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[2020] ZALMPPHC 63
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S v Mapoulo and Others (CC115/2019) [2020] ZALMPPHC 63 (6 June 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
PROVINCIAL DIVISION, POLOKWANE
CASE NO: CC115/2019
In the matter between
THE STATE
And
TF MAPOULO AND OTHERS
: ACCUSED
JUDGMENT
BEFORE MADAM
JUSTICE SEMENYA:
[1].The
six accused persons are appearing before this court or are indicted
on two charges. The first count is one of attempted
murder and
the second count is one of murder read with the provisions of Section
51 (1) and Part 1 of schedule 2 of the
Criminal Law Amendment Act 105
of 1997
. The accused pleaded not guilty to the charges and
raised a defence of alibi. It was placed as early as the plea
stage
that the contents of the post mortem report will be placed in
dispute. As well as the allegation that they acted in common
purpose. However, the identity of the deceased person in count
2, being Kwenaite Ronald, the date of death being the 29
th
day of January 2018 and the place of death were not placed in
dispute.
[2].They were
admitted in terms of
Section 220
of the
Criminal Procedure Act 51 of
1977
. The evidence that was presented by the state in an
endeavour to discharge its onus of proving the guilt of the accused
beyond
reasonable doubt is summarised as follows.
[3].Thabang
Clifford Mojapelo, who shall be referred to as Thabang for the
purposes of this judgement as he has been referred to
as such during
the presentation of the evidence testified that on the date of the
incident he was in the company of the deceased
in count 2.
[4].They boarded a
taxi at Blood river in the evening with the intention of proceeding
to their homes. Their place of residence
is at Ga-Mabilwane.
They had to alight this taxi at a village called Ditengteng so that
they can proceed on foot to their home.
Immediately after they
alighted this taxi at about 20:00 they came across a group of
people. He estimated the number thereof
as being about 18.
The group accosted them and told them that they do not like boys who
walk around within their villages
during the night. They told
them that the reason why they do not want boys to be loitering around
is because those boys steal
their plasmas. He and the deceased
tried to explain to them that they are not part of the boys who steal
plasmas and that
they had just alighted a taxi and that they are on
their way home.
[5].Despite
this explanation that group of people started to attack them with an
assortment of weapons. They were chopped with pangas
and slashers.
They were batons up with battens and pieces of wire. They were
also assaulted with bricks. The two sustained
multiple injuries
because of this attack. Immediately after they were so assaulted the
group of boys then took them to the bush
where they threw them into a
well.
[6].The
said well was full of water which covered their bodies up to their
necks. After they were thrown into that pit their
attackers lit
a tyre and put it on the mouth of the pit. They used the water
from the well to throw it at the fire, so that
it should not burn
them. They remained in that pit throughout the night. From
01:00
in
the early hours until they were rescued in the afternoon at about
14:00
.
They were transported to Knoble Hospital, where they were
hospitalised for a period of a week. They were thereafter
transferred to Polokwane provincial hospital, where he Mojapelo or
Thabang, was hospitalised for a period of about six weeks.
The
deceased died at the hospital. Thabang testified that he was
able to identify some members of the group, because there
were
electrical lights that were illuminating the streets through which
they were walking.
[7].That
those lights were very close to the street, as the houses too were
close to the street. There was also light from
one of the
vehicles which was at the scene. That the six accused arraigned
before me are part of the group that were attacking
them. He
testified that the accused were known to him prior the date of the
incident. Accused 1 is known to him as a taxi
driver and that
he used to also board his taxi. He also used to see him at
soccer matches in villages. Accused 2 is
also a taxi driver.
That he used to board his taxis coming from town. He played soccer
with accused 3 on a number of occasions.
He was once friends
with accused 4. They used to spend time together consuming
liquor. He also used to see accused
5 at soccer matches.
[8].Even
though accused no.5 was not one of the players he used to come and
spectate. He also knows accused 6 because he also
used to play
soccer with him. He also used to consume liquor together with
accused 6. He further testified that he
lost consciousness
immediately after he was rescued from the pit and regained it at the
hospital. He stated the manner in which
each of the six accused
participated in the attach on him and the deceased, meaning that they
were not mere spactators.
[9].That
police officers came to the hospital to obtain their statements. That
as they were in the process of giving information
to the police he
saw, he and the deceased saw accused 2 in this matter and they
alerted the police to his presence. They told the
police officers
that accused 2 is one of those who attacked them the previous night.
That when accused 2 became aware that
he and the deceased were
pointing at him alerting the police of his presence, he ran out of
the hospital.
[10].He could
not tell the police the names of all people who attacked him.
