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[2021] ZALMPPHC 70
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S v Motong (CC61/2020) [2021] ZALMPPHC 70 (11 October 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NUMBER: CC61/2020
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
In
the matter between:
THE
STATE
And
KATLEGO
VINCENT MOTONG
ACCUSED
JUDGEMENT
KGANYAGO
J
[1]
The accused has been indicted on one count of murder read with the
provisions of section 51(1)
[1]
in that it is alleged that on 1
st
February 2019 the accused unlawfully and intentionally killed
Gobakwang Sylvia Mogajana an adult female person. The accused had
pleaded not guilty to the charge, and denied all the allegations
levelled against him and put the State to prove.
[2]
Admissions in terms of section 220 of the Criminal Procedure Act
[2]
(CPA) were made and admitted as evidence by consent between the State
and the defence. The 220 admissions read as follows:
“
1.The
deceased is the person mentioned in the indictment to wit Gobakwang
Sylvia Mogajana.
2.The deceased died on or
about 1
st
February 2019 at or near Leeukraal Location in
the district of Sekhukhune.
3.The deceased did not
sustain injuries from the time she was certified dead until
post-mortem examination was done on her body
on 7
th
February 2019.
4.Dr Olufemi Omotobora
conducted the post-mortem examination on the body of the deceased on
the 7
th
February 2019 and recorded his findings on the
post-mortem report number Lim/08/0013/2019.
5.The facts and findings
on the post-mortem examination report are correct.
6.The chief post mortem
findings on the body were:
i.Wide spread body
surface injuries including the scalp and face;
ii.Severe injuries on the
anterior and lateral aspects of the neck involving the soft tissues;
iii.Fractured ribs;
iv.Congested organs.
7.The cause of death of
the deceased is correctly recorded:
i.Blunt force trauma with
anterolateral neck congestion.”
[3]
The State called Anna Mogajana as its first witness. She testified
that the deceased Sylvia is
her daughter. On 31
st
January
2019 at about 15h00 a small boy came to her homestead and told the
deceased that someone was calling her. That boy did
mention the name
of the person that was calling the deceased. The deceased left with
that boy but did not tell anyone where she
was going. The time the
deceased left their homestead, the deceased was supposed to start
cooking for dinner. After she left she
never returned home.
[4]
The following day at around 6h00, the accused came to their homestead
to notify them that the
deceased was sick, and that she was having a
broken arm. The accused further told her that they must come to his
homestead
and collect the deceased. The witness instructed her
grandchild Happy to go with the accused to find out what was
happening. When
Happy came back from the accused homestead, she
reported to them that she found the deceased already dead. A few
minutes later
the accused brother in law came to her homestead to
notify them that the deceased had passed away.
[5]
They then went to the accused homestead, and on arrival they found
the deceased covered with a
blanket. When the witness checked the
deceased, she saw that she was having a wound on the right side of
her neck. When the witness
arrived at the scene, the police have
already arrived. Later the deceased was taken by the pathologist to
the mortuary. The witness
further stated that when the deceased left
their homestead, she was healthy and during the day she had been busy
doing laundry.
The witness was not cross examined by the defence
counsel.
[6]
The State called Mponeng Diago as its second witness. She testified
that she knows the accused
and that she is the accused neighbour. On
31
st
January 2019 at about 22h30 she was at her homestead
and the rain was drizzling. Whilst home at that time, the accused
called her
to come to his homestead. She went to the accused
homestead, and on arrival she met Phillemon Zulu the other neighbour
of the accused
leaving the accused homestead. She entered the accused
homestead through the kitchen door. On entering the house, she saw a
light
in complexion female person lying on the floor on her back as
if she had fallen. That female person was lying on top of broken
glasses.
[7]
The witness asked the accused the name of the female person, and he
told her that she was Sylvia.
She called the deceased by her name and
she opened her eyes. She asked the deceased what was the problem with
her, and the deceased
told her that she was seeing people calling
her. She asked the deceased whether she can be able to identify her
(witness), and
the deceased woke up sat down on her buttocks and told
her that she was the lady from next door.
