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[2022] ZAFSHC 164
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S v Tshehlo (08/2020) [2022] ZAFSHC 164 (23 June 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
08/2020
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
THE
STATE
vs
SELLO
JOSEPH TSHEHLO
Accused
HEARD
ON:
17
AUGUST 2020 – 19 AUGUST 2020 &
09
MAY 2022 – 12 MAY 2022 &
22
JUNE 2022
CORAM
:
DAFFUE
J
JUDGMENT
BY:
DAFFUE
J
DELIVERED
ON:
23
JUNE 2022
I
INTRODUCTION
[1]
A four-year-old girl child was raped and
murdered during the winter of 2019 in the B[....] township adjacent
to the small town of
T[....] N[....]2.
The assailant decided to get rid of the
body by disposing it in a pit toilet.
The gruesomeness of these deeds are
beyond comprehension.
It
must be the work of a monster.
It
is recorded that although the case was set down for hearing during
August 2020, it could not be finalised during the time allocated
as
the accused requested a postponement to obtain the services of a DNA
expert. Since then the accused had problems to arrange
finances and
his attorneys even withdrew at a stage, causing the Legal Aid Board
to come to his assistance.
Eventually
the
accused
had
to
resign
from
his
employment
and used his pension benefits to provide
for his legal costs.
After
several postponements the matter was set down for trial in May 2022,
but had to be postponed again on the fourth day to 21
– 23 June
2022 due to unforeseen circumstances.
The accused’s new counsel also
requested that certain State witnesses be recalled which caused
further delay.
Fortunately,
the matter can now be finalised.
II
THE PARTIES & THEIR LEGAL
REPRESENTATIVES
[2]
Adv E Liebenberg appeared for the State.
The accused is Mr Sello Joseph Tshehlo,
a 36-year-old male person as at the time of the incident, residing in
B[....] township,
T[....] N[....]2.
Initially Adv MS Mazibuko appeared for
the accused on instructions of WJB Attorneys, but in 2022 he was
substituted by Adv JJ Buys.
III
CHARGES
[3]
The accused is charged with three
counts, to wit:
“
1.
Count 1: Kidnapping
In
that upon or about the period 21 – 25 July 2019, and at or near
B[....] Location, in the district of T[....] N[....]2,
the accused
did unlawfully and intentionally take away N[....] C[....], the minor
child of M[....] M[....]2 C[....] being the mother,
with the intent
to deprive the said M[....] M[....]2 C[....] of the lawful custody of
N[....] C[....].
2.
Count 2:
Contravening the provisions of
section 3, read with sections 1, 50, 55,
56(1),
56(A) as amended, 57, 58, 59, 60 and 61 of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 32 of 2007
, further read
with
sections 94
,
1.2
5cm; margin-bottom: 1cm; line-height: 200%">
256
and
261
of the
Criminal Procedure Act, 51 of 1977
, further read with
the provisions of
section 51(1)
of the
Criminal Law Amendment Act,
105 of 1997
, as amended
In
that upon or about the period 21 – 25 July 2019, and at or near
B[....] Location, in the district of T[....] N[....]2,
the accused
did unlawfully and intentionally commit an act of sexual penetration
with N[....] C[....], a 4-year-old female person,
by penetrating her
vagina with his penis without her consent and thus raping her.
3.
Count 3:
Murder, read with the provisions
of
s 51(1)
and
Part 1
of Schedule 2 of Act 105 of 1997
In
that upon or about 21 – 25 July 2019, and at or near B[....]
Location, in the district of T[....] N[....]2, the accused
did
unlawfully and intentionally kill N[....] C[....], a 4-year- old
female person.”
As
set out in the indictment the second and third counts must be read
with the provisions of s 51(1) of Act 105 of 1997 as amended.
IV
THE PLEA, THE PLEA EXPLANATION AND
ADMISSIONS
[4]
The accused pleaded not guilty to all
three charges and elected not to make any plea explanation.
[5]
Bearing in mind the notice in terms of
s
212B
of the
Criminal Procedure Act
(“the CPA”) and the
accused’s response thereto during the pre-trial procedure, I
requested Mr Mazibuko to confirm
whether the admissions could be
admitted formally in terms of
s 220
of the CPA.
He confirmed this.
[6]
I admitted the notice in terms of
s 212B
and the reply thereto as exhibits “A” and “B”
respectively and the following admissions were duly recorded
in
accordance with
s 220:
1
.25cm; margin-bottom: 1cm; line-height: 200%">
“
1.
The deceased is N[....] C[....], a four-year-old female person.
2.
The deceased went missing on 21 July
2019.
3.
The body of the deceased was discovered
on 25 July 2019 at house number 7793 Zone 2, T[....] N[....]2.
4.
The body of the deceased did not sustain
any further injuries from the time of the discovery to the time a
post-mortem examination
was conducted on her body by Dr J Mohai.
5.
The contents of the post-mortem report
by Dr Mohai are correct and correctly reflect the findings of Dr
Mohai.
6.
The photo albums and key thereto,
depicting the crime scene compiled by Cst Kgomotso Sehularo, is a
correct portrayal of what was
photographed on 24 and 25 July 2019.
7.
The cause of death of the deceased is:
“Blunt face and head injuries.”
[7]
Upon acceptance of exhibits “A”
and “B”, Mrs Liebenberg handed in the following further
documents by agreement:
7.1
The report on the post-mortem
examination pertaining to the deceased by Dr John Mohai as exhibit
“C”;
7.2
A photo album compiled by Constable
Sehularo containing 45 photos and a google map as exhibit “D”;
7.3
A further photo album prepared on 12
August 2020 by the same photographer, containing 6 photos, as exhibit
“E”.
It
is worth mentioning that the aforesaid admission of photo albums
(plural) is strictly speaking incorrect.
Only one photo album was available when
the accused responded positively to the notice in terms of
s 212B.
However, the further photo album,
prepared the week before the trial commenced, was also not in
dispute.
V
SUMMARY OF THE EVIDENCE
[8]
The following is a summary of the
evidence tendered to the court. I shall deal with the evidence in the
chronological order in which
the witnesses testified:
8.1
The first witness was
Mrs
M[....] M[....]2 C[....]
.
i.
She is a 44-year-old woman and the
mother of N[....] C[....]. Although the witnesses and legal
representatives throughout the trial
referred to the minor child as
N[....], I shall herein refer to her as “the deceased”.
The deceased was born on 7 December 2014
and thus four and a half years old when she was killed.
The deceased stayed with the witness at
her residential home in Zone 2 (also referred to as B[....] 2),
T[....] N[....]2.
The
witness knows the accused by his nick name, Bonki.
The two of them grew up together. The
deceased knew the accused as Uncle Bonki. The witness was aware of
the fact that the accused
from time to time gave money to the
deceased to buy sweets.
ii.
On 21 July 2019 and whilst she was
watching TV at the so-called corner house across the street from her
home, the deceased and some
friends,
inter
alia
D[....] and O[....], were
playing in the street in front of B[....]2’s house. At a stage
D[....] approached her whereupon
she unsuccessfully enquired about
the deceased’s whereabouts. This was between 17h00 & 18h00
that afternoon, although
she was not quite sure of the time.
The deceased was missing.
After a brief and unsuccessful search,
she reported her missing child to members of the South African Police
Service (“SAPS”).
The
21st
of
July 2019 was a Sunday.
iii.
The next morning she took a photograph
depicting the deceased to SAPS. The search for the deceased on Monday
and Tuesday was fruitless.
On
Wednesday SAPS discovered clothes belonging to the deceased.
She identified the clothes depicted on
the photo albums as those that the deceased was wearing the
particular Sunday.
She
was the one that dressed the deceased on the day when she went
missing.
iv.
SAPS found the body of the deceased on
Thursday evening.
The
witness confirmed the aerial photos depicted on exhibit “E”
and indicated the positions of her house, that of B[....]2,
the
corner house, the shop, the street where the clothes were discovered,
Bonki’s house and the pit toilet where the deceased
was found.
She did not see the accused on the day that the deceased went
missing.
v.
During cross-examination she testified
that D[....] had told her that “a certain brother with short
pants and a bald head”
removed the deceased from the place
where the children were playing on the 21st of July.
According to her D[....] knew Bonki, but
she could not explain why he did not refer to the person that removed
the deceased as Bonki.
According
to D[....], Bonki did not want him to join them, but indicated that
the deceased would come back to them with sweets for
him as well.
Later on she mentioned that D[....] did
not know Bonki’s name, but only knew him by sight. According to
the witness she
“totally
forgot”
to
whom D[....] was referring.