But that sometime after, some months after the
incident or during
those months he kept on visualising the incident in his sleep. He
will have some flashbacks regarding the scene
and during those
flashbacks he could see the accused before court. He testified,
sorry. He testified that he was unable
to give the police
officers a detailed statement when he was in hospital, because he was
in pain. He was traumatised by what happened
to him.
[11]. Also
because they came up whilst he was fast asleep and he was woken up so
that they can talk to him. He admitted during
cross-examination
that he had to leave the place, and went to Gauteng because he was
not feeling safe. He, it was put to
him that the, or rather the
version of the six accused was put to him during cross-examination
and he maintained his stance.
[12].He was
asked as to whether there were women amongst the group that attacked
them and he answered in the affirmative.
Saying that part of
the group consisted of women. When asked as to why there is no
women among the accused he stated that
he does not know those women.
He only knows those who he play soccer with and those whom he spent
some time with. He
maintained that all the six accused were
present and that they were part of the group that attacked them on
the date of the incident.
The attack
left them with multiple injuries. Malasela Charles Kwenaite,
the deceased’s father, testified that on the
20
th
of
January 2018
he received information from a person who
told him about the whereabouts of his son who is the deceased in this
matter.
[13].Acting
on the information he proceeded to the veld where he found a well as
well as ashes of a burned tire next to it.
He called out the
names of his son and the son responded. He could also sense
that the son was not alone as the other person
also responded. He
looked inside the pit and could see the head of the deceased and
Thabang. He contacted the police.
Assistance was sought
and the deceased and the accused were eventually removed from the pit
during the day. They were injured
and bleeding from their
injuries. He testified that the deceased died on the
29
th
day of January 2018
at Polokwane Hospital. Nare Robert Moloto
testified that he is employed at Knoble hospital as emergency care
officer. He
is part of the team that rescued the deceased and
Thabang from the pit. He transported the deceased to Knoble
Hospital where
he handed him over to the nurses.
[14].The
deceased was still alive and did not sustain any injuries during
transportation. The accused and the deceased in
this matter
were attended to by Lesetja Lesley Nong who is a doctor who was
stationed at Knoble Hospital as at the date of the
incident. As
well as by Dr Makwela Mashole Aphanisious. Dr Makwela testified
that he observed multiple legions on the
head, the eye and multiple
abrasions and bruises on the body of the deceased in this matter. Dr
Nong testified that when the deceased
was hospitalised at Knoble
Hospital he complicated, he developed cellulitis, which he said is an
infection of the skin on his leg.
He also developed renal
failure and because it was worsening they decided to transfer him to
Polokwane provincial hospital.
[15].Thuli
Monica Semetla testified that she is employed at Knoble Hospital as
part of the emergency services. That on the
26
th
day of January 2018
she transported the deceased to Polokwane
Provincial Hospital. She was informed that the deceased has
been assaulted.
She observed a swelling on his right leg and
ankle. She testified that the deceased did not sustain any further
injuries during
transportation until she handed him over to the
medical staff at Polokwane Provincial Hospital. Sergeant
Florence Concelia
Hlahla testified that she was the investigating
officer in this matter and that on the date on which the deceased and
Thabang were
admitted at hospital, she and Warrant officer Mampa
proceeded there in order to obtain their statements. She
confirmed that
during the process of obtaining the statements the
deceased and Thabang pointed at accused 2 and informed them that he
is part
of the people who attacked them. She further confirmed that
as the deceased and Thabang were pointing to accused 2 he became
aware
of that and he ran out of the hospital.
[16].The
statement of the deceased which was obtained by Warrant Officer Mampa
was admitted by consent. It is stated in the
statement that he
was with Thabang and that they were accosted by a group of people who
accused them of stealing plasmas. It is
further stated in the same
statement that the said group attacked them with stones, pangas and
sjamboks. Among the group
he identified Justice Makgotho, being
accused 2 in this matter. He also identified Mamashomo who is
accused 3. Lucky,
who is accused 4 and one Makwena. I
need to state at this stage that Thabang also mentioned the name of
Makwena in his statement.
It is further stated that after they were
so attacked they were taken to the field where they were thrown into
a pit of water.
[17].He was
rescued by paramedics. The post mortem examination on the body
of the deceased was conducted by Dr Matlala.
Dr Malegopo
Molegadi Matlala. She is employed as a forensic medical
pathologist. She confirmed the contents of the
post mortem
report that was handed in as EXHIBIT. She confirmed that the
cause of death is “Septic Shock due to septicaemia
due to left
leg cellulitis following multiple injuries due to alleged assault.”
