About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 100
|
|
S v Motaung (8/2017) [2019] ZAFSHC 100 (31 May 2019)
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
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No.:
8/2017
In
the matter between:
THE
STATE
and
MOLETSANE
McDONALD
MOTAUNG
CORAM:
MATHEBULA J
JUDGMENT
BY:
MATHEBULA,
J
HEARD
ON:
20, 21, 22, 23, 24, 27 &
28 MAY 2019
DELIVERED
ON:
29
& 31 MAY 2019
[1]
The indictment states that the accused is guilty of the crimes of
Murder read with the provisions
of section 51(2) and Schedule 2 of
Act 105 of 1997, Unlawful Possession of a firearm and defeating or
obstructing the administration
of justice. The accused pleaded
not guilty to all charges and did not give any plea explanation.
[2]
A bundle of documents was handed in and admitted as Exhibit A to D.
Exhibit A and B are
two photo albums compiled by Warrant Officer
Mokgobo Gloria Mofutsanyane. The photos on Exhibit “A”
largely depict
the scene of crime on the fateful day of 21 September
2015. Exhibit “B” is the construction of the crime scene
she
undertook on 23 March 2016 as per the request of the
Investigating Officer Warrant Officer Mollo. Exhibit “C”
is the Report on Medico-Legal Post-Mortem Examination conducted by Dr
Samuel Moopela following an examination on the body of the
deceased
on 22 September 2015. The cause of death is recorded as gunshot to
the head. The photos on Exhibit “D” were
taken and
compiled by the bosom friend of the deceased Matieho Dlamini on 26
October 2014 allegedly following an assault on her
by the accused.
[3]
In an effort to shorten the proceedings, the admissions made in terms
of section 220 of
Act 51 of 1977 were reduced to writing and handed
in as Exhibit “E”. They are as follows:-
“
1.
The identity of their deceased mentioned in count 1 of the
indictment.
2.
That the above-mentioned deceased did not sustain any further
injuries from the time of the discovery of corpse
do the execution of
the post-mortem examination (Exhibit C).
3.
The findings and contents of the post-mortem report (Exhibit C) are
correct and sound.
4.
That the expended cartridge of a firearm found in the deceased’s
bedroom and depicted on photo number
11 in Exhibit “A” is
a 9 mm Parabellum pistol calibre.
5.
That the accused is not licensed to possess a firearm.”
[4]
The accused and the deceased were involved in a love affair from
around 2011. Apparently
it started on a happy note and with time
progressed into a tumultuous one punctuated by assaults and fear
perpetrated by the accused.
This became clear in the evidence of
K[….] M[….], P[….] P[….], M[….]
D[….] and M[….]N[….[.
It is arguable whether the
love affair was still in existence or not at the time of her demise.
Equally whether it co-existed with
the one she had with M[….]
N[….]or the latter existed on its own. I shall return to this
aspect at a later stage.
[5]
The first witness, K[….] M[….] a seventeen (17) year
old son of the deceased
testified that on that fateful day, together
with his aunt were woken up by the deceased to prepare to go to
school. It was
at around 5H30am. A while later the accused
arrived and he saw the deceased boarding his City Golf motor
vehicle. What attracted
him to look through the window was that
he heard the deceased screaming for help. He observed that the
front left passenger
door was open and her leg was dangling outside.
He formed the opinion that she appeared like a person who wanted to
alight
it but being held back. He reached this conclusion
because she was also sitting with her back on the driver instead of
both
of them facing in the same direction. The motor vehicle
sped off with her inside.
[6]
They summoned for help from her maternal grandmother P[….]
P[….] who stays
at Lusaka Village. The time was between
6H30am to 7H00am. About ten (10) minutes after she had left the
deceased called
her cell phone informing them that they should take
the money which was in the boot of her motor vehicle. He was
unable to
do so because it was raining.
[7]
A while later she returned and she looked like a person who had been
crying because she
was wiping the tears from her eyes. He did
not ask her the source of her tears because he knew that the accused
was a violent
person. The accused used to fight with the
deceased. He once pulled her with her pants while they were
watching television.
