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[2020] ZAGPPHC 51
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S v Tshetshe (CC49/19) [2020] ZAGPPHC 51 (30 January 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
number CC 49/19
20/1/2020
THE
STATE
Vs
NYAKABONE
ROBERT
TSHETSHE
Accused
JUDGMENT
BAM,
J
Appearances:
For
the State: Adv A Fourie and Adv A Roos
For
the accused: Ms Sono
1.
The accused is standing trial on three
charges.
Count 1: Kidnapping of Howard
Takalani Monyai on 15 August 2014 at Mamelodi East.
Count 2: Murder of the said victim
on the same day.
Count 3: Contravention of Section
3(b) of Act 12 of 2004 - offering an amount of R10000 to Grace Kuki
Monyai, for her not to testify
against the accused.)
Alternative to count 3:
Contravention of section 18(b)(ii) of Act 12 of 2004 (Intimidating
the said Ms Monyai not to testify against
him).
2.
The summary of substantial facts reads
as follows:
1.
On 15 August 2014 the accused and 2
other persons visited the house of the deceased and his sister. They
enquired about the whereabouts
of the deceased.
2.
Moments later the deceased arrived
enquiring from the accused and the two men why they were looking for
him.
3.
They grabbed him and loaded him on the
back of their bakkie. They hit him with fists and poured an acid
substance over his body.
They then drove away with the deceased.
4.
Later the same day the deceased was
found by community members in the street, screaming and clearly in
pain. He was taken to hospital.
5.
The deceased passed away on 16 August
2014 in hospital.
6.
According to the hospital records the
deceased suffered 45 to 50% burning wounds. It will thus be alleged
that the deceased passed
away because of the wounds he suffered.
7.
No post mortem was conducted.
8.
On 24 August 2014 the accused approached
the complainant in count 3 offering to pay her R10 000 00 in exchange
that she refrains
from testifying against him.
3.
The
accused pleaded not guilty and the following plea explanation was
advanced: Counts 1 and 2: The accused did not see the deceased
on the
alleged day;
Count 3 and Alternative: The
accused never saw the said person or intimidated her.
4.
The following formal admissions were
made:
The identity of the deceased; That
the deceased died on 15 August 2014 as a result of the injuries he
sustained on 15 August 2014.
5.
The State adduced the following
evidence:
5.1
Ms Grace Kuki Monyai. The deceased was
her brother. They lived in the same house at Mamelodi East. On 14
August 2014 the accused
and two other men arrived at their home. They
were known to her. The men enquired about the deceased who was not at
home. Somebody
else told the three men where the deceased was. The
three men returned about 15 minutes later with the deceased. The
three men
then assaulted the deceased. When they brought the deceased
into the house he was already burned. They also pulled his private
parts with a pair of pliers. The deceased's skin peeled off. His body
was pink. She said the deceased was already assaulted when
they
brought him back to the house.
Court
adjourned -State concerned about the wit ness.
On 28 January 2020.
Witness claimed she was
intimidated yesterday and that she became afraid to testify and to
implicate the accused directly.
Court assured the witness of her
safety in court. The people who apparently intimidated her yesterday
are not present.
Evidence proceeded.
She testified that the deceased
was assaulted in her presence.
She repeated her evidence. Accused
and the other two men who arrived looking for the deceased were
informed by two boys outside
where the deceased was. The accused and
the two men left. They were driving a bakkie. After a short while
later they returned with
the deceased. The deceased was assaulted
with a sjambok and a baton, and the accused's companion , called
Jaman, poured acid over
his body . The 2 litre acid container was
made of plastic. It had the word ACID printed on it and also bore a
human skeleton. They
also pulled the deceased by his private parts
with a pair of pliers. The skin was peeling from the left side of his
body. His penis
was bleeding. He was completely naked. The deceased
was then put in the back of the bakkie and they drove off . Somewhat
later
the three men and others returned to her house. They arrived in
a white Corsa and two other cars, a Conquest and a Jetta. They wanted
to drop the deceased off at her home. She refused because the
deceased was seriously injured . He was very weak. He was inside
the
Corsa. The three cars, with the deceased, then left. It was about
past 12h00 on 15 August 2014. She did not see the deceased
again.
Later she heard that he was taken to the hospital. He passed away on
the 15
th
August 2014.