She also noted on the post mortem report
the multiple injuries that
she observed on the body of the deceased.
[18]. There
were multiple bags on left groin. Bandages on left knee, right
knee and on forearm. There were intravenous
lines on right and
left groin. Intervenious lines on right arm. Lacerations
on right front of the right ear.
Abrasions on right frontal
area on side above right eyebrow. Abrasion on right eyebrow.
Laceration on right temporal
area above the right eye. Abrasion
below left eye. Open wound on back of the head. Healed
wound on left shoulder.
On left nipple extending to left subcostal
area. Abrasion on back of litexcilla. Timeline bruises
with rearing directionary
across the back. Bruising on tip of left
shoulder. Outer aspect of left chest. Purple blue
bruising on outer aspect
of the right arm. Abrasion on outer
aspect of the left hip. Sinus on left, on front of left knee.
Green
yellowish flued oozing. Multiple abrasions on the front of left
leg. Multiple abrasions on front right leg.
The skull was
Edo Thomas. Edo Multiuse on the scalp and contusions and
haematomas were observed.
The brain was Edo Multiuse. (Edo Multiuse?)
[19].On the
abdomen the doctor observed the following injuries. Peritoneal
cavity. Rather, not injuries. However
the doctor observed
the following on the abdomen. Peritoneal cavity there blood
stained fluid. The stomach and contents,
the stomach had green
fluid. The mucosal surface was smooth with no ulceration.Focal
area of gastritis. The intestines
were intact and
unremarkable. The liver, gallbladder and biliary passages were
enlarged and there was a yellow, rather it
was enlarge, soft, yellow
with nutmeg appearance. The pancreas were hemothorax. The
spleen was enlarged and soft.
The kidneys capsule striped of
easily and [indistinct] junction was congested. Urinary bladder
and urethra were normal.
The pelvic wall was intact and
unremarkable and the genital organs as well were intact and
unremarkable.
[20].The
doctor further testified that the septic shock was the end product
following inflectional lack of enough oxygen.
He further
testified that the bacteria that originated from the injuries that he
sustained went to other parts of the body. She
clarified the term
septicaemia as infection of the blood. She testified that
cellulitis is an infection of the skin underlying
the tissue of the
leg. She further testified that the multiple injuries that were
inflicted on the deceased resulted in complications
that resulted in
bacteria that in turn caused septicaemia and septic shock.
During cross-examination she was asked as to
what vasopressors are
and she indicated that she does not know where the question is
leading to and that it is related to drugs,
but that she is not
prepared to elaborate on that at that stage, as it is not relevant to
what she was testifying about.
[21].The
accused before court also elected to testify. Accused 1 in this
matter confirmed that he has been staying at Ditengteng
for some
time. He confirmed that he is a taxi driver of a taxi that
belongs to his family. He stated that on the date
of the
incident he was at work and returned home, from Polokwane to
Ditengteng at about
18:30
.
Rather he left Polokwane at about
18:30
with passengers and arrived at his home at
19:30
.
He did what he normally does. That is to hand over the money to
the family. He never left his home thereafter.
[22].He was
cross-examined at length about his alibi. He also called his
sister, Portia Tansa Hlabi to come and testify on
his behalf.
Portia confirmed that the accused arrived at home in the evening on
the date of the incident. That he returned
home at
20:00
. That
he went to bed at
21:30
after watching Muvhango. She
maintained that she could clearly remember what happened and that she
is relying on her good memory.
Accused 2 also testified.
[23].He also
confirmed that he is staying at Ditengteng and that he is a taxi
driver. He stated that he was on duty on the date
of the incident and
arrived home late. At about
19:45
he parked the taxi.
He stated that he did not hear any Sebata Kgomo. Sebata Kgomo
being a call for help by the community.
So that people can gather for
a common purpose. He only heard about it from the police when
he was arrested. He stated
that accused 5 is his neighbour.
That he saw him offloading a tyre from his home at around
20:20
.
[24].He
denied that he was at the scene of the incident when the assault on
the deceased and Thabang took place. It was put
to him during
cross-examination that his name was not mentioned by Thabang alone,
but that it does appear there in the statement
that was obtained from
the deceased in this matter.He confirmed that he was at the hospital
when Thabang and the deceased were
admitted and that he saw that they
were in the company of the police officers. He denied however
that he ran out of the hospital
when he realised that the deceased
and Thabang were pointing at him. Pointing in a manner in which they
wanted to bring the attention
of the police to him. He
testified that he and his mother went to the hospital to see his
uncle. That he went out of the
hospital when his mother asked him to
leave her alone with the uncle. Phuti Raymond Mokgotho also
testified. He is accused
2’s witness. He stated
that accused 2 was with them at home on the night of the incident.