On another occasion he broke a window in a
rage. The deceased gave him and his aunt twenty (20) rands each
and was preventing
the accused from entering the house. She
told them that the accused will take them to school.
[8]
They drove off with the accused for a short distance until the
neighbour’s gate where
he stopped the motor vehicle and
reversed it to their gate after enquiring as to who was in the house
and they had informed him
that K[….] slept at Lusaka last
night. The accused alighted and proceeded to enter the house
and it was at this time
that his maternal grandfather arrived there
and stood next to his mother’s motor vehicle.
[9]
His grandfather told the accused that he want to talk to him and the
latter responded that
he will come back. They left with him to
school dropping off K[….] first at her school.
[10]
While they were left alone the accused probed him whether the
deceased was engaged in any other love
affair. He answered in
the affirmative because he was aware that she was seeing another
person. The relationship between
himself and the accused was a
cordial one. He once bought him soccer boots to pursue his
passion of playing football.
They also spent one Christmas with
him.
[11]
He continued that as they were driving to school, only one hand of
the accused was on the steering
wheel. The other hand was not
in the sleeve of a sweater he was wearing and he will only take it
out on occasions.
However, he never saw the accused holding a
firearm on that day. He continued that the deceased had given
them firm orders
not to allow the accused into the house. At
one stage the accused brought her garment and did not enter the erf.
[12] He
testified that when she called at the time she was away with the
accused, he does not know whose phone she used.
It was put to
him that according to the accused, when he went back to the house he
found the deceased already shot. His response
was that he does
not know and can neither confirm nor deny it.
[13] M[….]
D[….] P[….], the second witness and father of the
deceased, responded to a request from
his wife that there was an
altercation between the accused and the deceased. It took him
approximately thirty (30) minutes
to run to her house. On
arrival he found the accused about to take the children to school.
He requested to talk to
him and he responded that he will come back
after dropping the children at school. Before leaving he
requested the deceased
to make him tea. He left to look for his
wife (who was following him) at the bus stop.
[14] On his
return, he called out the deceased who was taking time to bring his
tea and there was no reply. He
tried to open the door but it
was locked. This gave him a fright. One of the neighbours
gave him a garden spade and
he used it to open the door. Inside
he encountered the body of the deceased on the floor in her bedroom.
She was lying
on her stomach and already injured.
[15] The
accused was well known to him as her boyfriend for quite some time.
During their interaction he found
him to be a respectful person and
they have never had difficulties in their relationship. The
last time he spoke to the accused
was when he left with the
children. He had never seen him since that fateful day neither
has he (accused) made any contact
with him.
[16] Under
cross-examination, he denied that a week prior to her demise they had
an altercation with her over missing
money. His terse response
was that in his family he does not handle the finances but his wife
does so. He denied ever
calling the accused on his cell phone
because he does not have his number.
[17]
Elaborating on his encounter with the accused that morning, he stated
that he met him on his way out to taking
the children to school.
It is unclear whether he saw the deceased or not. Also whether
the deceased responded verbally
to his request or not. However,
when he left to meet his wife at the bus stop, the accused and the
children were still waiting
in his motor vehicle. It took him a
bit of time and on his return he met the accused in his motor vehicle
taking the children
to school. The accused told him that the
time for school is up and he will talk to him at a later stage.
[18] The
version of the accused put to him was that the accused proceeded to
her residence to confront her about the
missing money, which resulted
in a quarrel. The couple drove away in the motor vehicle to the
Golden Gate National Park where
they made up for the misunderstanding
and engaged in a sexual intercourse. On their return he took
the children to school.
However, he returned and entered the
house in order to relieve himself. He (P[….]) testified
that he does not have
any knowledge of his version and cannot admit
nor deny the same.
[19] On being
probed further, he testified that, at any stage while he was there,
he did not hear any gunshot and never
saw the accused holding a
firearm. The issue that the position he stated to have found
the body of the deceased differed
with that on photo 7 and 8 of
Exhibit “A”, he stated that the body must have been put
on the bed by people who arrived
at the scene shortly after he had
discovered it.