On that day, at a BP Garage the
accused, accompanied by other people, wanted to talk to her. She,
however, did not want to associate
with them. The accused offered her
R10 000, 00 to drop the case. She was not amenable to that and did
not speak to them any further.
She was then threatened that she would
follow the deceased should she proceed with the case. The cross
examination was extensive.
She
said the day she attended the court sitting at Mamelodi, she was
insulted and threatened by the accused's sister. Yesterday,
when she
was called to testify, she noticed the accused's sister in court. The
two companions of the accused, who assisted him
on the day of the
deceased's assault, had fled. When the accused returned with the
deceased on the bakkie, the deceased had already
been assaulted, but
they then proceeded to assault him at her home. When they assaulted
the deceased they said he shot one Dan,
family of Jaman. When they
assaulted the deceased he was screaming. She could not interfere. One
of the men, Jaman, also had a
firearm tucked in at his waist. After
the accused took away the deceased, she called the police several
times. The police only
arrived some time later. She said she refused
to let the deceased being dropped off at her home because he was
badly injured, and
she would not have known what to do if he died in
her hands. Her husband was busy fixing his car and did not see what
happened.
The accused's defence was
recorded. It was a complete denial of any involvement and all the
allegations against him.
5.2
Dr M Hattingh: On 15 August 2014 she was
on duty at the casualty ward at Mamelodi Hospital. The deceased was
admitted. He was dressed
in his underwear. She tended to the deceased
late afternoon, after 17h00. He was screaming of pain and ran around
in circles. He
had extensive corrosion burns over his body. It had a
chemical smell. He was sedated. Her overcoat later had holes in it
where
she came into contact with the deceased's body. His condition
worsened. The deceased died the next day. His death was caused by
unnatural causes, probably shock because of the extensive acid burns.
(Hospital record Exhibit B).
(It
is common cause that no Post Mortem was conducted but the cause of
death is admitted).
5.3
Mr J Morotho: He lives in Mamelodi. On
15 August 2014 he noticed a group of people in a street. He
recognised the deceased followed
by a lot of people. He thought it
was some kind of mob justice and managed to let the deceased into his
vehicle. The deceased was
suffering from pain. He then took him to
the hospital. The police also arrived.
5.4
Warrant Officer J Ntuli: He is the
investigating officer (the third one). No post mortem was held in
this case due to the fact that
one of the doctors at the hospital, Dr
Naude, mistakenly, considered the death of the deceased to have been
caused by natural causes.
At the time it was discovered the doctor
had made a mistake, which he admitted it was too late to exhume the
body. It had already
decomposed.
State's
case closed.
6.
Defence case.
6.1
Nyakubone
Robert Tshetshe: He is the accused. He testified that on 15 August
2014, he left a barbershop and then heard a shot. He
found a certain
Stephens Skosana who had been shot. Stephen told him that he was shot
by Takalani (the deceased) and one Mujau.
They were not present. At
about 10h00 he managed to take Stephens to the hospital, and remained
at the hospital tending to Stephens.
They had to wait to get a file
opened. (Hospital record Exhibit C). He stayed there until Stephens
was discharged at about 9pm.
Stephens is his cousin-brother. The
accused denied that he knew Grace Monyai and that he saw her and the
deceased on 15 August
2014. He also did not know the deceased. He
also denied that he attempted to bribe Grace on 24 August 2014. The
first time he saw
Grace was when he appeared in the Mamelodi
Magistrate's Court .
Cross examination. He did not know
the names Jaman and Batheza . He heard their names at court mentioned
by the police. He admitted
that his nephew Malatji was
shot
and killed the Sunday prior to the 15
th
a Friday.
He again denied that he knew Grace
at all. He did not know why she mentioned his name to the police. He
said his signature was on
Stephen's hospital record, handed in as
Exhibit C.
He knows the BP garage in
Mamelodi. That is the garage Grace referred to and he never met her
there.
Asked by the Court how he knew
that was the garage she referred to, he said that is the BP garage
close to his home.
6.2
Stephens
Skosana. He stayed at the same premises as the accused. The morning
of 15 August 2014 he was confronted by the State witness
Grace Kuki
Monyai
(Kuki)
and
the deceased, and a certain Jan. It was apparently about the shooting
of a certain Dan. Kuki and the deceased denied that the
deceased shot
at Dan and they swore at him. They then approached him and pointed
fingers at him. He said he would beat Kuki up.