[25].Accused
3 also testified. He, like accused 1 and 2 denied the
allegations levelled against him. He stated that
he was a
student at Wits University as at the date of the incident and he had
left his home earlier and went to Johannesburg in
order to arrange
accommodation. He returned after he was informed that the police were
looking for him. He was cross-examined
about the reasons why he
had left earlier, as, he stated in his testimony that the university
had not yet opened when he proceeded
there.
[26].Accused
4 also testified. He confirmed the version of Thabang that he is
staying at Ditengteng. He denied that he was
at the scene of
the incident. He also denied that he hit the deceased and
Thabang with a piece of wire. He stated that he
spent the night with
his girlfriend at his girlfriend’s home. The girlfriend
being Refilwe Matsemela. He denied
that he has been friends
with Thabang. But that they used to play soccer together. He
admitted that he knows Thabang from
the soccer field. He stated that
he is not the Makwena that the deceased referred to in the
statement. Matsemela being accused
4’s girlfriend also
testified. She stated that indeed she was with accused 4 on the
night of the incident and that
he never left until
05:00
.
It was put to her that her version is a regurgitation of the
testimony of accused 4.
[27]. Accused
5 also testified. He confirmed that his nick name is Twenty
which is the name that Thabang referred him by in
his testimony.
He stated that he is employed and was employed as at the date of the
incident. He denied that he was at the
scene of the incident and
further that he stated that he did not commit the offences that he is
charged with. He proceeded
to his place of employment on the
date of the incident. Leaving his home at
08:00
.
He knocked off at
17:50
. He slept before
20:00
.
He did not go to the street. He did not participate in the alleged
commission of the offences. He is from Ditengteng
and that as
far as he knows there is another person known as Twenty at
Ga-Manamela. He is not acquainted to Thabang. He denied
that he
chopped Thabang with a slasher as Thabang has testified and he also
denied that he assaulted the deceased. He testified
that there
is bad blood between him and Thabang, as Thabang had once stabbed his
brother with a knife. He was part of the
members of his family
who were sent to Thabang’s place in order to resolve the
issues.
[28].
Accused 6 also testified. He confirmed that he knows Thabang
from where they normally play football. He however
testified
that he did not see Thabang on the date of the incident. He was at a
shop watching a soccer match at the time that the
offence was
allegedly committed. He only left the place at closing time which was
at about
24:00
midnight. He testified that he is a soccer lover and he is fond
of watching soccer matches. I need to state at this stage
that all
the accused, except accused 5 who said that there were squabbles
between them because Thabang once stabbed his brother
stated, all of
them stated that they did not have grudges with Thabang. The defence
then closed its case.
[29].This is
a criminal case and the duty is on the state to prove the guilt of
the accused persons beyond a reasonable doubt.
It was stated in
S versus Chabalala 2003 (1)
South African Criminal Law
Reports, 134, Supreme Court of Appeal that:
“
In
the evaluation of the evidence before it the court must weigh the
elements that points to his guilt against the elements that
points to
his innocence. That the court must evaluate the strength and the
weaknesses of the case as well as the probabilities
and
improbabilities. It must decide at the end whether the balance
weighs heavily in favour of the state as to the accused.
If
there is a reasonable doubt in the mind of the court with regard to
the guilt of the accused the court must acquit him.”
[30].These
sentiments were raised earlier on in the case of
S
versus
Van Der Meyden 1999 (2)
South African Law Reports,
79,
(W)
and all other cases that followed it.
In short the
guilt of the accused must be determined according to the totality of
the evidence that has been presented before court
by the parties.
This is how the standard is determined in a criminal case. On
this basis I am therefore not prepared
or inclined to reduce the
standard of proof to minor instances such as whether the injury was
on the left leg or on the right leg,
on the ear or on the mouth, on
the lower lip or on the upper lip. I am not inclined to develop the
standard of proof to that level.
[31].The
reason why I do not want to reduce that standard of proof to that
level is because of the argument that was raised by the
defence with
regard to the disputed cause of death. It was stated that there is
evidence from other state witnesses who stated
that it is the right
leg that was injured. That if that is the case then the cause of
death as noted by the pathologist does not
link the accused to the
offence. This emanate from the cause of death where the pathologist
noted that the cause of death is septic
shock due to septicaemia due
to left leg cellulitis. Following multiple injuries due to alleged
assault. It is for that reason
that the state decided to call the
doctor, the pathologist who performed the post mortem report,
examination, so that she can come
and clarify what it means by what
is stated as the cause of death.