[20] The
mother of the deceased, P[….] P[….], the third witness,
testified that she received a cell phone
call about the warring
couple and summoned her husband to attend to it at once. She
was fearing that her daughter might be
killed because K[….]
(her other daughter) told her that the deceased appeared frightened.
In addition she was aware
that the love affair had hit rock bottom
and on that day she had cut off the ties.
[21] It
happened that the deceased once called from Bloemfontein in tears.
She narrated to her that the accused
had assaulted her even using a
firearm. She implored her to come home.
[22] On that
fateful day after her husband had left, she received a cell phone
call that a motor vehicle had been dispatched
to fetch her. She
walked up to the shopping centre and then travelled with the
occupants of that motor vehicle to the deceased’s
residence.
On arrival she found few people milling around and on enquiring about
her daughter. She was informed that
she was no more.
[23] On the
issue of the assault that occurred in Bloemfontein, she testified
that it occurred about a month prior to
her demise. On a Sunday
when the couple returned, they held a meeting at her house attended
inter alia by the accused, his
mother, herself, deceased and her
friend M[….] D[….]. The accused’s mother
proposed that the warring
couple must separate with the accused
remaining with her and deceased at her residence in Mandela Park.
The accused objected
to it and indicated that it will not happen and
he will do something about it.
[24] The
intense cross-examination that followed elicited from her
confirmation of the cell phone call and that she
was informed that
the accused has taken the deceased away with him. Further, that
she was privy to the state health of the
love affair because they had
an unbreakable bond with the deceased. She vehemently denied
the accused’s version put
to her that the deceased was
assaulted by the wife of the man she was seeing at that time.
[25] The
fourth and fifth witnesses are police officers who arrested the
accused on the same day of the incident about
fifty (50) kilometres
from the scene of crime. They corroborated each other
significantly although there are contradictions
that must be pointed
out in the respective testimonies.
[26] They
were on patrol at Petsana, Reitz when they received a call to be on
the lookout of the black Volkswagen Golf
coming from the direction
Qwa Qwa. They were informed that the driver of that motor
vehicle is a wanted person armed with
a firearm and had just murdered
a woman. They set off in the direction of Kestell/Qwa Qwa with
the hope of finding the suspect.
[27] They
drove for approximately forty (40) kilometres until the intersection
of Warden/Bethlehem/Kestell and Reitz.
The first person they
encountered walking on foot towards the intersection was none other
than the accused. They enquired
from him whether he had seen
the aforementioned motor vehicle. He answered in the
affirmative that it had had gone in the
direction of Bethlehem.
He also informed them that he was one of the construction workers who
were repairing the road at
that time.
[28] They
approached another construction worker who was driving a truck.
They were doubtful about the accused
because he was not even wearing
the appropriate safety clothes for construction workers. The
driver told them that he had
only started the new job that morning
and the accused was unknown to him. It was at this stage that
they saw the accused
boarding a motor vehicle driven by a passer-by
driver. They set off after it.
[29] They
caught up with it few kilometres from the intersection, stopped and
searched it. The accused was not
in the motor vehicle and were
informed by the driver that soon after boarding, he requested the
motor vehicle to stop and he alighted.
They returned towards
the intersection to look for him. It appears that they were
driven by police instincts. They
were approaching the
construction site office when they spotted him again and he
immediately hid behind the water pipes.
Only when they stopped
next to where he was did he emerge from the water pipes.
[30]
Constable Makhoba read him his constitutional rights and informed him
that he was being arrested as a suspect.
The accused informed
them that he was the person they were looking for and that his motor
vehicle had overturned on the way.
He drove with them to where
the motor vehicle was parked on the farm road and they noticed some
damages particularly on the left
rear passenger door. On their
arrival there were a sizeable contingent of police officers from
different units.
[31]
The three (3) of them left the scene where the motor vehicle was
parked to Phuthaditjhaba Police Station.