She
could not make out the identity of the person with the description
given to her.
vi.
On Tuesday the other child, O[....],
told her that U[....] father took the deceased away.
In re-examination the witness mentioned
that U[....] was just a small boy and it is possible that O[....]
believed the accused to
be his father whilst it is apparent that the
accused was his uncle.
vii.
It was finally put to the witness in
cross-examination that the accused normally gave money to children in
the neighbourhood to
buy sweets.
The
witness could not deny this.
viii.
In May 2022 she was called back at the
request of Mr Buys and with leave of the court in order for Mr Buys
to put certain statements
to her.
She
testified that she only realised that D[....] was referring to the
accused after the deceased was found in the pit toilet.
D[....] did not mention the name of the
person that took the deceased away; merely that he was wearing short
pants and his head
was shaven clean (or as interpreted: “bald
shaven head”).
He
did not tell her about the colour of the pants.
She also asked O[....] about the
perpetrator and he told her it was U[....] father.
His residence was pointed out, it being
his parental home, although the accused was not staying there.
She did not go to the accused’s
parental home as she had already reported the matter to SAPS.
When asked who is U[....] father, the
witness could not answer.
She
was uncertain when this conversation took place. Initially she said
on Tuesday, but it could also be on the same Sunday.
She also asked the other children to
provide her with details of the perpetrator, but no one could assist.
8.2
The second witness was
Ms
M[....]2 Elisa Tsokodibane
.
i.
She is 25 years old and stays at 7733
B[....] 2, T[....] N[....]2. On 24 July 2019, that is the Wednesday
after the deceased went
missing, she found a child’s clothing
underneath the trees in their yard.
Her
grandfather instructed her to throw the clothing in the street, as it
might be stolen property.
She
did so.
After
a while SAPS and other people arrived at their home.
The clothing consisted of a pair of
shoes – running shoes - in Afrikaans: “tekkies”,
tracksuit pants and a panty.
She
identified the street next to their house on photos 1 and 2 of
exhibit “D” as well as the clothing depicted on photos
3
to 7.
She
confirmed that the shop is located opposite their house.
She knows the accused by sight only, but
did not know the deceased.
No
questions were put to her in cross- examination and her evidence is
therefore uncontested.
8.3
The third witness for the State was
Ms
Kedidimetse Sebetlela
.
i.
She is 29 years old and known as
B[....]2.
She
confirmed that she was staying in the same street as the deceased and
her mother. She rented a room at the place where the child
O[....]
was staying.
She
confirmed the layout of the township depicted on exhibit “E”
although she marked her place of residence adjacent
to the place
indicated by the first State witness.
Nothing turns on this.
ii.
Whilst at home and at about 16h30 on
Sunday 21 July 2019 Bonki arrived.
She
invited him in.
She
had visitors.
He
wanted to talk to her outside. He proposed sexual intercourse to her.
There was a verbal altercation between
them and she told him that her husband would be arriving from work
soon.
She
asked him for a cigarette whereupon he gave her about R8 to enable
her to buy a cigarette and sweets for the children.
He left.
iii.
Later that evening – at about
20h00 - the accused arrived at her home again, this time without even
knocking on the door.
At
that stage her boyfriend and her brother were present.
They ignored the accused and after a
while he left.
The
witness explained that when she saw the accused that afternoon he was
wearing a grey and
white
Adidas
jersey
and
maroon
Chino
pants
with
Carvella shoes. He had a quart beer
bottle in his hand. She indicated that he was under the influence of
alcohol, but could walk
and talk properly. She confirmed that at that
stage a group of children, including her and her cousin’s
children, were playing
in the street in front of her house, but could
not say whether the deceased was amongst them.
iv.
When the accused returned that evening
he was still wearing the same grey and white Adidas top, but this
time short orange pants.
He appeared frightened.
He was still drinking from a quart
bottle of Castle beer.
Although
he was under the influence, he was not staggering and “still
okay”.
v.
She was referred to photos 15 to 18 of
exhibit “D” depicting clothing photographed in the
accused’s house and
identified the maroon Chino pants, the
short red (orange) pants, the Carvella shoes as well as the grey and
white Adidas top.
vi.
During cross-examination she confirmed
making a statement to SAPS on 26 July 2019.
Her statement was properly proved and
handed in as exhibit “F”.
It
is clear that she conveyed her version to the police officer in
Sesotho who drafted the statement in English. Although she confirmed
that the statement was read back to her, it appeared in
re-examination that the officer merely explained the statement to her
in Sesotho after having penned it down.
She denied informing the police officer
– as is apparent from the statement - that she had promised to
go to Bonki’s
place that evening, but failed to do so.
She also mentioned in her statement that
the accused was wearing the same clothes on both occasions, but
denied this to be correct
in her testimony.
She was also criticized for mentioning
several aspects in her testimony which were not recorded in her
written statement.
Furthermore,
in her statement she said that the accused “look very drunk”
which is contrary to her version in court.
vii.
It was put to her the reason why Bonki
returned to her that evening was that she requested him to return
later.
She
responded that she would not at all say that as she knew that her
boyfriend would be returning home from work.
(This statement on behalf of the accused
is in any event a contradiction of the version that she promised to
go to Bonki’s
place that night).
It was also put to the witness that the
accused went to a tavern with friends between the two visits.
The witness could not respond thereto.
viii.
This witness was also called back at the
request of Mr Buys and with leave of the court for certain statements
to be made to her.
She
denied agreeing with the accused the previous Saturday at the Kiddo’s
tavern that he would meet her that Sunday at 4 o’clock.
She
could not make such an appointment, the reason being that she was
expecting her boyfriend.
This
version put to her was new as the previous counsel did not mention
that at all.
She
conceded that the accused was at her home the first time for a short
while or as put to her, about three minutes.
She could not deny that the accused went
back to Kiddo’s tavern from where he came after he left her.
She also agreed, although uncertain of
the time, that the accused arrived at her place the second time at 8
o’clock that night.
She denied the statement that the accused
went back to her at that time as agreed the afternoon.
She could not agree as she was expecting
her boyfriend.
She
denied that the accused was wearing the same maroon pants on both
occasions and insisted that he wore the short orange pants
the second
time.
She
told the SAPS officers on Thursday when they questioned her that the
accused was the last person she saw that Sunday night.
It was put to her that Shadrack Moshodi
was at Kiddo’s tavern, but she did not know this person.
8.4
The
fourth
witness
to
testify
for
the
State
was
Captain
Molefi
Joel
Phasiwe
.
i.
He is stationed at the FCS in Selosesha,
the unit of SAPS dealing with family violence and child protection.
He became the investigating officer in
this matter at a later stage.
ii.
On Wednesday, 24 July 2019 he was
approached by the commander of FCS to assist them with investigating
a case relating to a missing
child.
During the search he went to B[....]2’s
place as they were informed that children were playing next to her
house on that Sunday.
They
found a child, D[....], who apparently could give more information
pertaining to the person that had taken away the deceased.
At that stage they also had information
pertaining to a person staying in Botshabelo and decided to approach
that person after having
made contact with him per cellphone.
They took D[....] with them.
When they met this person D[....]
positively indicated that this was not the person who removed the
deceased.
iii.
According to the witness B[....]2 made
contact with him in the township during a meeting of residents
organised by the Station Commander.
B[....]2 told him that Bonki was a male
nurse of Botshabelo.
At
that stage they found the other child that had played with the
deceased on the Sunday, to wit O[....], who was attending school
earlier that morning.
Enquiries
were made and O[....] told them that the deceased went away with
Bonki and that he was working as a nurse in Botshabelo.
They requested B[....]2 to take them to
Bonki’s home.
On
arrival they met three women who confirmed that Bonki was working in
Botshabelo, but that he was staying in a place of his own
and not at
his parental home anymore.
The
witness and colleagues went to that address where they found the gate
closed and no one at home.
This
was just after 18h00 that evening.
According to their information the
accused normally arrived home at 19h00.
They decided to get something to eat and
waited in the street some distance from the accused’s
residence.
iv.
After some time the accused arrived with
a female and when he opened his gate, they approached him, introduced
themselves and informed
him about the reasons of their visit.
The accused confirmed that he knew the
deceased and that he had heard over the radio that she went missing.
The accused confirmed seeing the
deceased playing with other children in the street on the particular
Sunday afternoon when he went
to B[....]2’s home to “buy
sex”. B[....]2 told him that the “coast was not clear”
and that he had
to come back later.
Thereafter he went home.
v.
The accused granted leave to SAPS to
search his premises. He led SAPS members in the direction of his
room, but whilst they were
walking in that direction, the witness
decided to proceed to the toilet inside the yard.