[32].She
summed up what she has recorded and what she has observed on the post
mortem as being that the deceased died as a result
of complications
that resulted from the injuries that he sustained on the date of the
incident. She stated that the body
had multiple bags of, rather
multiple bags on left groin and that there were bandages on the left
knee, right leg and on the forearm.
This in itself does not
rule out the evidence of the other witnesses to the effect that the
right leg was injured as well.
[33].The
observations made by Dr Matlala as per the post mortem report is
further in line with the evidence of Thabang. He
testified that
they were assaulted by a group of people with an assortment of
weapons. That they were attacked all over their bodies.
[34].I
therefore find the argument with regard to the cause of death to be
frivolous and I reject it on that basis. I am further
rejecting
this argument because, despite the fact that the accused stated from
the onset that they are disputing the cause of death,
they failed to
come up with any expert evidence.
Evidence in
the form of another doctor or pathologist who would testify to the
effect that the observations and the findings of
Dr Matlala should be
rejected. I am of the view that I will be neglecting my duties
as a judicial officer if I do not state
the following:
Our health system is overburdened. It is common knowledge that there
are shortages of medical practitioners in our public health
system.
That shortage must not be exacerbated by frivolous defences. I
am saying this because three doctors had to be taken
away from their
duties to come and testify in this case. I find that this was
unnecessary. Both the state and the defence
addressed the court
at the closure of the state case. The prosecutor prepared a
detailed heads of arguments to which I am
indebted.
I however do not agree with the prosecutor with
regard to the form of intention in this matter. He submitted
that the court
must find that there is intention in the form of
dollis eventualis
.
I am however of the view that the form of intention on the part of
the perpetrators of the offences in this matter is that
of
dollis
directus
.
Direct intention. This direct intention is
manifested by the conduct of the perpetrators. The deceased was
assaulted
over a long period with dangerous weapons, including
pangas, slashers, batons and bricks by a group of people. As if
that
was not enough the deceased and Thabang were removed from the
village to the veld.
[35].Upon
their arrival in the veld they were pushed into a well which was
filled with water. As if that too was not enough
a tyre was
burned and they closed the well with that burning tyre.
The nature of
the weapons used and the nature of the injuries that were inflicted
on the deceased in itself shows that whoever did
that to him wanted
to kill him. The perpetrators further decided that if he does
not die because of the injuries that we
have inflicted on you then
you will drown inside a pit.
The tyre
which was placed on top of the well was placed there to make sure
that the deceased and Thabang would not be able to escape
from the
pit. Intention is determined subjectively. It is further
determined by the conduct of the perpetrator as at
the time of the
perpetration of that offence.
[36].The
prosecutor submitted that the reason why he is saying that it is
dollis eventualis
is because the deceased did not die
immediately. He died later on at the hospital as a result of
septicaemia. There
is sufficient evidence that proves that that
septicaemia is a result of the injuries that were inflicted on the
deceased on the
date of the incident.
[37].I
therefore find that the date of death is irrelevant with regard to
the determination of the intention of an accused person.
I
conclude that the intention that is applicable in this matter is that
of
dollis directus
. Direct intention to kill.
Apart from
denying that they have caused the death of the deceased in this
matter the accused also raised a defence of alibi.
An accused
person who raises the defence of alibi in essence puts the identity
in dispute.
[38].It
is trite that evidence of identity must be approached by the courts
with caution. This was well enunciated in the
case of
S
versus Motetwa
1972 (3) SA 766
(A).
It
is evident that the
State in this
matter is relying on single evidence in the form of Thabang
Mojapelo.
[39].An
accused person in terms of
Section 208
of the
Criminal Procedure Act
51 of 1977
can be convicted on single evidence. It is
however trite that the evidence of a single witness must also be
approached
by the courts with caution. Cautionary rule therefore
applies because of two instances in this case.
It cannot be
denied that the events of the date of the incident were very
traumatic. The injuries that were inflicted on the deceased
and
Thabang also must have been a very painful.
[40].The deceased died and
Thabang came very, very close to death. Thabang and the deceased
spend quite a considerable time inside
the water which came up to
their neck during the night from
01:00
to
14:00
about
12 hours. They kept each other afloat at the same time having to
throw the water at the fire so that it should not burn them.
[41].It is actually in my
view a miracle that they survived the ordeal up to that stage. The
water was also cold according to Thabang.
The reason why I am stating
this is because the defence argued that I should reject the version
of Thabang mainly on the part of
the identity of the accused because
he only mentioned a few at the hospital and mentioned other later,
long after the incident.