Kuki told Jan to give
his firearm to the deceased and the deceased shot Stephens in the
side. Stephens fell and his friend Lucky
pointed the deceased and
Kuki out to the accused . They were running away. The accused took
him to the hospital and assisted him
t here . He was treat ed, and
X-rayed, but was later discharged at about 9pm. He said the accused
was with him all the time. He
was not aware that the accused had a
vehicle.
During
cross examination he could not think of any reason why he was
confronted by the deceased and Kuki.
The accused was the only person he
told that he was shot by the deceased. He did not mention to the
accused that Kuki was involved.
He denied that the deceased was
aggressive but became aggressive when he threatened Kuki. He said the
accused stayed at the hospital
to assist him because he was in pain.
It was pointed out to him that it was the nurses' job. He said the
nurses only assisted him
at the time the X-rays were taken.
Evaluation.
7.
The
Sate bears the onus to prove the case against the accused beyond
reasonable doubt. The accused bears no onus. In the event of
the
court finding that the accused's defence is reasonably possibly true,
the accused shall be entitled to an acquittal. However,
in the event
of the State's case being totally acceptable and unshaken, there is
no room for a finding that the accused's defence
may be reasonably
and possibly true. See S
v Trainor
2003(1) 35 SCA - Pars [8] and [9].
8.
The
deceased's death was caused by extensive burns over parts of his body
he sustained on 15 August 2014 due to acid having been
poured on him.
Although no post mortem was conducted, Dr Hattingh, the physician,
who attended to him, opined that he died of shock.
9.
The
facts proved that whoever assaulted the deceased by dousing him with
a corrosive acid, had the intention to kill him.
10.
The
State adduced evidence of an eye witness implicating the accused and
two accomplices in the kidnapping and attack on the deceased.
11.
The accused denied any involvement in
the kidnapping and killing of the deceased, and pleaded an alibi. In
respect of count 3, the
bribing of the State witness, Grace Monyai,
the accused denied the allegations.
12.
The State relied on the evidence of a
single witness, Grace Monyai, the sister of the deceased.
13.
It is trite that the evidence of a
single witness has to be approached with caution. In this regard it
is of importance whether
there is any other evidence corroborating
the evidence of the single witness.
14.
Ms
Sono, appearing for the accused, submitted that the State failed to
rebut the accused's version that he had an alibi, concerning
counts 1
and 2. Mr Fourie, on the other hand, submitted that the State's
single witness was truthful and reliable, and that her
version is
corroborated by certain circumstantial evidence.
15.
Ms
Monyai, the State's single eyewitness, at first said that she did not
see how the deceased sustained the acid burn wounds. However
after an
adjournment, returning to the witness stand the next day, she
explained that she was afraid and intimidated, and scared
to directly
incriminate the accused. She explained how she was intimidated and
threatened. She then testified in detail what the
accused and his
accomplices did to the deceased. She also testified that subsequent
to the death of the deceased, the accused met
her at a BP Garage
where he offered her an amount of R10 000 00 not to proceed with the
case against him.
16.
I am satisfied that the witness Grace
Kuki Monyai was clear and satisfactory, and honest, in every material
respect in implicating
the accused. It must be remembered that she
implicated the accused pertaining to two separate events, in time
removed. What is
corroborating of her evidence involving the accused,
is the following:
1.
Shortly after the shooting of Kosana,
allegedly by the deceased, the deceased was attacked with acid. The
accused is the only third
party who knew that the deceased allegedly
shot Kosana. Kosana's friend, Lucky, who also knew about the
shooting, never became
involved.
2.
The accused stumbled during cross
examination when he said the BP garage Kuki referred to, concerning
the corruption charge, count
3, is the one close to his home. The
accused could not have known that if it did not happen.
3.
Kosana could not vouch for the accused's
presence at the hospital all the time. The hospital and Ms Monyai's
home is close to each
other . Kosana's evidence, attempting to
implicating Ms Monyai in the shooting incident, was palpably a lie.
It came as an afterthought
and Kosana's admitted failure to tell the
accused, and defence counsel about it, remained unexplained.
4.
It is appreciated that a witness may lie
for a variety of reasons, but, holistically consider ed, it is highly
improbable that Me
Monday would have implicated a totally innocent
person whom did not even know her at the time.
17.
It follows that the State's evidence
implicating the accused in the crimes preferred against him is
totally acceptable and unshaken,
and that the accused's defence is
rejected
18
The accused is convicted as charged. (Count 3 - the main charge.)