On the way they asked
him about the firearm. His response was that he disposed it
somewhere between the Engine Garage and
University Campus.
According to Warrant Officer Mosia they looked for it on the way to
the Police Station and were unsuccessful
in their endeavours.
The evidence of Constable Makhoba is that they went to the Police
Station and only thereafter went to
look for the firearm.
[32]
Under cross-examination, it was put to Mosia that the accused
deliberately gave false information because
he was scared. He
denied ever hiding himself from them. His version is that he
was assaulted by the many police officers
who were there and in an
effort to save his skin he lied about the firearm. Perhaps the
more telling of his version is that
he became scared and afraid when
he saw the body of the deceased in the house. That is the only
reason why he evaded the
police when he saw them at the intersection.
[33]
The evidence of the sixth and seventh witnesses namely Warrant
Officer Teboho Mofokeng and M[….]
M[….] is largely
unchallenged and only deal with the securing of the scene of crime
and taking photographs depicting how
and where the deceased was
found. Nothing turn on their evidence pertaining to who killed
the deceased. I pause to
add that their evidence is largely
undisputed.
[34]
The eighth witness M[….] D[….] had not only known the
deceased for approximately ten
(10) years but their relationship has
grown from being bosom friends and sisterhood. She testified
that on 26 October 2014
they were supposed to have dinner with the
deceased but she failed to honour the appointment. Only at
around 20H00pm did
she call her sobbing and told her that she was at
het parental home. Together with her sister they went there.
[35]
The accused, his mother, deceased’s parents and son were all in
the house. However the
meeting was apparently concluded and the
accused left with his mother. They later took her child to
Bolata Village and thereafter
proceeded to Mandela Park.
[36]
She noticed that the deceased had bruises above her eye, ears, arms
and knees. On enquiring about
them, the deceased informed her
that they were caused by the accused. She continued that she
tried to run away from him on
their way back but he caught up with
her.
[37]
She also related an incident that occurred in Bloemfontein when the
deceased was attending a training
course at her new company.
The accused arrived there unannounced and accused the instructor of
having a love affair with
the deceased. This was apparently the
later straw that broke the camel’s back. The deceased
called off the love
affair. The accused continued threatening
and assaulting her.
[38]
At the time of her demise she was seeing one N[….]and had also
bought a new motor vehicle.
The day before her untimely death
they went to church and returned to have lunch at the deceased’s
house. They later
parted amicably at around 14H00pm. She
learned about her death the next day.
[39]
The crux of the evidence of the ninth witness M[….] N[….]
is that they have been involved
in a love affair with the deceaced
for approximately a month before her demise. They spent the
evening of 20 September 2015
together until she left at around
22H00pm. They spoke over the phone later that day when he
wanted to satisfy himself that
she was safe.
[40]
The next morning at around 7H00am she put a call through to her and a
child answered it that she is
out but she will give her the message.
Later in the morning the deceased called her informing him that the
accused had been there
and he looked around the residence. The
accused according to her, had driven her to the nearby Golden Gate
National Park and he
had a firearm which he put on the dashboard. He
advised her to report the matter to the police. Their conversation
was abruptly
ended when the deceased sounded distracted by something
she hang up and promised to call a bit later.
[41]
A quarter of an hour later her received a cell phone call from her
cell phone but it was a male voice
on the other end. The male person
who identified himself as Moletsane (accused) wanted to know how do
they know each other. During
that conversation, the said person
informed him that he will never see the deceased she is dead. He
wanted to know where he was
and concerned about his own safety, the
matter was reported to the police.
[42]
At this stage the State closed its case.
[43]
The accused testified in his defence and stated that he received a
call from D[….] P[….]
complaining about the deceased
that she had misappropriated his money and displayed disrespectful
conduct. They had arranged to
meet at the residence of the deceased
on the day of her demise. That is what led him to proceed to her
residence that morning at
about 5H00am.