I gave that background to have a clear
picture of what must have been going on in the mind of Thabang when
he made the first statement
to the Investigating Officer. I also want
to put, in a proper perspective Thabang’s explanation that he
spends sleepless
nights long after the incident and that during those
sleepless nights he will have flashbacks of the events of the
20
January 2018
.
[42].It cannot be denied
that anyone who has gone through that kind of trauma will have
flashbacks. I cannot even say at this stage
that I believe that he
has overcome the trauma. The ordeal that he went through on that day
is something that no one will ever
overcome.
I therefore accept the
explanation that Thabang has given regarding the circumstances under
which he identified the accused persons
and told the police officer
about them. I am unable to reject that explanation. I accept it as a
reasonable explanation.That explanation
is further supported by the
version of the Investigating Officer who testified that: not only did
he come to her to tell her about
the identity of his attackers he
went further to take her to their homes. Some of them were found and
in other homes, messages
were left and as a result of those messages
some of the accused handed themselves over to the police.
[43].I also accept this
version on the basis that to a certain extent it is consistant with
what the deceased has stated in his
statement. Accused 1, 3 and 4’s
names appear in that statement which was admitted by consent.Thabang
is a single witness
however in
S v Sauls & Others
1981 (3) SA
172
(A)
180 (f) to (g)
the court stressed the need to
avoid rejecting the evidence of a single witness simply because he is
a single witness. The court
further stated that:
“
Courts must avoid doing away with the application of common
sense in its application of cautionary rule; it must not do away with
applying common sense.”
I further accept the
version of Thabang on the basis that the accused admitted that: they
are known to each other. Some admitted
that they are part of the
soccer either as players or spectators.
[44].It was stated in
S
v Mthethwa
1972 (2) SA 766
(A)
the Judge in that case warns that
the
“
courts must approach
the evidence of identity with caution mainly because of the
fallibility of human observation
”
.
The court gave certain
guidelines in the application of that caution. However, those
guidelines are not meant to be exhaustive.
The Court were guided to
look at the ability of the witness identifying witness to observe the
perpetrators. That, that observation
will be guided by how visible
the place is.
[45].The proximity between
the identifying witness and the accused being identified. This
proximity refers to the distance between
the identifying witness and
the person that he is identifying. Another fact that the court is
warned to look at in Mthethwa is
the period of time that the
identifying witness spend with a person that he or she will be
identified.
[46].The evidence of
Thabang is to the effect that: he alighted the taxi at the periphery
of the village. That they intended to
walk through the village of
Ditengteng in order to go to their village. That as a result of the
confrontation with the accused,
the accused walked with them through
that village up until they reached the edge of that village and they
joined the field.
[47].His ability to
identify the attackers was challenged during cross-examination mainly
on the reason that it was during the night.
It was put to him that:
there was no sufficient visibility through which he could see his
attackers. He responded by saying that:
the streets are narrow and
the houses are on the edge of the street and that electric lights
emanating from those houses illuminated
the streets.The version
regarding the position of the houses in relation to the street was
disputed during cross-examination. There
was even a suggestion at
some stage that the court must go for an inspection
in loco.
However, after an adjournment the defence conceded that: the version
is true that the houses are very close to the street and that
there
are lights which illuminate the streets.
[48].I am therefore
satisfied that there was sufficient illumination and that that
illumination enabled the witness to identify
some of his attackers.
Thabang testified that: they were in the village with the attackers
from 21:00 up to 01:00 when they left
the village and entered into
the field. That will constitute four hours, four hours according to
me is sufficient time. He could
therefore see the attackers for a
long period.
[49].It is further the
evidence of a witness who is not a stranger to the accused before
court. He was not seeing them for the first
time and when I look at
the totality of those circumstances, I find that Thabang as well as
the deceased were able to identify
the accused persons before me as
their attackers.
[50].The defence is one of
alibi as I have already stated. It is already settled as early as
1952 in
R v Bea
1952 (4) SA 514
(A)
that:
“
It remains the State’s
duty to establish the guilt of the accused beyond a reasonable doubt
and to disprove his alibi to prove
to the court that his alibi cannot
be accepted. It is not the duty of the accused to prove that his
alibi defence is, rather he
is not, an accused person has no duty to
prove his alibi.
[51].In reliance to
S v
Thebus & Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC)
the State contended
that:
“
The alibi rest by the accused persons must be rejected by
this court solely because it was disclosed very late. Very late
referring
to the fact that it was disclosed in court when the trial
started”.