[8]
The witness asked the accused why he was not taking the deceased to
her homestead as she might
be moving around with her unknown
sickness. The deceased responded and told the witness that she was
not going home. The accused
told the witness that the deceased had
soiled herself as if she was having a running stomach. The deceased
confirmed that she was
having a running stomach. The witness then
requested the accused to boil water so that they can bath the
deceased as the deceased
was complaining about feeling cold. After
the deceased was bathed, the witness left and went to her homestead.
[9]
The following day the 1
st
February 2019 at about 6h30, the
accused called her to come to his homestead. She told the accused
that she was still busy preparing
for her children to go to school
and that she will come when she was done. After the school children
have left, she went to the
accused homestead. On arrival at the
accused homestead she found two girls at a water tap holding the
deceased and pouring her
with water. When she asked the two girls why
they were pouring the deceased with water, the two girls told her
that the deceased
had fainted. She told the two girls to stop pouring
the deceased with water. The witness called the deceased by her name
but she
did not respond. The witness then told the two girls to take
the deceased into the house. When they entered the lapa carrying the
deceased, they deceased took a deep breath, and when the witness
checked the deceased eyes, she only saw the white bowl, and the
black
bowl was no longer appearing. She then remembered that when her
daughter passed away, her eyes looked like that.
[10]
The witness asked the two girls whether they have called an ambulance
and they said yes. Later the
paramedics arrived and they certified
the deceased dead on the scene. The paramedics advised them to call
the police. When the
police arrived, the witness had already left the
accused homestead and was at her homestead.
[11]
The witness was cross examined, and when asked what type of broken
bottles was the deceased lying on
top of them when she found her the
previous night, her response was that they looked like broken
glasses. The witness further said
that it looked like the deceased
had slipped and fell to top of the broken glasses as there were marks
which looked like a person
had slipped. The witness conceded that the
said broken glasses could have injured the deceased as she saw small
scratches on the
neck of the deceased, and also there was too much
blood that was coming from her wound. The witness further stated that
according
to her observation, the deceased was not assaulted as she
did not see any sign of assault even though she did not take off her
clothes. The witness further conceded that the scratches that appears
in the photos from the photo album, are the same scratches
that she
saw when she found the deceased lying on top of broken bottles. The
witness further testified that in the evening she
could not see the
marks that appears on the deceased legs from the photo album as the
deceased was wearing pyjamas.
[12]
The State called Catherine Malaka as its third witness. She testified
that she is the accused aunt.
On 1
st
February 2019 at
about 6h00 the accused came to her homestead to request her to go to
his homestead as his girlfriend Sylvia was
not feeling well. The
accused told her that he was still on his way to go and call the
deceased’s parents. She went to the
accused homestead.
[13]
On arrival at the accused homestead, she found the deceased lying on
a bed. She tried to woke up the
deceased and talk her, but the
deceased was not talking. The deceased was responding to the witness
by just nodding her head. The
witness stayed at the accused homestead
until the accused came back with two of the deceased relatives. On
the arrival of the accused
and the deceased relatives, they took out
the deceased out of the house and waited for the ambulance. When the
paramedics arrived,
they certified the deceased dead at the scene,
and the paramedics told them to call the police. The witness was
briefly cross examined
and she stated that when she arrived at the
accused homestead, she found blankets with faeces, faeces on the
floor and also signs
that someone has been vomiting.
[14]
The State called Dr Arnold Mamashela as its fourth and last witness
to testify about the post mortem
examination report prepared by Dr
Olufemi Omotobora. He placed his qualifications on record and that he
is qualified forensic pathologist.
He confirmed that he is not the
one who had prepared the post mortem examination report of the
deceased, and that he came to court
to assist with the interpretation
of the report to the court.
[15]
The witness confirmed that the post mortem report was that of the
deceased, and that the cause of death
has been recorded as blunt
force trauma with anterolateral neck congestion which might have been
caused by strangulation. That
when a person dies facing upward lying
on his/her back, there is the pulling of the blood that accumulates
at the back due to the
gravity, and that result in the deceased body
having what they refer as staining if a person lies in that position
for some time.
That the staining can be seen on the deceased body.
[16]
The witness was cross examined, and he stated that the incised wound
that the deceased had sustained
was less life threatening, and he
conceded that this wound might have been caused by broken glasses.