[44]
On arrival the deceased approached him and they spoke briefly before
she returned to the house. Later
she emerged, boarded his motor
vehicle. The issue of the missing money cropped up and they
fought over it. This was later
resolved and he drove off. A few
metres away he stopped because his faulty passenger door could not
close properly.
[45]
They drove to Golden Gate National Park and even had sexual
intercourse there. They returned and the
deceased entered her
residence while he remained outside seated in his motor vehicle. At
that stage they were still involved in
a love affair although her
father has intimated to him that she was involved in a love affair
with someone else.
[46]
All the same he left with the children but quickly reversed, alighted
and entered the house because
he was pressed and wanted to relieve
himself. Emerging from the residence he encountered her father. They
briefly spoke to each
other and they agreed to continue their meeting
on his return. On his way back his uncle called enquiring about the
earlier altercation
with the deceased. He assured him that all was
well in the nest.
[47]
He arrived at the deceased residence, and proceeded to her bedroom.
There she was lying on her back
with her head covered with blood. He
tried to resuscitate her but to no avail. This gave him such a fright
that he boarded his
motor vehicle and fled the scene. Later he
contacted his attorneys and they advised him to come to Bethlehem.
[48]
His woes were compounded when on the way there, he was chased by
unknown person(s) in a Volkswagen
Jetta. After a brief car chase
around the dusty streets of Kestell he was on the way towards Reitz.
It is unclear as to how he
overturned his motor vehicle and ended up
on foot.
[49]
He corroborated the evidence of Mosia and Makhoba regarding the
circumstances around his arrest bar
the allegation that he tried to
hide himself away from the police. On the way to the police station
they assaulted him. This continued
unabated at the police station and
he lied in order to bring it to a halt. He deliberately showed them a
place just a place in
order to save his skin.
[50]
Returning to the assault on 26 October 2014 against the deceased, it
was his narration that the injuries
were inflicted by one Nthabeleng
miffed by a love affair that the deceased had with her husband one
Fani. At no stage did
he beat up the deceased as alleged by
M[….] D[….]and P[….] P[….].
[51]
It was his view that someone must have killed the deceased and
surreptitiously left the crime scene.
This is exactly what gave him a
fright because he suspected that the circumstances of her death will
be pinned to him. In essence,
he did not commit any crime he is
accused of having committed.
[52]
His mother Emily Motaung testified that she was in the motor vehicle
with the accused and the deceased
sometime in April 2014 from
Bloemfontein to Qwa Qwa. At no stage did she witness an
altercation between the couple. On arrival
at home they dropped her
off and left. A while later they returned and the deceased was
bruised and her eyes were swelling.
She was informed that she had
been assaulted by a woman whose husband she was engaged in an illicit
affair. The deceased was reluctant
to report the matter to the
police. They then went to her homestead to report the matter.
[53]
The deceased was coy to report fully to her parents because she was
afraid / embarrassed that she was
dating two men.
[54]
On the day of her demise, she was sleeping when her brother woke her
up that there was a fight between
the couple. Together they proceeded
to the residence of the deceased. There he met her father. They
entered the house and the father
of the deceased opened the bedroom
door using a spade. The deceased was slumped on the bed covered with
blood.
[55]
On making this ghastly discovery, the father remarked that the
accused had killed his child.
They sat outside for some time
and noting that the police were to not arriving at the scene of
crime, she took the initiative to
go and report it personally at the
police station.
[56]
With no further witnesses to call, the accused closed his case.
[57]
Confronted with this evidence, I must consider whether the State has
succeeded in proving its case
against the accused beyond reasonable
doubt. It is common cause that the State case against the accused is
based on circumstantial
evidence. In this regard I am guided by
well-established legal principles followed in our courts for decades.
[58]
The locus classicus case dealing with this subject is
R
v Blom
[1]
where the court stated that there are two (2) cardinal rules of logic
which cannot be ignored. The first is that the inference
drawn must
be consistent with all the proved facts and the second part is that
the proved facts should be such that “they
exclude every other
reasonable inference from them save the one to be drawn”.