Upon his arrival he opened the door of
the pit toilet, switched on his torch and looked inside the pit.
After a while he noticed a small child’s
hand sticking out from the toilet waste and immediately alerted his
colleagues who
arrived at the scene with the accused.
He gave his torch to the accused and
asked him to indicate what he could see.
The accused took the torch and looked
whereupon he handed the torch back to the witness who asked him what
he had seen.
The
accused said “I saw something what you said I must see.”
This was a strange answer as the witness
did not tell the accused what to look for.
Contrary to the witness that had to
scrutinise the area in the pit toilet earlier to eventually notice
the human hand, the accused
immediately observed the part of the
child’s body sticking out.
The
witness’ impression was that the accused was not even
surprised.
vi.
The witness examined the shack on the
premises, but found that nobody was staying there.
Also, the accused indicated to SAPS that
the left hand door as depicted on the photos, led to a different
room, but that nobody
was staying there as the person merely left his
furniture there.
vii.
The accused’s rights were
explained to him and it was communicated to him that he was regarded
as a suspect and that they
were going to arrest him.
Members of the Local Criminal Record
Centre (“LCRC”) were contacted to take photographs and
the witness and his colleagues
waited on the scene until their
arrival.
The
witness identified the inside of the accused’s room with
clothing lying on the floor which were later placed in forensic
exhibit bags.
He
also explained the nature of the premises, the gate and the barbed
wire fence and the deduction that the pit toilet was probably
only
used by the accused and whoever visited him from time to time.
The witness also explained that the
residential address in the indictment, to wit 416 B[....] 2, T[....]
N[....]2 which the accused
gave to the SAPS, is the same address
referred to as house 7793 Zone 2, T[....] N[....]2 where the accused
was staying and the
deceased found.
viii.
During cross-examination the witness
indicated that the clothing pointed out to be photographed by the
LCRC were found by him in
the washing basket inside accused’s
house.
It
was apparent to him that the clothing in the wardrobe were still
clean and not used, contrary to those found in the washing basket.
ix.
It was put to the witness that he never
gave the torch to the accused to look into the pit toilet and this
was also not mentioned
in his statement which was also proved and
handed in as exhibit “G”.
The witness reiterated that he did in
fact give the torch to the accused, otherwise he would not be able to
see anything in the
darkness. The accused denied the witness’
version as to the conversation or lack thereof when the pit toilet
was inspected.
It
was also put to the witness that his legal representative would argue
that the accused’s version should be accepted above
that of the
witness, bearing in mind the contradictions between the witness’s
written statement and his testimony in court.
The witness mentioned that his version
in court and written statement were the same and repeated that the
accused
saw
the
deceased’s
body
in
the
pit
toilet
after
he
was handed the torch.
x.
This witness was also called back at the
request of Mr Buys and with leave of the court for certain statements
to be made to him.
The witness stated that they went to Botshabelo as
D[....] had indicated that one of the male persons that visited
B[....]2 that
Sunday evening was from there.
His version differs from that of
B[....]2 who said that SAPS visited her that Thursday.
According to the witness B[....]2 came
to him during the meeting with the public on that Thursday and told
him that the suspect
was a nurse working in Botshabelo.
xi.
A totally new version was put to the
witness as to what transpired when SAPS arrived at the accused’s
place on Thursday evening.
The version as to how the accused looked
into the toilet over the shoulder of the witness was denied and
properly explained.
The
witness also denied that the accused told him about his alibi,
Shadrack Moshodi, with whom he was at Kiddo’s tavern during
Sunday.
He
insisted that if he was informed about the alibi, he would have
followed it up with the person. He repeated that the accused
told him
that when he left B[....]2, he went home.
The previous counsel, Mr Mazibuko at no
stage mentioned anything about an alibi to the witness.
8.5
The next witness of the State was
D[....] J[....]
,
a six-year-old boy.
i.
He gave his evidence through an
intermediary, Mr ZA Nyenzane, an experienced and qualified
intermediary in the employ of the Department
of Justice and
Constitutional Development.
The
intermediary was properly sworn in. After some lengthy questioning by
me I was eventually satisfied that the witness understood
the
difference between the truth and a lie.
He was cautioned to speak the truth.
He was visiting his grandmother M[....]3
during July 2019. M[....]3 was also the deceased’s grandmother.
The deceased stayed with her. He
testified that children were playing outside and near B[....]2’s
place. When asked whether
he knew what happened to the deceased, he
confirmed, but upon further questioning to explain, he indicated in
the negative, the
reason being that his grandmother had allegedly
informed him not to tell people.
At
that stage he looked restless and upon a question by the prosecutor
confirmed that he was getting tired.
I
adjourned for a while. Later he testified that he and the deceased
were playing in the street when “they took her away”.
Initially he did not want to explain who
“they” were, looked down and then eventually said that
Bonki was the person.
According to him Bonki was staying at his
mother’s neighbour. Bonki was alone and he did not know where
the deceased was
taken. After further questioning he indicated that
the deceased had told him that they were going to the shop to buy
sweets. Bonki
told him to stay behind.
This was the last time that he saw the
deceased. He always saw Bonki at Ona’s place, it being a
“drinking place”.
ii.
During cross-examination the witness
indicated that his mother was staying at G[....] 2 in T[....]2, a
neighbouring town. He used
to see Bonki in T[....]2. I must comment
at this stage already that the witness was quite confused in his
evidence.
He
confirmed that his grandmother told him not to tell anyone, but
immediately thereafter he stated that he had been informed by
his
aunt, Asempi, that Bonki had taken the deceased away. Eventually he
repeated that he used to see Bonki at Ona’s place
in T[....]
N[....]2.
According
to him O[....] also saw Bonki taking the deceased away.
He confirmed telling the deceased’s
mother that Bonki had taken the deceased away.
8.6
The State’s sixth witness was
Warrant Officer Phokela Mogashoa
,
a forensic expert employed at the Biology section of the Forensic
Science Laboratory in Pretoria.
i.
He did two DNA analyses and confirmed
during his testimony the correctness of two affidavits prepared by
him in terms of
s 212
of the CPA, the first dated 31 March 2020 and
the second 13 August 2020.
These
affidavits were accepted as exhibits “H” and “J”
respectively.
ii.
In his first analysis he made use of the
DNA analysis system to do analyses on a panty and a reference sample
of Mrs MM C[....]
(the deceased’s mother).
It is not in dispute that the panty
belonged to the deceased as indicated earlier.
iii.
The witness found that maternity could
not be excluded as “alleles present within the DNA result of
the alleged mother…
occur within the DNA result of the donor
of the DNA on the panty…”
He
continued: “The alleged mother … has a 270 thousand
times greater chance of being the biological mother of the donor
of
the DNA on the panty …. than any other randomly chosen
individuals within the Black population group” and the
“probability of maternity is 99.99%.”
In
addition to the aforesaid results the witness also found mixture DNA
results from exhibit PW3000503578, but no analysis was done
at that
stage.
iv.
In the second analysis to which the
report handed in as exhibit “J” refers, the witness
analysed the following samples:
1.
The aforesaid panty,
2.
Pair of pants “C”,
3.
Jacket “D” (it is apparent
that this referred to the Adidas top),
4.
Pair of pants PW4001221428
(PAD001068054) (that of the deceased), and
5.
The reference sample of Mrs MM C[....]
referred to earlier.
v.
The pair of pants “C” is the
maroon Chino pants shown on photo 22 of exhibit “D” and
placed inside the forensic
bag as is evident from photo 23.
The jacket “D” (Adidas top)
is that of the accused found on the scene as is apparent from photo
24 which was contained
in the forensic bag as is evident from photo
25.
The
next pair of pants (item 4 referred to above), belonged to the
deceased as
inter alia
shown
in photos 3, 4, 5 of exhibit “D” and placed inside the
forensic bag depicted in photo 9.
vi.
Paragraphs 4.1 – 4.5 of the
witness’ second report are repetition of the paragraphs in the
first report.
However,
paragraphs 4.6 – 4.8.1 were added in the second report and the
results confirmed in the evidence.
In
terms hereof “the DNA result of the panty … is read into
the mixture DNA result obtained from the pair of pants
“C””
(the maroon Chino pants) and “the most conservative occurrence
for the DNA result obtained from the
pair of pants … for all
the possible contributors to the mixture DNA result is 1 in 6 billion
people.”
He
continued: “The DNA result of the panty, is read into the
mixture DNA result obtained from the jacket “D” and
the
most conservative occurrence for the DNA result obtained from the
jacket “D” for all the possible contributors
to the
mixture DNA result is 1 in 17 million people.”