AJ
BAM
JUDGE
OF THE HIGH COURT
29
JANUARY 2020.
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG
DIVISION
CASE
NUMBER CC 49/19
STATE
Vs
NYAKABONE
ROBERT
TSHETSE
Accused
JUDGMENT
-SENTENCE
BAM,
J
Appearances:
For
the State:
Adv A Fourie en Adv A Roos.
For
the Accused:
Adv MM Sono.
1.
The accused was convicted on 3 serious
charges, Kidnapping, Murder and Corruption.
2.
To impose the most appropriate sentence
is a difficult task.
3.
The purposes of sentence are as follows:
Retribution (that is the punishment itself}, deterrence, prevention
and rehabilitation.
In matters of a serious nature, like murder,
however, the purposes of prevention and rehabilitation necessarily
recede into the
background.
4.
In respect of premeditated murder, or
where the murder was committed by several perpetrators, with a common
purpose, the Act on
Minimum Sentences of 2000 provides for a minimum
sentence of life imprisonment. The same Act however provides that in
the event
of the existence of substantial and compelling
circumstances justifying a lesser sentence, the court shall impose a
lesser sentence.
5.
In order to determine whether such
circumstances exist the court has to consider all relevant facts,
including the personal circumstances
of the accused, the nature and
extent of the crimes, and the interests of the community. The latter
issue also includes the consideration
that the sentence should be
victim centred. It means that the impact of the crimes on the
victim's family should also be of importance.
6.
In respect of the nature and extent of
the crimes, the following:
The deceased was attacked in a
most gruesome way. After the attack, when he was observed by his
sister Ms Monyai, he was in a bad
condition, and even at the stage
his skin was peeling off his body. The deceased, in this severe
condition, was apparently left
abandoned at the roadside by the
accused and other perpetrators, almost naked. The accused and his
fellow perpetrators showed no
mercy to the deceased. When he was
fortunately noticed by a Good Samaritan, a member of the public, who
knew him and who transported
him to the hospital, he was physically
in a weak condition. Even a few hours after the attack at the
hospital, whilst the skin
was peeling off his body, the deceased was
observed running around and screaming in pain. He was then heavily
sedated but died
later as a result of the injuries caused by the
acid. The deceased suffered severely for hours on end. It is
difficult to imagine
a more cruel way to treat a fellow human. The
circumstances of this case are seriously aggravating.
7.
The personal circumstances of the
accused are as follows: At the time of the incident he was 47 years
of age, divorced but has two
teenage children to care for. He was not
employed.
8.
Concerning the interests of society it
must be remarked that it appears that the crime of murder in our
country is on the increase.
Human life became cheap and is not
respected anymore. People are randomly killed. Regarding the impact
of the deceased' s death
on his family, it suffices to say that the
death of the deceased in this cruel manner must have been
devastating.
9.
There are no substantial and compelling
circumstances justifying a lesser sentence than the prescribed life
imprisonment. This court,
in any event has jurisdiction to impose
life imprisonment in matters where the aggravating circumstances are
of the nature as in
this case.
10.
ln respect of counts 1 and 3 it suffices
to remark that these crimes are also of a serious nature.
SENTENCE:
Count
1: 10 (Ten) year's imprisonment;
Count
2: Life imprisonment;
Count
3 (Ten) year' s imprisonment.
AJ
BAM
JUDGE
OF THE HIGH COURT
29
January 2020
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: CC43/19
THE
STATE
Vs
NYAKABNE
ROBERT
TSHETESE
Accused
JUDGMENT-LEAVE
TO APPEAL
BAM, J
1.
Oh 29 January 2020 the accused was
convicted and sentenced on 3 counts, as follow s: 1-Kidnapping- 10
years imprisonment ; 2 Murder
- Life imprisonment; 3 Corruption - 10
years imprisonment.
2.
The accused's application for leave to
appeal was opposed by the State.
3.
Adv Sono who also appeared for the
accused at the trial, did not raise any argument that was not raised
during the trial.
4.
Accordingly I deem it expedient to refer
to my written judgments concerning the convictions and the sentences.
5.
In my view there are no reasonable
prospects of success on appeal.
6.
The application for leave to appeal
against the convictions and sentences is dismissed.
A
J BAM
JUDGE
OF THE HIGH COURT
30
January 2020