[59]
The position as stated in
R
v De Villiers
[2]
the court said the following about the cumulative effects of
circumstantial evidence:-
“
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 quilt is the only inference which can reasonably
to
drawn.”
[60]
In
S v
Reddy
[3]
the
court held that circumstantial evidence is not necessarily weaker
than direct evidence. In the contrary, there might be instances
where
it may even be considered stronger or of more value than direct
evidence. This evidence must be based on objective facts.
[61]
Circumstantial evidence on its own is problematic. The court
cautioned about it in
S
v Cooper and others
[4]
in the following manner:-
“
When triers of
fact come to deal with circumstantial evidence and inferences to be
drawn therefrom, they must be careful to distinguish
between
inference and conjecture or speculation. There can be on inference
unless there are objective facts from which to infer
the other facts
which it is sought to establish. In some cases the other facts can be
inferred with as much practical certainty
as if they had been
observed. In other cases the inference does not go beyond reasonable
probability. But if there are no positive
proved facts from which
inference can be made, the method of inference fails and what is left
is mere speculation or conjecture”.
[62]
The accused person is under no obligation to prove his innocence and
this was lucidly explained in
the following manner in S v V
[5]
“
It
is trite that there is no obligation upon an accused person, where
the State bears the
onus
,
'to convince the court'. If his version is reasonably possibly true
he is entitled to his acquittal even though his explanation
is
improbable. A court is not entitled to convict unless it is satisfied
not only that the explanation is improbable but that
beyond any
reasonable doubt it is false. It is permissible to look at the
probabilities of the case to determine whether the accused's
version
is reasonably possibly true but whether one subjectively believes him
is not the test. As pointed out in many judgments
of this Court and
other courts the test is whether there is a reasonable possibility
that the accused's evidence may be true”
[63]
The emphasis is that there is no onus on the accused to prove the
truthfulness of any explanation which
he gives to convince the court
that he is innocent. The court is enjoined to consider the strengths
and weaknesses including the
merits or demerits as well as the
probabilities and improbabilities. Whether this court subjectively
believes him or not, is not
the test. Should there be any reasonable
doubt concerning his guilt, then he must afforded such doubt and be
acquitted.
[64]
The following are the proven facts in this case:-
1.
On 21
September 2015 the accused proceeded to the deceased’s
residence early in the morning at around 5H00am.
2.
They had an
altercation and he drove off with her while the passenger door was
open and her foot was dangling outside the motor
vehicle. The aspect
that the door was not properly closed was confirmed by the accused.
3.
That as a
result of this frightening experience she cried for help as testified
by K[….]. They drove away and she made a
cell phone call to
the children from the accused’s cell phone.
4.
On her
return she entered her residence and the accused left with the
children. After making inquiry about who else was in the house
he
returned and entered the house.
5.
During this
time the father of the deceased arrived and they had a conversation.
The father of the deceased left and they had arranged
with the
accused that they will meet at a later stage.
6.
D[….]P[….]
is the one who opened the door with a spade and found the deceased
slumped on the bed with a gunshot wound.
7.
The accused
did not return to him and was few hours later arrested by Warrant
Officer Mosia and Constable Makhoba about fifty (50)
kilometres away
from the crime scene. He gave them a false version not only about his
presence there but also about the firearm
that was used to murder the
deceased.
8.
It is
common cause that no assault charges were laid by the accused against
both Mosia and Makhoba or any other police officer alleged
to have
assaulted him.
9.
The
deceased was no longer in a love affair with the accused and had
moved on with M[….] N[.…].
[65]
I was impressed by the evidence of K[….] the young son of the
deceased. In an eloquent but quite
manner he responded to the
questions that led me to conclude that he is a reliable and credible
witness. He did not attempt even
to add anything in order to
aggravate the plight of the accused.
[66]
He testified that the accused on emerging from the house drove with
his left hand out of the sleeve
and hidden in a sweater. Only
occasionally will he take it out and take it back again. The accused
while they were both in the
motor vehicle wanted to know who was in
the house and only then entered it. He did not even add that the
accused was in possession
of a firearm or some weapon. On the way
once he was isolated from his aunt, the accused interrogated him
about the new love affair
that his mother was engaged in.