The analysis in respect of the DNA
result of the panty and that of the mixture DNA result of the
deceased’s pants shows a
result of 1 in 12 trillion people.
vii.
Pertaining to the second analysis the
witness explained that when one deals with mixture DNA results, both
figures/numbers - in
this case in respect of the panty and the
reference sample of Mrs MM C[....] - should appear in the mixture DNA
result.
As
the witness has showed, this is indeed the case in respect of table 1
of his second report.
Consequently,
the witness concluded that the deceased’s DNS was found on the
maroon Chino trousers and Adidas top of the accused.
It is also evident that DNA of the
deceased was found on the pair of pants confirmed to be hers.
Although the witness testified
that the results showed that the
deceased was definitely in contact with the specific clothing items,
he pointed out that he was
dealing with “a low copy number”
in respect of the deceased.
viii.
The witness testified that reference
samples of the accused were received and analysed, but it was not
possible to read the DNA
results into any of the samples referred to.
He explained that there might be a
number of reasons for inconclusive DNA, for example:
1.
In high friction areas DNA gets rubbed
off easily;
2.
It can be difficult to get a proper
profile depending on the kind of samples;
3.
The
samples
could
have
been
stored
in
less
than
ideal
conditions; or
4.
The kind of fabric of the sample also
plays a role.
ix.
The witness explained that dry skin of a
person will easily rub off clothing and leaves the laboratory with no
DNA for testing purposes.
Contrary thereto, it is much easier to
obtain DNA results from sweat, blood, semen and saliva.
x.
As anticipated earlier in chambers, Mr
Mazibuko for the accused placed on record that he was not in a
position to cross-examine
the witness.
He and his attorney were in negotiations
to obtain the services of a forensic expert and it was the accused’s
intention to
have the samples retested.
Mrs Liebenberg had no objection to the
standing down of the witness and this obviously meant that the matter
would have to be postponed
eventually.
I
could not direct Mr Mazibuko to carry on with cross-examination as it
was apparent that the latest report of the witness was only
received
a day before the hearing.
xi.
On 9 May 2022 and about two years after
the witness’ testimony in chief, he was eventually
cross-examined by Mr Buys.
Before
that, Mrs Liebenberg asked permission to ask further questions to the
witness.
It
turned out that the witness referred to another report from a DNA
expert which was handed in as Exhibit “M”’.
According to this report by Captain
Masetla, dated 25 September 2019, no DNA
could
be
obtained
from
the
exhibits
provided
to
the
expert,
although a DNA result was obtained from the “Sweet”
(Track suit pants). The witness explained how touch DNA
was obtained
from the exhibits such as the maroon pants, the Adidas top and the
track suit pants of the deceased. The swabbing
process was explained.
xii.
The cross-examination followed.
No testing was done by the witness on
the sexual assault kit and although he explained in general terms why
DNA was not detected,
he conceded that he could not say if a
discharge was found or proof of any other activity. He explained that
several reasons can
be provided for major and minor contributions of
DNA on an item.
He
confirmed that they had a reference sample of the accused’s
DNA, but that “we could not read in the accused in any
of the
exhibits.”
This
applies to the accused’s clothing as well as all the other
exhibits.
xiii.
It appeared that the witness did not do
the swabbing of the clothes, but had to rely on someone else.
He could not say on what areas of the
clothing swabbing was done and by whom.
Therefore, he could not say from where
most of the DNA was lifted pertaining to the maroon pants and the
Adidas top in particular.
iv.
He did not want to concede that if there
was direct contact between the accused and the panty and tracksuit
pants of the deceased,
his DNA should have been found on these
exhibits and explained that the accused might not be a shedder (a
person that sheds DNA
easily) or he might have worn gloves.
v.
He disagreed with the version of the
accused’s expert put to him that because the deceased’s
DNA was found on the accused’s
clothing, it did not mean there
was direct contact between them.
He
therefore did not initially agree that indirect transfer could take
place. However, he eventually conceded that if the accused
used the
pit toilet without knowledge that the deceased’s DNA was
transferred
or
deposited
onto
the
wooden
toilet
seat,
such
DNA could be transferred to his
clothing.
In
fact, he answered that it was very possible.
8.7
Further admissions.
i.
On the morning of the third day,
Wednesday 19 August 2020, a document containing further admissions,
made and recorded as such in
terms of
s 220
of the CPA pertaining to
the chain of evidence, was handed in and accepted as exhibit “K”.
In terms hereof the samples referred to
in exhibits “H” and “J” were correctly
collected, packed, sealed,
sent and eventually received by the
laboratory and that the reference sample identified as being from MM
C[....], was obtained
from M[....] M[....]2 C[....], the mother of
the deceased.
8.8
The next witness who testified on behalf
of the State was O[....] M[....]4, a 7-year-old boy.
i.
He also testified through the
intermediary.
He
confirmed that he knew B[....]2 and that she hired a room at the back
of the house where he was staying.
He
knew the deceased and saw her the day that she disappeared.
The witness was initially totally
confused and went so far to say that he saw the accused throwing the
deceased in the pit toilet.
Later
on he said that he had heard it from D[....], his friend who
testified earlier.
After
being warned to testify only what he personally witnessed, his
evidence became clearer. According to him, he and D[....] were
playing soccer in the yard, whilst the deceased and Una played in the
street.
Bonki
came down the road, took the deceased’s hand and walked away
with her in the direction of the shop.
Upon leaving, Bonki told the deceased
that he was going to buy sweets.
The
two of them never came back. According to him and contrary to what he
initially said,
ie
that
he had seen the accused only once before the incident, he stated
later that he knew Bonki for a long time.
ii.
Mrs Liebenberg decided to arrange an
informal identity parade after the witness had indicated that he
would be able to identify
Bonki. The witness was brought from the
room where he was giving evidence into the court room.
At that stage there were nine male
persons present, excluding myself, the orderly and stenographer,
sitting in different positions
in the court room.
By then the accused had left the dock,
sitting next to it.
The
witness stood in front of the court, trying to identify Bonki, but
failed to do so by saying “he is not here”.
At that stage everybody was wearing
their masks.
I
requested the people to remove their masks to allow the witness to
have another look at the men.
Again
he said “he is not here”.
In
all fairness to the witness it should be recorded that the closest
people to him, to wit Mr Mazibuko and Mrs Liebenberg, were
about 4
meters away whilst some of the other gentlemen were as far as 8
meters from him.
iii.
It came as no surprise when Mr Mazibuko
decided not to cross- examine the witness.
8.9
The next witness was Constable MA
Masilo.
She
is a member of the FCS unit of the SAPS with 8 years’
experience.
i.
On 25 July 2019 at about 19h00 she
attended the scene at the accused’s house together with Captain
Phasiwe.
She
confirmed in essence what Captain Phasiwe said and I do not intend to
repeat her evidence.
Her
statement was also proved and handed in as exhibit “L”.
As is the case with the Captain, there
is also no reference in her witness statement to the handing over of
the torch to the accused
to look inside the pit toilet where the
deceased’s body was found.
She
reiterated, as Captain Phasiwe did, that her testimony in court was
the correct version.
She
also testified, contrary to the fact that it was not stated in her
statement, that the accused mentioned after looking into
the pit that
“he saw the thing the Captain wanted him to see.”
When she looked into the pit toilet by
making
use
of
the
torch,
she
saw
the
body
and
became
very
emotional and even cried.
She
followed the accused and Captain into the accused’s house.
At that stage the clothing appearing
from the photographs were already lying on the ground.
According to her the accused couldn’t
say what he was wearing during the previous weekend.
ii.
During cross-examination it was put to
the witness that the accused indicated which clothes he was wearing
over the weekend, but
she denied this.
She remained steadfast that he had
answered that he was not sure.
She
found the accused’s reaction when he observed the body of the
deceased strange insofar as he was not shocked, did not
get a fright
and did not even mention that he saw a child. When confronted with
her statement, she stated that all that information
came from Captain
Phasiwe’s statement but did not know how to explain when it was
put to her that even Captain Phasiwe did
not mention the specific
issues in his statement.
iii.
It was put to her that the accused was
never given a torch to look into the pit toilet, but she denied this.
It was also put to her that the accused
never responded to Captain Phasiwe as he and she testified, but she
stood her ground.
She
agreed that the accused had given his co-operation at all times
during their visit to his premises.
8.10
Dr John Mohai was also called to testify
notwithstanding the fact that his medico-legal
post-mortem
report was handed in by agreement as
exhibit “C.”
