tie her
hands and
her feet.
COURT:
Who tied her hands and feet?
MR
RAPULENG: Just to avoid her from running because she wanted to run
away.
PROSECUTOR:
You said you tied her hands and feet?
MR
RAPULENG: That is correct and that stage Lerato was holding her.
PROSECUTOR:
How did you tie her hands and feet?
MR
RAPULENG: Hands against each other and feet the same.
COURT:
Hands together and feet together and you make a movement as if you
turned the rope around the hands and the feet, is that
correct?
MR
RAPULENG: That is correct so.
PROSECUTOR:
Where the hands loose from the feet?
MR
RAPULENG: That is correct.
PROSECUTOR:
And how was the Accused holding her?
COURT:
Let us ask the Court Orderly to come forward, come closer to you. Now
were you still in the car or were you outside the car
now?
MR
RAPULENG: Inside the car.
COURT:
Child in the backseat.
MR
RAPULENG: The backseat.
COURT:
Was the child sitting, laying down what position was the child in
when Lerato was holding her down?
MR
RAPULENG: Sitting.
COURT:
Sitting.
PROSECUTOR:
And where was Lerato?
MR
RAPULENG: She was still sitting in the front seat but she turned to
hold the child not to move to the left or to the right.
PROSECUTOR:
As it pleases the Court, so she was holding her upper body?
MR
RAPULENG: Just before I forget before we tied the child Lerato
instructed the child to take off the tracksuit top and the jersey.
PROSECUTOR:
Yes?
MR
RAPULENG: We tied the child. After that we put on a plastic
[indistinct] colour over her face.
COURT:
You said a Checkers bag?
MR
RAPULENG: Checkers.
PROSECUTOR:
And who did it, who put it over her face as you say?
MR
RAPULENG: It was myself.
PROSECUTOR:
So, you pulled it over her head?
MR
RAPULENG: That is correct.
PROSECUTOR:
And what was the Accused doing?
MR
RAPULENG: She was holding this child and seeing that this child, we
tied the child she was just sitting there.
PROSECUTOR:
Okay so you pulled the bag over the child’s head and then?
MR
RAPULENG: We tied the plastic around her neck.
PROSECUTOR:
Yes.
COURT:
Who tied the plastic around her neck?
MR
RAPULENG: Myself.
COURT:
Okay.
MR
RAPULENG: The child cried and after a while she was quiet.
PROSECUTOR:
After a while?
MR
RAPULENG: She was quiet.
PROSECUTOR:
Did the child not try to take the bag from her head?
MR
RAPULENG: She would not have tried because now her hands were tied.
PROSECUTOR:
But if I understood you correctly her hands were tied but she was
still able to move her arms up and down?
MR
RAPULENG: Yes.
PROSECUTOR:
So, did she not try to take it off?
MR
RAPULENG: No.
PROSECUTOR:
And then when she was quiet what happened?
MR
RAPULENG: I started the car and drove to Henneman [indistinct] road.
PROSECUTOR:
Yes?
MR
RAPULENG: Lerato took out the duvet, lay it down and put the child on
the duvet.
PROSECUTOR:
Where did you stop?
MR
RAPULENG: It was on a tar road Henneman road.
PROSECUTOR:
So, you put the duvet in the field next to the road?
MR
RAPULENG: That is correct.
PROSECUTOR:
Who put the duvet there?
MR
RAPULENG: It was Lerato.
PROSECUTOR:
And then?
MR
RAPULENG: I requested her to help me to take the child and put her on
the duvet.
PROSECUTOR:
Was the child still alive?
MR
RAPULENG: No.
COURT:
How do you know that?
MR
RAPULENG: She was not making any movements.
PROSECUTOR:
Yes, and did the Accused help you to put the child on the duvet?
MR
RAPULENG: We wrapped her with this duvet ...[intervene].
PROSECUTOR:
Listen to what I am asking you. Did she help you ...[intervene].
MR
RAPULENG: We put the child on the side of the road.
PROSECUTOR:
Who carried the child?
MR
RAPULENG: Seeing that the child was heavy she helped me, we both
carried the child.
PROSECUTOR:
What happened to her tracksuit top and her jersey?
MR
RAPULENG: They jersey we have put it over her shoulders and Lerato
took the tracksuit top and her school shoes.
PROSECUTOR:
So, you put the jersey over her shoulders before you wrapped her?
MR
RAPULENG: That is correct.
PROSECUTOR:
And then after you wrapped her in the duvet what did you do?
MR
RAPULENG: We took her and we put her on the side of the road and left
her there.
PROSECUTOR:
And
PROSECUTOR:
And then?
MR
RAPULENG: I transported Lerato to her place.
PROSECUTOR:
Yes?
MR
RAPULENG: Inside the car the deceased schoolbooks were in there.
PROSECUTOR:
Her schoolbag?
MR
RAPULENG: Yes, the schoolbag with her books.
PROSECUTOR:
Yes?
MR
RAPULENG: When I arrived in Phukeng, I burned them.
25.