[67]
I accept his evidence that his mother was no longer in a love affair
with the accused. They were given
instructions not to allow him to
enter the house. This is indicative of the irretrievable breakdown of
the love affair between
the couple. He stated that the accused was a
violent person who had been engaged in violent episodes with the
deceased. These are
not those that other witnesses testified about.
He added that the accused was a good person to him. This shows that
he does not
harbour any bitterness to falsely implicate the accused.
[68]
The evidence of both D[….] and P[….] P[….] has
some contradictions. I hasten to
add that I found them to be
reliable, honest and credible witnesses. Though there are
contradictions, I deemed them not to be material
in the
circumstances.
[69]
D[….] P[….] spoke to his daughter on the day in
question requesting her to make him tea.
He spoke to the accused and
asked for a meeting. He left to pick up his wife from the bus stop.
He was gone for approximately fifteen
(15) minutes. The only reason
he was there was because he was told that the accused had taken the
deceased away and she looked
frightened by that conduct. Here he
acted like any other right thinking parent. It was not put to him
that he was there because
of a pre-arranged meeting with the accused.
[70] On his
return he met the accused on the way. On arrival he found the doors
locked and the deceased not responding
to him. He used the spade to
enter the house. He was alone. It was not put to him that the
deceased’s mother was also there.
The glaring contradiction
lies on the aspect that he said he found the deceased on the floor
whereas the photos on
Exhibit A
shows that she was lying on
her back on the bed. His assertion is not supported by the proven
facts. However, the material aspect
is that he discovered the
deceased in her bedroom already late. During the time that he made a
ghastly discovering and arrival
of the police, the accused did not
return.
[71] The
evidence of P[….] P[….] contradicts that of A[….]
D[….] pertaining to the date
of the meeting after the accused
had assaulted the deceased. Her assertion of the date is one year
after the fact. Her confusion
of the dates leave me not to place any
reliance on her evidence on this aspect. However, she responded to
questions put to her
in a candid manner that was not misleading. Be
that as it may, she testified that the accused was an abusive partner
to her daughter.
[72] I accept
as reliable and truthful the evidence of A[….] D[….].
As the bosom friend of the deceased
she was privy even to her private
life. She too, was aware that the accused was in the habit of
assaulting her. It was not disputed
that she took the photos accepted
as
Exhibit D
which patently showed that she was assaulted. Her
evidence corroborates that of P[….] P[….] that the
person who caused
the injuries was none other than the accused. She
too, was an impressive and a credible witness.
[73] I do not
intend to deal with the evidence of other witnesses as it is largely
common cause between the parties.
I accept the evidence of all the
members of the South African Police Service who testified in this
case.
[74] I must
point that there is a contradiction between the evidence of Mosia and
Makhoba regarding the chronology of
events limited to the time they
went to search for the firearm. According to Mosia they did so before
proceeding to the police
station with the accused. The version of
Makhoba is that they went to the police station and thereafter went
to search for the
firearm. The latter version is corroborated by the
accused.
[75] The
common denominator is that the two policemen were led by the accused
on a wild goose chase to an area between
the University Campus and
the Engine garage to search for the firearm. He told them that he
discarded it there. They did not go
there on their own but at his
behest. Equally, they both testified that they did not assault him or
was he ever assaulted by any
person in their presence. It was also
not put to them that they intimidated and/or assaulted the accused in
order to reveal the
firearm and the place where he discarded.
[76] The
chain evidence narrated by T[….] M[….] and M[….]
M[….] is not in dispute. I accept
their evidence as reliable
and truthful.
[77] The
testimony of K[….] and M[….] is corroborated by the
evidence of her boyfriend at the time of
her demise. They had been
having the affair for approximately a month prior to her demise. Of
relevance is his testimony that he
called her on the morning of 21
September 2015. He left the message with the child because she was
not at home. Later she called
her that the accused was there and
intimidated her with a firearm which was placed on the dashboard. He
was not confronted and
contradicted that the accused was there that
morning and intimidated her.