The witness further stated
that the deceased had broken ribs which
might have been caused by significant violent amount of force
applied. The witness further
testified that the injuries as they
appear on the deceased neck, might not have been sustained by the
deceased the previous night
at 22h00, as with the type of those
injuries, it was highly unlikely that a person would have survived
the whole night. The witness
further conceded that many inferences
can be drawn out of this incident, and further that it is possible
for a person to die from
seizure attacks. The witness conceded that
it was possible that the deceased might have sustained the injury on
her skull when
she was falling. That concluded the State evidence and
it closed its case.
[17]
The accused took the witness stand and testified under oath. He
testified that the deceased was his girlfriend.
On 31
st
January 2019 he invited the deceased to his homestead. He is staying
alone at his homestead. After the deceased accepted the invite,
he
went to collect her. He and the deceased used a maxi taxi to go to
his homestead. Whilst they were on the way to his homestead,
the
deceased was complaining about her arm that was shivering. They
arrived at his homestead around 18h00.
[18]
On arrival at his homestead, the deceased told her that she was
hungry. He invited the deceased that
they should prepare the meal
together, but the deceased told him that she will not be able to do
so as she was not feeling well.
He left the deceased in the lounge to
go and prepare the meal. As he was busy preparing the meal, the
deceased called him telling
him that she was not feeling well. He
gave the deceased water in a jug. As the deceased was holding that
jug, it fell to the floor
due to her shaking hand. The deceased asked
for mob to clean the floor and he gave her the mob. After that he
went back to the
kitchen to continue preparing the meal.
[19]
As he was in the kitchen, he heard a sound of something that was
falling. When he went to check, he
found that the deceased had fallen
on the stairs. The accused asked the deceased what was happening, and
the deceased told him
that it was a mistake. By then it was past
19h00. The deceased went to the bedroom to go and lie, whilst he went
back to the kitchen
to continue preparing the meal.
[20]
The accused went to the bedroom to go and check the deceased. On
arrival in the bedroom, he found that
the deceased had vomited and
had also soiled herself. He assisted the deceased to remove the
sheets and the deceased took off her
clothes and put on a gown. The
deceased went out of the house to get fresh air, and when she tried
to come back into the house,
she fell on her back at the stairs. He
assisted the deceased to come back into the house, and as he was
assisting her, the deceased
told her that she was not feeling well in
her stomach. As they were in the bedroom, the deceased asked him to
give her water. He
gave the deceased water in a glass and thereafter
went back to the kitchen.
[21]
Whilst in the kitchen, he heard a sound of a glass falling on the
floor. The accused saw the deceased
slipping and falling, and he got
scared and called his neighbour Phillemon Zulu. On arrival of Mr
Zulu, he told the accused to
call the other neighbour Ms Diago as she
was a woman. When Ms Diago arrived, she found the deceased lying to
top of the broken
glasses. After the arrival of Ms Diago, the rest of
the accused testimony corroborate that of Ms Diago. The accused
further stated
that before Ms Diago arrived, the deceased had already
fallen three times.
[22]
The accused further testified that after Ms Diago had left, he
continued preparing their meal, but
that the deceased did not eat
much as she told him that she was no longer hungry. After eating they
went to sleep and whilst sleeping
the deceased continued vomiting and
soiling herself and they had to change the bedroom and go and sleep
in another bedroom as they
one they were sleeping in was no longer
smelling nice. The accused gave the deceased his BVD to wear and they
went to go and sleep
in his sister’s bedroom. When they were
sleeping in his sister’s bedroom, the deceased again vomited
and also soiled
herself. The accused asked the deceased whether she
had eaten poison and she said she did not know but she will be fine.
She continued
vomiting throughout the night, and in the morning the
deceased told the accused that she was having a headache. The accused
went
to the shop to buy her panado tablets and an energy drink.
However, the deceased did not drink the energy drink, and the accused
decided to call her neighbour Ms Diago to come and assist him. Ms
Diago told the accused to call his aunt and the deceased parents
as
she was still busy preparing for her school children to go to school.
[23]
The accused went to call his aunt and the deceased parents. On the
way to the deceased parents, the
accused called Portia the deceased
friend, to accompany him to the deceased homestead. On arrival at the
deceased homestead, the
deceased mother told the accused to go with
her grandchild Happy. On arrival at his homestead, Happy and Portia
poured the deceased
with water and told the accused to call an
ambulance. The accused called an ambulance and later Ms Diago
arrived. At that point
in time the deceased was trying to talk to
Happy but could not talk, and was just shaking her head. Portia and
Happy took the deceased
to the water tap where they poured her with
water.