His
viva voce
evidence
does not take the matter any further and I shall not deal with that.
8.11
The owner of the premises where the
accused was renting, Mr SD Molelekwa, was called to testify during
May 2022.
His
evidence did not take the matter any further than can be viewed from
the photographs before the court.
He
admitted in cross-examination that access to his premises was easy,
either through the gate or the fence.
8.12
The photographer, Constable KL Sehularo,
also testified although the photographs taken by him were not in
contention.
He
explained that although the second album, Exhibit “E” is
dated 12 August 2020, photos 3 to 6 therein, showing the
clothing of
the deceased, were taken already on 24 July 2019.
He was not cross-examined.
8.13
The accused testified in his defence.
He also called a DNA expert, Dr I
Ferreira as well as his alibi, Mr Shadrack Moshodi.
The accused’s version is as
follows:
i.
He admitted renting the place where the
deceased’s body was found in the pit toilet.
Also, that he used to work as a nurse at
the Botshabelo hospital at the time.
He
knew the deceased’s mother with whom he grew up, as well as the
deceased.
According
to him B[....]2, whom he knows, is a prostitute.
He explained that he met her the
previous Saturday and that they agreed that he would visit her the
following Sunday at 4 o’clock.
ii.
On Sunday he left his home after 11
o’clock and went to Kiddo’s tavern where he stayed until
10 o’clock (22h00)
that night, save for three instances, to wit
when he went home at just after 2 o’clock to change his
clothing as it became
cold, arriving back at the tavern by 3 o’clock,
and during his two visits to B[....]2 at 4 o’clock and 8
o’clock
where he stayed for a few minutes each time.
On his version he went back to B[....]2
that evening at 8 o’clock as she requested him to do so.
On the first occasion he was aware of
children playing in B[....]2’s yard, but did not see the
deceased amongst them.
iii.
His alibi, Shadrack Moshodi arrived at
the tavern at half past 3.
He
was coming from a soccer match.
He
told Moshodi that he was going to visit B[....]2 quickly and returned
shortly thereafter, telling him that “it was a flop.”
At 8 o’clock he left again and
told Moshodi that B[....]2 requested him to return to her.
When he came back soon thereafter he
again reported to Moshodi that he “flopped again.” The
accused explained what transpired
in the tavern during the time that
he was there, referring also to playing pool.
When the tavern closed at 22h00 they
left and went to another tavern, Nice Night. He did not enter as he
was banned from the place.
Moshodi
went in and bought two quarts’ beers for them.
They left and parted ways soon
thereafter.
He
went to sleep after using the pit toilet.
iv.
The accused gave a detailed version of
his usage of the pit toilet during the next few days, always early
mornings when it was still
dark, or during the evenings.
When he merely needed to urinate, he did
not use the toilet.
v.
He only heard about a missing child on
Thursday when his sister informed him.
That day SAPS officers arrived at his
home.
There
is no reason to give a detailed description of his version.
This was put to the two SAPS witnesses
and as mentioned, his version differed from 2020 to 2022.
vi.
The accused was thoroughly
cross-examined by Mrs Liebenberg, an experienced lawyer.
Several of his explanations border on
the fanciful and must be accepted as improbable.
I do not intend to go into detail.
8.14
Dr Ferreira agreed in principle with the
results obtained by the State’s expert, W/O Mogashoa.
She is an experienced DNA expert with an
impressive CV.
Her
report was handed in as Exhibit “N”.
She testified
inter
alia
as follows and again I do not
intent to go into much detail, bearing in mind the concession by her
counterpart:
i.
Whereas the W/O referred to “low
copy number” in his evidence in chief, this term is also
referred to as “touch
DNA” or “trace DNA.”
These terms are interchangeable.
She also made the point that it is
unknown from which areas of the clothing the DNA samples were
collected.
ii.
In criticising the version of her
counterpart that the donor of the particular DNA profile was at some
point in direct contact with
the accused’s clothing, she
pointed out that transfer can occur directly or indirectly.
If there was no direct contact, the
person on whose clothes the particular DNA was found – the
accused in this case –
will have to explain how he believes the
DNA was transferred.
iii.
She also confirmed that the deceased’s
DNA was the major contributor to the mixture DNA found on the
accused’s clothes.
iv.
Finally, on questions by the court about
the three scenarios that may cause transfer of DNA onto items such as
the accused’s
clothing, she made it clear that even the third
scenario – the transfer from the deceased to the toilet seat
and from there
onto the accused’s clothing - was probable,
although it might be less probable than direct contact as put to her
in respect
of the other scenarios.
8.15
Mr Moshodi’s version will not be
repeated as it is about a mirror image of that of the accused, save
for the following:
i.
He mentioned that his whole soccer team
went to Kiddo’s tavern after the soccer match and they sat in a
circle while enjoying
their drinks.
The
accused did not say anything about this.
ii.
He was present during the deceased’s
bail application.
iii.
They drank the beer that he bought at
Nice Night outside the tavern.
VI
LEGAL PRINCIPLES PERTAINING TO THE
EVALUATION OF EVIDENCE
[9]
In
assessing the evidence, a court must in the ultimate analysis look at
the evidence holistically in order to determine whether
the guilt of
the accused has been proved beyond reasonable doubt.
This
does not mean that the breaking down
of
the
evidence
in
its
component
parts
is
not
a
useful
aid
to
a
proper
evaluation and understanding thereof.
[1]
In
S
v Hadebe and Others
[2]
the
SCA approved of the following
dictum
:
“
But
in doing so, (breaking down the evidence in its component parts) 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. Doubts
about one aspect of the evidence led in the 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 from the trees.”
[10]
It
is acceptable in evaluating the evidence in its totality to consider
the inherent probabilities.
Heher
AJA (as he then was)
[3]
dealt
with this aspect as follows: “The
correct
approach
is
to
weigh
up
all
the
elements
which
point
towards
the
guilt
of
the
accused
against
all
those
which
are
indicative
of
his
innocence,
taking
proper
account
of
inherent strengths and weaknesses, probabilities and improbabilities
on both sides and, having done so, to decide whether the
balance
weighs so heavily in favour of the State as to exclude any reasonable
doubt about the accused’s guilt.”
In
this regard it is apposite to consider the evaluation of inherent
probabilities by the trial court as accepted by the Supreme
Court of
Appeal in
Magadla
v S
.
[4]
[11]
It
is trite that an accused’s version cannot be rejected merely
because it is improbable.
As
stated in
S
v Shackell
[5]
it
can only be rejected on the basis of the inherent probabilities if it
can be said to be so improbable that it cannot reasonably
possibly be
true.
[12]
In
Viveiros
v S
[6]
the
Supreme Court of Appeal stated that the need for caution cannot be
ignored in considering the evidence of young children and
proceeded
as follows:
"In
view of the nature of the charges and the age of the complainants it
is well to remind oneself at the outset that, whilst
there is no
statutory requirement that a child's evidence must be corroborated,
it has long been accepted that the evidence of
young children should
be treated with caution (
R v Manda
1951 (3) SA 158
(A) at 163C
[also reported at
[1951] 3 All SA 236
(A) – Ed];
Woji v
Santam Insurance Co Limited
1981 (1) SA 1020
(A) at 1028B–D);
and that the evidence in a particular case involving sexual
misconduct may call for a cautionary approach
(
S v J
1998 (2)
SA 984
(A) at 1009B [also reported at
[1998] 2 All SA 267
(A);
[1998]
JOL 2141
(A);
1998 (4) BCLR 424
(A) – Ed]). For reasons which
will presently emerge the present case is plainly one which calls for
caution."
[13]
In
Ntonga
and another v S
[7]
the
full bench approved of the following approach pertaining to child
witnesses who are also single witnesses articulated by Jones
J:
[8]
“
[7]
The first issue is the reliability of the evidence of the State,
which brings me to the defence argument that the
evidence is
insufficient because of the magistrate’s inadequate application
of the cautionary rule of evidence. The cautionary
rule came into
being because of
s 208
of the
Criminal Procedure Act 51 of 1977
which
provides that an accused person may be convicted on the single
evidence of a competent witness (which includes a child witness).
This is, of course, provided that the single evidence is good enough
to discharge the onus of proof of guilt beyond reasonable
doubt. In
an unreported decision in this court (
Dyira v S
, Eastern Cape
Division, Grahamstown, case No 222/07, 2 June 2009, paras 6 and 10).
I had occasion to comment that:
‘
(T)o
assist the courts in determining whether the onus is discharged, they
have developed a rule of practice that requires the evidence
of a
single witness to be approached with special caution (
R v Mokoena
I
1956 (3) SA 81
(A) at 85, 86). This means that the courts must
be alive to the danger of relying on the evidence of only one
witness, because
it cannot be checked against other evidence.