When a witness reports an
accused to the police, it can be accepted is that he is saying
I know him and he is the one who
offended me.
[52].The rationality
behind Thebus is that the State which has a duty to prove the guilt
of the accused beyond reasonable doubt
must be given sufficient
opportunity to investigate the alibi that an accused person intents
to raise as his defence. The accused
person who is confronted with
allegations that he has committed an offence, if he was in Pretoria
and it is said that he committed
that offence in Polokwane is
expected to immediately tell the police that: I was in Pretoria, I
could not have been at the scene
at the
time of the commission of
the offence because I could not have been in different places at the
same time.
[53].It was decided in
this Thebus and other cases that
followed it that the
accused cannot hide behind his rights to remain silent. In Boesak it
was, in
S v Boesak 2001(1) SACR 1 (CC)
:
“
An accused person was found guilty for failing to challenge
the evidence of the State by electing to remain silent in the face of
overwhelming evidence which amount to a face of prima facia evidence
against him”.
The constitutional court
is the apex court and its rulings bind all other courts in this
country therefore it means that the position
with regard to the
disclosure of the defence of alibi as soon as possible is sealed it
is settled.
[54].With regard with
accused 2 both Thabang and the deceased pointed him to the police as
soon as rather soon after the offence
was committed. The witnesses,
Thabang and Sergeant Hlahla testified to the effect that as soon as
he realised that they were pointing
at him he ran out of the
hospital. He denies that
he ran out of the hospital however, he admitted that he went away.
Whether he ran out of the hospital or
whether he simply walked out of
the hospital is neither here nor there. What remains is that at the
stage when the deceased and
Thabang pointed at him to the
police he left the
hospital and went out of the picture. I arrive at the conclusion that
he went out of the hospital because he
knew why Thabang and the
deceased were pointing at him to the police. It is simply a case of
the guilty are afraid.
[55].I am satisfied that
the State has proved beyond reasonable doubt that the deceased Ronald
Kwenaite died as a result of the
injuries that were inflicted on him
on the
20 January
2018
at Ditengteng as well as in the
field where he was thrown into the water. I am satisfied that the
complainant in count 1 Thabang
Clifford Mojapelo was severely
attacked, assaulted, injured with an assortment of weapons.
[56]. I am further
satisfied that the deceased and Thabang were dealt with in that
manner on that date with the intention to murder
them. I am further
satisfied that the evidence that has been presented before this court
in its totality proves that the accused
are the persons who
perpetrated the offences in count 1 and count 2.
[57].I reject their
defences of alibi on the basis that it is a resent fabrication and
that the evidence that they are the perpetrators
is overwhelming
against them. I am further satisfied that the group that attacked the
deceased and Thabang in this matter acted
in common purpose with each
other and with other members of the community who were
present there but who were
not identified by Thabang. I am further satisfied that the
evidence that has been presented proves
that the accused and the
other people with whom they were pre-planned the commission of these
offences.
[58].There was a call that
members of the community must gather and because of that call, the
accused and others gathered. The accused
armed themselves with an
assortment of weapons. Their intention was to deal with whoever they
suspect is the person who steals
their plasmas.
[59].I am therefore
satisfied that the jurisdictional facts which are required to
establish the offence of murder which is read
with
Section 51
(1) of
the
Criminal Law Amendment Act 105 of 1997
exist in this matter and
that the State has proved it.
[60].And as I have already
stated that Thabang is alive
because of what I deem to
be a miracle, I am therefore satisfied that
the evidence in its totality prove that the accused, committed the
offence of attempted
murder in count 1 and of murder in count 2.
[61].You are convicted on
attempted murder in count 1 as charged. You are further convicted of
murder read with the provisions of
Section 51
(1) of Act 105 of 1997
as charged in count 2.
[62].The accused are
convicted of attempted murder in count 1 and murder read with Section
51 (1) of Act 105 of 1997 in respect
of count 2. Before the accused
pleaded to the charges I explained to them that what Section 51 (1)
entails is that: after conviction
I shall have to impose a sentence
of life imprisonment unless I find, in terms of section 51 (3) that
there are substantial and
compelling circumstances that justify
imposition of a lesser sentence.
[63].Mr Tema has correctly
submitted that the Act itself does not define what will constitute
substantial and compelling circumstances
and that the legislature has
decided to deliberately leave it to the courts to decide to
whether the circumstances
that have been presented before it do amount to substantial and
compelling circumstances.
[64].I am of the view that
the legislature was influenced by the long established principle that
sentencing is in the discretion
of the court. I have noted that all
six accused are first offenders despite the fact that they are well
beyond of the teenage age.