[24]
Eventually the paramedics arrived and certified the deceased dead at
the scene. The police arrived
but he was not arrested the same day.
He was arrested during May 2019 and on 11
th
May 2019 he
made a written police statement. He denied having assaulted,
strangling or killing the deceased. The accused stated
that the
deceased might have sustained those injuries when she was falling, as
she fell several times hard on the ceramic tiles.
[25]
The accused was briefly cross examined but nothing new came out. The
accused closed his case. Both
parties submitted their closing address
with the State submitting that its case is being based on
circumstantial evidence and that
the only inference to be drawn is
that the accused is the one who killed the deceased and should be
found guilty as charged. The
defence submitted that there are many
inferences to be drawn, and that Dr Mamashela has also conceded to
that, and therefore the
accused should be given the benefit of doubt,
and he be found not guilty and discharged.
[26]
It is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable
doubt and that a mere
preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard
of proof in a criminal
case, a court does not have to be convinced that every detail of an
accused version is true. If the accused
version is reasonably
possibly true in substance the court must decide the matter on the
acceptance of that version. Of course
it is permissible to test the
accused’s version against inherent probabilities. But it cannot
be rejected merely because
it is improbable; it can only be rejected
on the basis of inherent probabilities if it can be said to be so
improbable that it
cannot reasonably possibly be true. (See
S
v Shackel
[3]
).
[27]
The State case is solely based on circumstantial evidence. In
S
v Reddy
[4]
Zulman AJA said:
“
In assessing
circumstantial evidence one needs to be careful not to approach such
evidence upon a piece-meal basis and to subject
each individual piece
of evidence to a consideration of whether it excludes the reasonable
possibility that the explanation given
by the accused is true. The
evidence needs to be considered in its totality. It is only then that
one can apply the oft-quoted
dictum in R v Blom
1939 AD 188
at 202-3,
where reference is made to two cardinal rules of logic which cannot
be ignored. These are, firstly, that the inference
sought to be drawn
must be consistent with all the proved facts, secondly, the proved
facts should be such that they exclude every
reasonable inference
from them save the one sought to be drawn.”
[28]
According to the State version, the deceased died as a result of
being strangled by the accused. The
State is relying on the post
mortem examination report that was interpreted by Dr Mamashela as he
is not the pathologist that prepared
that report. Dr Mamashela was
called by the State to interprete the post mortem examination report
as the State was struggling
to secure the attendance of Dr Omotobora
the author of the report as it is alleged that he was now employed in
the Free State.
The evidence of the other two State witnesses Ms
Diago and Ms Malaka who at some stage were both at the scene of
crime, corroborate
the version of the accused. The evidence of the
first State witness is of little assistance to the court, even though
to some extend
it also corroborate the version of the accused in
relation to the accused reporting the sickness of the deceased to her
family
in the morning of the 1
st
February 2019 before the
deceased passed away.
[29]
The conclusion of Dr Omotobora is that the deceased died on 1
st
February 2019 as a result of blunt force trauma anterolateral neck
congestion which Dr Mamashela has explained that it means the
deceased was strangulated. What this entails is that the deceased
died as a result of strangulation. According to Dr Mamashela,
the
injuries sustained by the deceased and which were as a result of
strangulation, were fatal, and a person with those type of
injuries
would not have survived from 22h00 of the previous day until 6h30 of
the following day. The conclusion of Dr Mamashela
is that the
injuries on the deceased neck as the appear on the photo album and
also as recorded in the post mortem examination
report would not have
been inflicted during the night of the 31
st
January 2019
at 22h00.
[30]
However, Ms Diago the second State witness, has testified that on
31
st
January 2019 at 22h30 when called by the accused to
come and assist him, she did observe the scratches on the deceased
neck and
further that she did not observe any sign of assault on
deceased person. Ms Diago further testified that when she arrived at
the
deceased homestead, the deceased was unconscious, but that she
regained her consciousness and started talking in a coherent manner.