Similarly, the courts have developed a cautionary rule which is to be
applied to the
evidence of small children (
R v Manda
1951 (3)
SA 158
(A) at 162E-163E). The courts should be aware of the danger of
accepting the evidence of a little child because of potential
unreliability
or untrustworthiness, as a result of lack of judgment,
immaturity, inexperience, imaginativeness, susceptibility to
influence and
suggestion, and the beguiling capacity of a child to
convince itself of the truth of a statement which may not be true or
entirely
true, particularly where the allegation is of sexual
misconduct, which is normally beyond the experience of small children
who
cannot be expected to have an understanding of the physical,
social and moral implications of sexual activity (
S v Viveiros
[2000] 2 All SA 86
(SCA) para 2). Here, more than one cautionary
rule applies to the complainant as a witness. She is both a single
witness and a
child witness. In such a case the court must have
proper regard to the danger of an uncritical acceptance of the
evidence of both
a single witness and a child witness (Schmidt
Law
of Evidence
4-7).
Our
courts have laid down certain general guidelines which are of
assistance when warning themselves of the danger of relying upon
a
single witness who is also a child witness. In the ordinary course:
(a)
a court will articulate the warning in
the judgment, and also the reasons for the need for caution in
general, and with reference
to the particular circumstances of the
case;
(b)
a court will examine the evidence in
order to satisfy itself that the evidence given by the witness is
clear and substantially satisfactory
in all material respects
;
(c)
although corroboration is not a
prerequisite for a conviction, a court will sometimes, in appropriate
circumstances, seek corroboration
which implicates the accused before
it will convict beyond reasonable doubt
;
(d)
failing corroboration, a court will look
for some feature in the evidence which gives the implication by a
single child witness
enough of a hallmark of trustworthiness to
reduce substantially the risk of a wrong reliance upon her evidence
(
S v Artman
1968
(3) SA 339
(A) at 340H).’
[8]
The cautionary rule is a rule of practice, not a rule of law, to be
applied in the
light of the warning of Holmes JA in the
Artman
judgment cited above at 341C, that –
‘
while
there is always need for caution in such cases, the ultimate
requirement is proof
beyond
reasonable doubt; and courts must guard against their reasoning
tending to become stifled by formalism. In other words, the
exercise
of caution must not be allowed to displace the exercise of common
sense; . . ’
There
are cases where the evidence of a single child witness has been found
to be clear and satisfactory in every material respect,
and hence
sufficient for proof beyond reasonable doubt, without corroboration
implicating the accused or without some additional
hallmark of
trustworthiness, other than the inherent value of the child’s
evidence itself (
Director of Public Prosecutions v S
2000
(2)
SA 711 (T)). What is always necessary is that the evidence of a
single child witness is evaluated with a full appreciation
of the
dangers of an uncritical reliance upon it.”
[14]
In
Stevens
v S
[9]
the
Supreme Court of Appeal cautioned as follows:
"Courts
in civil or criminal cases faced with the legitimate complaints of
persons who are victims of sexually inappropriate
behaviour are
obliged in terms of the Constitution to respond in a manner that
affords the appropriate redress and protection.
Vulnerable sections
of the community, who often fall prey to such behaviour, are entitled
to expect no less from the judiciary.
However, in considering whether
or not claims are justified, care should be taken to ensure that
evidentiary rules and procedural
safeguards are properly applied and
adhered to."
[15]
In
assessing circumstantial evidence a court should be careful not to
approach the evidence upon a piece-meal basis.
The
following well-known
dictum
of
Davis AJA in
R
v De Villiers
[10]
should
be adhered to:
“
The
Court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one so taken. It must carefully weigh the cumulative effect
of all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be drawn. To put the matter in another way; the
Crown must satisfy the Court,
not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond reasonable
doubt inconsistent with such
innocence.”
[16]
Zulman
AJA aptly referred to the following quotation in
S
v Reddy and Others:
[11]
“A
number of circumstances, each individually very slight, may so tally
with and confirm each other as to leave no room for
doubt of the fact
which they tend to establish…
..Not
to speak of greater numbers, even two articles of circumstantial
evidence, though each taken by itself weigh but as a feather,
join
them together, you will find them pressing on a delinquent with the
weight of a mill-stone…”
[17]
In
S
v Boesak
[12]
the
court dealt with the trite legal principle that the “State is
not required to plug every loophole, counter every speculative
argument and parry every defence which can
be
conceived by imaginative
counsel
without a scrap
of
evidence
to
substantiate
it.”
The
court also reiterated the well-known principle
[13]
that
the “cross- examiner should put his defence on each and every
aspect which he wishes to place in issue, explicitly and
unambiguously, to the witness implicating his client.
A
criminal trial is not a game of catch- as-catch-can, nor should it be
turned into a forensic ambush”.
It
should not be countenanced that the credibility of a witness be
attacked based on speculation and without cross-examination of
the
witness on pertinent issues.
[18]
It
is necessary to deal briefly with DNA analysis.
Van
der Merwe AJA assessed DNA analyses of two experts in
S
v SB
[14]
and
in doing so relied on what he with respect correctly called the
“valuable assistance”
[15]
from the work of Prof Meintjies- Van der Walt.
[16]
Mr
Buys attached an article by the same author to his heads of argument.
The
learned judge confirmed the trite principle that the weight of expert
opinion and also conflicting opinions depends on the extent
to which
the opinions are founded on logical and cogent reasoning.
[17]
The
difference of opinion in that case does not apply
in
casu
,
but it is important to mention the following
dictum
as
I shall consider same in evaluating the evidence:
“
[23]
This brings into play the other evidence in a case. I cannot conceive
of a criminal case where there is absolutely no
other relevant
evidence or evidentiary material. This may range, from direct
eyewitness evidence implicating the accused, to circumstantial
evidence as mundane as the proximity of the home of the accused to
the scene of the crime. This may of course also include evidence
pointing to the innocence of the accused. In the final analysis this
evidence determines whether the guilt of the accused has been
proved
beyond reasonable doubt or not.”
[19]
In
Fitzgerald
v The Queen
[18]
the
court held on appeal in dealing with secondary transfer of trace DNA
that the appellant’s DNA could have been deposited
on the
didgeridoo which was left on the crime scene as a result of secondary
transfer. Consequently, the appeal succeeded and the
appellant was
acquitted insofar as the court held that it had not been established
beyond reasonable doubt that he was present
at the crime scene and
participated in the attack.
[20]
The accused relies on the testimony of
an alibi, but failed to mention this, either in his warning
statement, or his plea explanation,
or in statements to State
witnesses.
In
fact, the name of his witness was withheld and it was merely put to
B[....]2 that he went to the tavern with some friends.
What is the law about the right to
remain silent?
The
right to remain silent and the disclosure of an alibi defence were
thoroughly discussed and considered in
S
v Thebus and another
[2003] ZACC 12
;
2003 (6) SA 505
(CC) at 533 and further.
Moseneke
J held at paragraph 59 that: “A distinction may properly be
made between an inference of guilt from silence and a
credibility
finding connected with the election of an accused person to remain
silent.”
At
paragraph 67 the following was said:
“
The
late disclosure of an alibi is one of the factors to be taken into
account in evaluating the evidence of the alibi. Standing
alone it
does not justify an inference of guilt. Secondly, it is a factor
which is only taken into consideration in determining
the weight to
be placed on the evidence of the alibi.”
The
Court stated further at paragraph 68 and I quote:
“
The
failure to disclose an alibi timeously is therefore not a neutral
factor. It may have consequences and can legitimately be taken
into
account in evaluating the evidence as a whole.
In
deciding what, if any, those consequences are, it is relevant to have
regard to the evidence of the accused, taken together with
any
explanation offered by him or her for failing to disclose the alibi
timeously within the factual context of the evidence as
a whole.”
VII
EVALUATION OF THE EVIDENCE
[21]
I already thanked both legal
representatives for their detailed and well–prepared written
heads of argument.
I
considered these as well as their oral arguments carefully.
It is impossible to deal with each and
every submission in this judgment and the fact that I don’t
refer to particular submissions
should not be regarded as an omission
to consider these.
[22]
Several admissions were made and the
disputes to be considered are relatively few, to wit:
(a)
Did the accused take the deceased with
him on Sunday afternoon 21 July 2019, by removing her from the place
where she was playing
with other children in order to go and buy
sweets for her?
(b)
If so, did the accused have the consent
of the deceased’s mother to take her away?