It means that accused 1 who is 41-years of
age managed to live his life up to this age without coming into
loggerheads with the
law. As well as accused 4 he is 48-years old and
accused 5 is 25, accused 6 and 22 is accused 3, accused 2 is 34 and I
must say
that in this age where crime is committed willy-nilly their
behaviour up to this stage is commendable.
[65].The offences of
murder and attempted murder are prevalent not only within this
Division but in the entire country. I agree
with the Prosecutor that
what makes this case to stand out is because they were committed with
cruelty. It is cruelty which should
not even be extended to animals.
Animals too deserve to be treated better than the manner in which the
accused treated the complainant
in count 1 and the deceased in count
2. It is so that accused accused 1, accused 5 and accused 2 are
parents however, there is
no prove that they are the primary
caregivers of the children.
[66].I know that there are
many judicial officers who would say that, sentencing is a very
difficult job. I normally avoid phrase
but today with regards to
accused 4 it is difficult for me to sentence him in this case he is a
student at WITS University he is
doing a degree which is not done by
many students and I am saying this because I know that, we know that
the Government is complaining
that many students are shying away from
doing maths and science. He is doing maths and science, it means that
he falls under the
rare breed, if I may say so. I was not told as to
which level he is but from the evidence that was presented before
this was not
his first year. I say it is difficult simply
because it is not the only factor that I must take into consideration
I must
weigh it against all other factors.
[67].In
S v Malgas
2001
(2) SACR 469
it was stated that:
“
Even if the factors
that have been presented before court cannot amount to substantial
and compelling circumstances when taken in
isolation the court cannot
disregard what it referred to as traditional mitigation factors in
its determination of whether a suitable
sentence would be a sentence
as prescribed in Section 51 (1) or 51 (2) of the Act.”
[68].I am aware further of
the principle that states that:
First
offenders must be treated, if possible, differently from hardened
criminals.
I am aware of the
prevalence of the offences which are similar to the offence that the
accused have been convicted. They amount
to mob justice
[69].The dangers of these
types of offences is that in most cases they are meted out against
innocent people. People become victims
simply because they are at the
wrong place at the wrong time, people become victims of this offence
simply because members of the
community do not like them.
[70].I am certain that the
accused persons as they are sitting before me the six as they are,
they cannot State with certainty that
the victims of the commission
of their offences are the ones who stole their plasmas. Thabang is
lucky to be alive because he may
get another opportunity to prove to
them that he was never ever involved in theft of anyone’s
plasma.
[71].Ronald was
unfortunately, with him. It is done it cannot be undone. He is gone.
His family has lost him for good. What worries
this court is that
there is no time where we are not dealing with offences of this
nature. We deal two, three or four of them in
one term. What
exacerbate this position is that they do not emanate from one
community. They come from all corners of Limpopo province
.
[72].I have dealt with
cases that come from Dan somewhere in Tzaneen. I have dealt with
cases that emanate from Sekhukhune, Jane
Furse. There are cases that
come from Bochum. I am saying this because I have a duty as a
judicial officer to deter members of
the community from engaging in
these type of activities. And one way of doing that is by imposing
suitable sentences.
[73].The circumstances of
this case calls for a lengthily prison term although I cannot impose
life imprisonment because I am satisfied
that there are substantial
and compelling circumstances that justify deviation from imposing a
sentence in terms of the Act. One
of them being that you were not
alone when you committed this offence, it was a group of about eighty
people as deposed to by Thabang.
[74].Secondly because you
are not hardened criminals, you are first offenders. And that there
is a possibility that you may refrain
from committing similar
offences. However, because of the cruelty in which you committed this
offence, the cruel manner in which
you committed these offences, I
agree with the State that a lengthy term of imprisonment is the only
suitable sentence. It is a
case where I should not only deter you but
I should deter also members of the entire community.
[75].On count 1 you are
each sentenced to ten year imprisonment.
Count 2 you are each sentenced to
twenty-two years
imprisonment. In terms of
Section 280
(2) of the
Criminal Procedure Act 51 of 1977
.
I order that the sentences in both
count 1 and count 2 shall run concurrently.
M.V SEMENYA
JUDGE
OF THE HIGH COURT; LIMPOPO
APPEARANCES
ATTORNEYS FOR THE
ACCUSED
: MILANZI AT
COUNSEL FOR THE ACCUSED
: ADV. TEMA W
ATTORNEY FOR THE
STATE
:
DPP
COUNSEL FOR THE
RESPONDENT
: ADV. CHAUKE C
DATE OF THE JUDGMENT
AND
SENTENCE
: 06
JUNE 2020