The hands and feet of the deceased were tied with
a rope. Her head was covered with a grey woolen hat and
her school
jersey was tied around the hat. A plastic bag was then put over her
head and she was suffocated.
26.
She was wrapped in a duvet and left for dead in the field.
27.
According to the postmortem the cause of death was: "suffocation".
28.
The state relied on the doctrine of common purpose
to prove the guilt of the applicant.
29.
It has been proven beyond reasonable doubt that at all times the
accused acted in concert with Mr. Rapuleng.
30.
Counsel for the State opposed the application for
leave to appeal strongly.
CONCLUSION
ON CONVICTIONS
[21]
The evidence, in conspectus, even with caution applied in the
evaluation and acceptance of the evidence of the
accomplice, cannot
cause leave to appeal to be granted to the applicant. The evidence on
both that of the applicant and the single
witness as supported by the
objective evidence directs to a conviction of the applicant.
CONCLUSION:
THE SENTENCES
[22] The
applicant abducted, raped, and murdered a little eight-year-old girl
with pre-meditated ruthlessness. She showed
no remorse but made a
mockery of the proceedings with her deceitful conduct in court that
caused the mother to be required to testify.
The ordeal for the
family and friends that had to attend the trial was gravely
unpleasant.
[23] There
does not exist any factors that can convince the court that the
minimum sentence decree should not be applied.
Although not the
leader in the acts she did not hesitate to participate. Her conduct
was enforced by greed. Her father did testify
that she had a
difficult childhood but that does not justify her conduct and does
not mitigate and abate the atrocity of the crimes
and the sentence to
be imposed. The law on minimum sentences need not be reiterated.
ORDER
[24]
The application for
leave to appeal to the
full bench of this court against the convictions on counts 3 and 4
and sentences of life imprisonment on
counts 3 and 4 handed down on 3
November 2023 is dismissed.
M
OPPERMAN J
APPEARANCES
Counsel
for applicant
ADVOCATE
V ABRAHAMS
Legal
Aid: South Africa
Bloemfontein
Counsel
for respondent
ADVOCATE
E LIEBENBERG
Office
of the Director:
Public
Prosecutions,
Free
State
Bloemfontein
[1]
Also
“accused”.
[2]
Rex
v Gumede
[1949] 4 All SA 9
(A) (1949 (3) SA 749
(A))
at pages 14 to 15 with reference to Schreiner AJ in
Rex
v. Ncanana
1948 (4), S.A.L.R. at page 405.
[3]
The
old maxims “falsus in uno, falsus in omnibus” (false in
one thing, false in everything) and “semel mentitus,
semper
mentitur” (once a liar, always a liar) are not part of the
South African law of evidence anymore.
[4]
Sekoala
v The State
(579/2022)
[2024] ZASCA 18
(21 February 2024) at [27] to [30].
[5]
Moloi
and Another v Premier of the Free State Province and Others
(5556/2017)
[2021] ZAFSHC 37
(28 January 2021).
[6]
Moloi
and Another v Premier of the Free State Province and Others
(5556/2017)
[2021] ZAFSHC 37
(28 January 2021),
Hans
Seuntjie Matoto v Free State Gambling and Liquor Authority
4629/2017[ZAFSHC]
8 June 2017,
K2011148986
(South Africa) (Pty) Ltd v State Information Technology Agency (SOC)
Ltd
2021 JDR 0273 (FB).
[7]
17.
Leave to appeal. —
(1) Leave to
appeal may only be given where the judge or judges concerned are of
the opinion that—
(a)(i)
the appeal would have a reasonable prospect of success; or
(ii)there
is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under
consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section 16 (2) (a); and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead
to a just and prompt
resolution of the real issues between the parties.
[8]
Shinga
v The State and another (Society of Advocates (Pietermaritzburg Bar)
intervening as Amicus Curiae); S v O'Connell and others
2007
(2) SACR 28
(CC
).
[9]
S
v Mlambo supra
at
738B-C.
[10]
Thebus
and Another v S
(CCT36/02)
[2003] ZACC 12
;
2003 (6) SA 505
(CC);
2003 (10) BCLR 1100
(CC) (28 August 2003) at paragraph 45.
[11]
"Association."
Definitions.net.
STANDS4
LLC, 2016. Web. 16 Feb 2016.
http://www.definitions.net/definition/Association
.
[12]
Criminal
Law
:
Part 1, Chapter VII Participation and accessories after the fact, at
pages 223 to 230, Last Updated: 2020 - Seventh Edition.
https://www.mylexisnexis.co.za/Index.aspx
on
20 February 2024.
[13]
Schmidt,
CWH: BA LLD (FS),
Law
of Evidence
,
Chapter 4 at 4.3, 4.1.1 & 4.3.3, Last Updated: May 2023 - SI 21.
https://www.mylexisnexis.co.za/Index.aspx
on
20 February 2024.
[14]
R
v Gumede
1949 3 SA 749 (A)
at page 758.
[15]
See
R
v P
1957 (3) SA 444
(A) and
S
v Gokool
1965 (3) SA 461
(N) at 472A.
[16]
Transcribed
record of proceedings.