(c)
Did the accused rape the deceased?
(d)
Did the accused murder the deceased?
(e)
Was DNA of the deceased found on the
maroon Chino pants and grey and white top of the accused and if so,
has an innocent explanation
been given for the presence thereof.
[23]
Mrs C[....], the deceased’s
mother, testified that she did not see the accused on the day that
her daughter went missing.
She
did not give any consent for anybody to remove her daughter from the
place where she was playing.
She
positively identified the clothing of the deceased and confirmed that
she personally dressed her that morning.
She testified that the accused had given
the deceased money from time to time in the past to buy sweets.
There is a question mark as to what was
actually conveyed to her by the children and precisely when.
If the report of D[....] to her was
clear as to the identity of the accused it would be easy to make
contact with him, bearing in
mind that they grew
up
together
and
his
parental
home
was
a
few
houses
further
down
the
street.
If
D[....]’s version was vague, I find it strange that she did not
interrogate any of the other children immediately.
I am not satisfied that D[....] was so
familiar with the accused as the witness wants the court to believe.
He stayed with his mother in T[....]2 at
the time and only visited his grandmother in T[....] N[....]2 for
about a month at that
stage.
The
accused was employed and worked at the Botshabelo hospital at the
time.
He
would not be that often in the vicinity for D[....] to really become
acquainted to him.
I
find it also disturbing that, if there was a search for the deceased
immediately, that B[....]2 and other neighbours were not
informed.
As pointed out herein, B[....]2 was at
home all time and by 20h00 she was in the company of her brother and
boyfriend, apparently
totally unaware that the deceased was missing.
If the witness was indeed alerted that
evening that the accused was the alleged perpetrator, I find it
highly and inherently improbable
that she did not go to the accused’s
parental home and confront whoever was in attendance.
I would have expected her to inform the
SAPS that same night, but this did not happen.
Mrs Liebenberg submitted that this
witness had no reason to falsely implicate the accused, but it must
be remembered that she received
a version and might have believed
subjectively that it was indeed the accused who killed her child.
[24]
The second witness, Ms M Tsokodibane
found the pair of shoes, panty and trousers which were positively
identified as that of the
deceased in her yard.
On instructions of her grandfather she
threw the clothing over the trees just next to the street running
past their house.
She
also identified the clothing as depicted in the photographs.
Her version was not challenged.
It is unclear whether the deceased’s
clothes were removed at this site and left there or whether the
perpetrator raped and
killed the deceased at a different spot and
dropped the clothes at the witness’ property which is situated
a few houses from
the pit toilet.
[25]
The third witness, Ms Sebetlela, also
referred to as B[....]2, confirmed that the accused visited her
during the late afternoon
of Sunday, 21 July 2019.
At that stage he was wearing maroon
Chino trousers as well as Carvella shoes and a grey and white Adidas
sweater top.
He
proposed sexual intercourse with her, but she declined.
Later on that evening he came back at
which stage her brother and boyfriend were home as well.
This time the accused was wearing the
same sweater top, but red short-sleeve pants.
The maroon Chino pants, the red
short-sleeve pants and the grey and white Adidas top were amongst the
clothing taken out of the
washing basket by Captain Phasiwe when they
visited the accused’s house.
The
Carvella shoes are also visible on the photos.
The following aspects in her evidence
bother me.
Firstly,
the witness mentioned in her statement that she did not go to Bonki’s
place as promised.
In
her
viva voce
evidence
she denied having said so to the SAPS officer who took down her
statement.
Where
would the SAPS officer get this information from, unless she admitted
that she was a prostitute and/or prepared to have sex
with the
accused?
Secondly,
according to her statement the accused was wearing the same clothes
when he returned to her house later that evening.
In her testimony she said something
different.
Thirdly,
why would she want to deny that she was prepared to have sex with
accused.
What
must I do about these contradictions?
The witness tried to convey that the
statement was written in English, that she had a discussion with the
police officer in Sesotho
and after he had written down the
statement, he explained the contents thereof in Sesotho.
According to her statement the accused
was wearing “an orange or maroon trouser which he was still
wearing during the day.”
It
is ironical that the short sleeve pants are red/orange in colour
whilst the pair of Chino pants are in fact maroon in colour.
The
possibility of a misunderstanding between her and the SAPS officer
may perhaps not be excluded, even though the statement was
taken down
a mere six days after the event.
It
is apparent that the accused wore the same top on both occasions.
[26]
There are improbabilities in B[....]2’s
version, but a major concern is the following. Why would the accused
return to her
house – which he confirms as well - if he was the
perpetrator that had taken the deceased away earlier, well-knowing
that
the family would be searching for her?
If he had already raped and killed her
by then, he would on all probabilities not return to the place where
he had kidnapped her,
especially bearing in mind that the children
would have seen him removing the deceased and that the community
might be searching
for the deceased in that area.
If he had not executed his ugly deeds by
then, where would he have kept the deceased at that stage?
The witness’ testimony takes the
matter no further than to show that the accused was at her residence
twice that day.
Her
version also corroborates the accused’s version pertaining to
his usage of alcohol insofar as he was in possession of
a quart beer
bottle every time he visited her and was intoxicated to an
extent.
We also know that other male persons, and not only the accused,
visited her that afternoon and evening.
[27]
Captain Phasiwe’s version appears
to be truthful and probable.
I
do not agree with Mr Mazibuko’s submission that because the
witness differed from his statement in two respects, his evidence
should be rejected.
It
more often than not is experienced in criminal trials that witnesses
are required to testify in much more detail than contained
in their
witness statements.
In
fact, it occurs in about each and every criminal case. The issues
raised by a witness in testimony, after proper consultation
with the
prosecutor, often expands on the brief version contained in the
witness statement taken down by SAPS.
On
all probabilities the witness would have requested the accused to
also look into the pit toilet to see for himself what was detected.
The same would be the case with the
other SAPS officers present.
In
any event, even if there was no such a request by the witness, I
would have expected the owner of the house and pit toilet to
request
an opportunity to see for himself what caused the Captain to be so
upset. I accept the version of the witness that the
accused did not
show any signs of discomfort or unease when he noticed the body in
the pit toilet, but that may be a neutral factor.
People differ and
we often find apathy amongst individuals.
Also, I do not accept that the witness
was told by the accused about his alibi that night as put to him by
Mr Buys when he was called
back.
This
is clearly an afterthought by the accused.
The Captain’s version is
corroborated in all material respects by Constable Masilo and I am
also prepared to accept her version
to be true.
Both these witnesses made a favourable
impression on the court, notwithstanding the fact that they testified
in more detail than
set out in their witness statements and although
both deviated from their statements in respect of exactly the same
issues.
The
question to be considered is whether this is sufficient to eventually
convict the accused.
[28]
The testimony of the two minors, D[....]
and O[....], may be considered simultaneously.
They are the only alleged eyewitnesses
that can link the accused with the disappearance of the deceased.
Mrs Liebenberg did her best to convince
me to accept their versions, but conceded that their versions were
not beyond criticism.
I
was not impressed at all with their evidence and do not intend
to
repeat
their
versions
which
I
summarised
above.
I
had
difficulty
to establish whether they really knew
what it meant to speak the truth and whether they appreciated the
seriousness of the matter.
Saying
this, I accept that a court must be cautious not to adjudicate the
evidence of a child in the same manner than one would
have done in
the case of an adult.
I
have serious concerns about the veracity of their evidence and also
what they conveyed to the deceased’s mother as testified
to by
her.
The
possibility that they became aware of the rumours and/or that they
were told what to testify cannot be excluded.
The case law referred to earlier comes
to mind.
D[....]
even confirmed in cross- examination that his aunt Asempi told him to
say that Bongi took the deceased away. This is contrary
to his
earlier version that he told the deceased’s mother that Bonki
took the deceased.
The
evidence of young children like the two witnesses have the potential
to be unreliable as a result of
inter
alia,
lack of judgment,
imaginativeness and susceptibility to influence and suggestion.
I accept that they were playing with the
deceased and other children during Sunday afternoon, 21 July 2019.
I am not convinced that they either knew
the accused well enough to identify him as the perpetrator, or even
if that was the case,
that they actually saw him taking away the
deceased that afternoon. Neither of them gave a proper description
and/or name of the
perpetrator upon which the deceased’s mother
could have acted.
Strangely
enough, no other child could apparently be of assistance
ex
facie
the evidence, notwithstanding
the fact that several children were playing together.
[29]
Evidence about the identification of a
perpetrator should be dealt with caution, the reason being that it is
easy to make an honest
mistake.