Further that Ms Diago requested the accused to take the deceased
home, and the accused was willing to do so, but it was the deceased
herself who refused to be taken home and she told both the accused
and Ms Diago that she will be fine. In my view, if indeed the
accused
had done something untoward to her, she would have jumped to the
offer and took advantage of being rescued.
[31]
Dr Mamashela has testified that with the type of the injuries which
the deceased had sustained, if
she did not die immediately, she would
have slipped in coma, and would never have regained her
consciousness, and if by miracle
she did regain her consciousness, it
would have been for a few minutes in which she would have been able
to talk and thereafter
slipped back into coma for good. However, in
the case hand the deceased was able to regain her consciousness,
talked in a coherent
manner, was bathed, and when Ms Diago left the
accused homestead she was still talking in a coherent manner, except
that she was
complaining that she was not feeling well. That in my
view, is not consistent with a person who had sustained injuries of
strangulation
referred to by Dr Mamashela.
[32]
There are uncontested evidence that during the evening of the 31
st
January 2019, the deceased was not feeling well, was having a running
stomach, was soiling herself and even failing. Dr Mamashela
did not
rule out the possibility that the injury on the deceased scull might
be as a result her falling. It has not been established
what caused
her fall, vomit and soiling of herself. Dr Mamashela has also
conceded that seizures can also be fatal. It has not
been established
whether the deceased had a history of seizures except for the
evidence of Ms Mogajane that on the date of the
incident the deceased
was healthy and had been doing laundry work. However, the mere fact
that the deceased was healthy on the
date of the incident does not
exclude the possibility that might have been suffering from other
types of illness.
[33]
Despite the post mortem report having identified the cause of death,
Dr Mamashela conceded that other inferences may
drawn as the cause of
the deceased death from this incident. Ms Diago testified that in the
morning of the 1
st
February 2019 when she arrived at the
accused homestead, she found two girls holding the deceased at the
water tap pouring the
deceased with water. These two girls are Happy
and Portia and are the second people to arrive at the scene after the
accused aunt,
and after their arrival, they were actively involved in
assisting the deceased. Happy and Portia were crucial witnesses who
might
have shared more light in this matter by assisting in telling
this court the condition in which they found the deceased and what
made them to pour her with water. Further Ms Mogajane testified that
when Happy came back from the accused homestead, she told
them that
she found the deceased already dead, whilst Ms Diago testified that
the deceased took her last breath whilst being carried
by Portia and
Happy, and further that Portia and Happy has told Ms Diago that the
deceased had fainted. The two witnesses in my
view, are the missing
link in this matter.
[34]
The State did not submit that the two witnesses were not available to
testify. The failure by the State to
call an available witness may
not be without consequences especially where the State relies on
circumstantial evidence. That failure
to call an available witness
may in particular circumstances justify the inference that, in the
prosecutor’s opinion, such
evidence might possibly give rise to
contradictions which could reflect adversely on the credibility and
reliability of the State
witnesses. (See
S
v Teixeira
[5]
).
Even though the Teixeira case relates to the evidence of a single
witness, I don’t find any reason why that principle should
also
not apply to circumstantial evidence as well.
[35]
If this court was to accept the evidence of Dr Mamashela in isolation
of the other evidence of the State
witnesses which corroborate the
version of the accused, this will be approaching the evidence in a
peace-meal approach, which courts
were warned in
S v Reddy
not
to do. The evidence of the accused was corroborated by three of the
State witnesses and this court cannot reject it on the
basis that it
is improbable. Taking the evidence presented in this case in its
totality, more than one inference may be drawn as
to what might have
caused the deceased death. Under the circumstances in my view, the
State has failed to proof its case against
the accused beyond
reasonable doubt. The accused is therefore given the benefit of
doubt.
[36]
In the result I make the following order:
36.1 The accused is found
not guilty and discharged.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the State
:Adv
Mthombeni LM
Instructed
by
:
Office of DPP Polokwane
Counsel
the accused
:
Mohlaka L
Instructed
by
:
Legal Aid of SA Polokwane Office
Date
heard
:
7
th
October 2021
Date
delivered
:
11
th
October 2021
[1]
Act
105
of 1997
[2]
51
of 1977
[3]
2001
(2) SACR 185
(SCA) at 194g-i
[4]
1996
(2) SACR 1
(A) at 8c-e
[5]
1980
(3) SA 755
(A) at 764A