This
is trite. According to the deceased’s mother it was established
between 17h00 and 18h00 that the deceased was missing.
There is no indication whether the sun
was still shining at the time.
Identification is often a contentious
issue.
In
casu
the children were apparently
playing when the deceased left them. There is evidence of other males
visiting at least B[....]2 at
the time.
We also know that the corner house was
also a drinking place. Identification becomes more relevant in
respect of child witnesses.
[30]
The accused did not play open cards with
the court.
He
relied on his right to remain silent as an excuse as to why he did
not refer to his alibi.
Then,
he went further and testified – only during cross-examination -
that he even told a police officer where he was the
particular
Sunday, in whose company he was and that the particular tavern was
fitted with video cameras and that footage should
be available.
This information was never revealed
until he eventually testified and the State was not given an
opportunity to investigate this
aspect.
It is trite that a party’s version
should be put to the other side as stated in
Boesak
supra
.
A criminal trial should not be turned
into a forensic ambush.
Even
if I find the version of the accused as improbable and/or false in
this regard, it might be insufficient under the circumstances
of this
case and against the background of the unacceptable evidence of, and
discrepancies in the versions of, the two child witnesses
to convict
the accused, also bearing in mind the other proven facts.
[31]
I am of the view that the accused and
his alibi discussed the events of the Sunday and that Mr Moshodi was
subjective and had sufficient
reason to present evidence favourable
for the accused.
It
is astonishing how much their versions correspond in respect of
detail.
It
cannot be forgotten that Mr Moshodi testified more than a month after
the accused presented his version and although it was denied
that
they had contact during this time, I doubt this.
In any event, they had ample time since
2020 when the trial started to come to an agreement what to say. As
mentioned in
Thebus supra,
the
late disclosure of an alibi is one of the factors to be taken into
account in evaluating the evidence of the alibi, but standing
alone
it does not justify an inference of guilt. The fact that the alibi
was disclosed at such a late stage must be considered
in light of the
accused’s explanations, but more importantly, in the factual
context of the evidence as a whole.
This
cannot raise the State’s case from the ashes.
However, to finally consider the matter
the expert evidence and the adjudication thereof becomes vital.
[32]
The two experts made concessions when
required to do so and both impressed me not only as experts in their
field, but also as objective
witnesses.
W/O Mogashoa conceded that the
deceased’s DNA could have been transferred or deposited to the
seat of the pit toilet and then
transferred or deposited onto the
accused’s clothing when he used the pit toilet.
In fact, he said it was “very
possible.” Dr Ferreira pointed out that transfer of a DNA
profile can be direct or indirect
and it is impossible to say from
the amount of DNA recovered whether it was deposited by direct or
indirect contact and that the
detection of a DNA profile on a surface
cannot be considered as proof of contact.
I put three scenarios to Dr Ferreira but
although she conceded that the first two was more probable, the third
scenario cannot be
excluded as it was probable as well.
This third scenario is the one presented
by the accused as his explanation how the deceased’s DNA
profile could be transferred
onto his clothing,
ie
the use of the pit toilet whilst
wearing his maroon chino pants and Adidas top.
I bear in mind that we deal with a
criminal case and that the test differs from the standard required in
civil cases. If one considers
that the deceased’s body, whilst
partly naked, had to be pushed through the hole in the wooden toilet
seat, there must be
a likelihood, and not only a faint possibility,
that her DNA would be transferred to the toilet seat and from there
to the accused’s
clothing.
Mrs
Liebenberg considered this and therefore, she suggested to the
accused that the toilet seat could easily be lifted in order
to
discard a body into the pit.
The
accused explained, and there is no contradictory evidence, that the
seat was fastened to the corrugated walls with screws.
[33]
It is also important to take cognisance
of the fact that the accused’s DNA was not found on the
clothing of the deceased,
to wit the panty and tracksuit pants.
If he raped her as alleged by the State,
the absence of his DNA is a material consideration in finding for the
State.
[34]
No doubt, save for the expert evidence
relating to the DNA analysis and the conclusions to be drawn, there
is other evidence to
be taken into consideration and as stated in
S
v SB supra
which may range from
“direct eyewitness evidence implicating the accused, to
circumstantial evidence as mundane as the proximity
of the home of
the accused to the scene of the crime. This may of course also
include evidence pointing to the innocence of the
accused. In the
final analysis this evidence determines whether the guilt of the
accused has been proved beyond reasonable doubt
or not.”
[35]
If the accused was the perpetrator, he
would know that the other children would have recognised him and it
is highly improbable
that he would in such circumstances deposit the
deceased’s body in his pit toilet, whilst he could have
discarded it in the
open veld next to the township where the SAPS
were searching eventually as testified, or some other place.
Furthermore, the fact that the
deceased’s clothing was discarded at a different location from
where the body was
hidden,
shows
calculated
conduct
of
the
perpetrator
to
avoid
being implicated with the crimes.
It is improbable that the accused, being
so calculated, would keep the clothes that he wore the Sunday when
the crimes were committed
on his premises. Mrs Liebenberg submitted
that the accused was the only person to tell the court what happened,
but he chose to
lie.
Therefore,
she submitted that the court cannot speculate and should convict him
as charged.
This
submission would be acceptable if the eyewitnesses’ version
could be accepted.
VIII
CONCLUSIONS
[36]
The DNA evidence cannot be conclusive to
prove the accused’s guilt.
In
any event the authorities quoted support the viewpoint expressed by
the accused’s expert and conceded by the State’s
expert.
The DNA evidence on its own is not
sufficient to establish the accused’s guilt.
[37]
There is no acceptable evidence of
eyewitnesses
in casu
.
The trite test for adjudicating
circumstantial evidence must be considered.
The inference that the accused is guilty
must be consistent with all the proven facts.
If not, the inference cannot be drawn.
The proven facts should be such that they exclude every reasonable
inference from them save
the one sought to be drawn, to wit that the
accused is guilty of the offences charged.
[38]
In casu
the
deceased’s body was found in the accused’s pit toilet and
the DNA analysis connects the accused’s clothes
to the
deceased’s DNA.
A
reasonably acceptable explanation was provided by the accused, backed
up by expert opinion.
Although
I mentioned improbabilities in the accused’s version and even
falseness in certain respects, and although fingers
are pointing
towards him, it cannot be said that his version as to what happened
on Sunday 21 July 2019 is so improbable that it
cannot reasonably
possibly be true.
Also,
the real evidence depicted in the photographs, corroborated by the
version of the accused and his landlord is clear: anybody
could gain
easy access to the premises.
In
my view, and after duly considering the test to be applied pertaining
to circumstantial evidence, and even considering the
dictum
in
Reddy
supra
, I am not in a position to
find that the guilt of the accused is the only inference that can
reasonably be drawn from the evidence
as a whole.
[39]
Consequently, the accused is entitled to
an acquittal.
IX
ORDER
[40]
The following order is issued:
The
accused is found not guilty and acquitted on all three counts.
JP
DAFFUE J
On
behalf of the
State: Adv
E Liebenberg
Instructed
by: DPP
Bloemfontein
On
behalf of the Accused: Adv
JJ Buys
Instructed
by:
WJB Attorneys
Bloemfontein
[1]
S v Shilakwe
2012 (1) SACR 16
(SCA) at p 20, par 11
[2]
1998 (1) SACR 422
(SCA) at 426f–h; also: S v Mbuli
2003 (1)
SACR 97
(SCA) at p 110, par 57; S v Van Aswegen 2001(2) SACR 97
(SCA) at p 101a-e and S v Trainor
2003 (1) SACR 35
(SCA) at p
40f-41c.
[3]
S v Chabalala
2003 (1) SACR 134
(SCA) par 15
[4]
80/2011
[2011] ZASCA 195
(16 November 2011) par 22 and further
[5]
2001 (2) SACR 185
(SCA) para 30
[6]
[2000] 2 All SA 86
(A) at par 2
[7]
[2013] 4 All SA 372
(ECG) at p 9
[8]
S v MG 2010 (2) SACR 66 (ECG)
[9]
[2005] 1 All SA 1
(SCA) par 1
[10]
1944 AD 493
at pp 508-9
[11]
1996(2) SACR 1 (A) at p 8i
[12]
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA) par 48
[13]
Ibid at par 50
[14]
2014 (1) SACR 66
(SCA); see also S v Nkwanyana KZP case no AR
108/16, a judgment delivered on 27 September 2016
[15]
Ibid para 7
[16]
DNA in the Courtroom: Principles and Practice (2010)
[17]
S v SB at para 19
[18]
An Australian High Court case,
[2014] HCA 28
(13 August 2014)