[78] Equally
he was not confronted and contradicted that he spoke to the person
identifying himself as the accused that
morning. The accused informed
him that he will not see the deceased anymore because she has passed
on.
[79] I was
impressed by his demeanour in the witness box and the forthright
manner that he dealt with the questions
posed to him. The accused was
and is still an unknown person to him prior to seeing him in the dock
and there is no reason pointed
out that he could be telling lies to
aggravate the situation of the accused. He did not contradict himself
and his version of events
withstood relentless and intensive
cross-examination.
[80] The
accused testified in his defence. The crux of his evidence is that he
left the disease alive when he took the
children to school. As
promised he returned and made a grisly discovery of the deceased shot
in the head. This gave him such a
fright because he was concerned
that he will be falsely accused of having committed the deed of
murdering her. He did not call
the neighbours, his family, her family
and/or the police. He drove past two police stations, lied his way to
two policemen before
admitting that he was the person they were
looking for.
[81] I find
the accused to be an accomplished liar whose version of events is so
far-fetched that it cannot be reasonably
possibly true. It is a
convoluted web of lies of which most of it is an afterthought.
[82] Under
cross-examination most of his version came unstuck and he
contradicted his earlier version or that that was
put to the
witnesses on his behalf and probably on his instructions.
[83] It
cannot be true that after dropping the children he came back to the
residence of the deceased. He parted ways
with D[….] P[….]and
promised him that he will return. It is the latter who found the
deceased dead with a gunshot
wound. What unfolded thereafter was that
the neighbours descended to her house, onlookers and the police. He
was nowhere near the
house of the deceased.
[84] The
version that he got a fright on discovering the deceased is a
far-fetched narration without logic and common
sense. The impression
created is that he was in love with the deceased. When he finds her
in crisis, his first concern is to try
and save his skin. He called
his lawyers and actively went to them. He does not try to assist his
lover in distress, a point I
have repeatedly alluded to in the
preceding paragraphs.
[85] He
concluded without any cogent basis, that he will be falsely accused
for her death. The overwhelming evidence
is that indeed he was the
sole cause of death. I conclude as such because his conduct points to
the person who murdered the deceased.
He left the house and after
ensuring that she was alone, he returned to the house under the
pretext of relieving himself. One gunshot
was all that was required
to eliminate her from the face of the earth.
[86] K[….]
described his conduct of hiding one hand as he was driving them to
school. He must have been hiding
something. I conclude that the facts
point to the Parabellum 9 mm which was used to murder the deceased.
The spent cartridge was
found in the bedroom.
[87] It was
not put to the witnesses Mosia and Makhoba that they assaulted him. I
accept that he voluntarily engaged
them in a wild goose chase
patently aware that the firearm is safely deposed off. The fact that
he was found far away from the
scene of crime is reminiscent of a
person who was fleeing the scene and covering his tracks. The version
about being chased by
unknown motor vehicle only surfaced in his
evidence in chief. I have no hesitation but to reject his version as
false.
[88] His
mother did not do herself as a witness any favours nor the fortunes
of her son. She was woeful and an accomplished
liar as well. She was
testifying on an incident that happened on a different date. The less
said about her the better. Pity she
tried to save him but failed
dismally to make sense in her evidence.
[89] She
testified that she was there when D[….] P[….] entered
the residence of the deceased. He opened
the door and used a spade to
open the bedroom. Until she came on the picture, it was accepted that
when he entered he was alone
and one of the first person to arrive
was his wife P[….]. The spade was used to open the main door.
D[….] P[….]
was not confronted with her version and his
evidence is contradicted. It is clear that she veered off the
script and introduced
a version that did not assist the accused. I
reject her evidence as unreliable, contradictory and untruthful.
[90] I simply
restate the legal position that proof beyond reasonable doubt does
not mean proof to an absolute certainty
nor is proof beyond any doubt
or frivolous doubt. The only logical conclusion and reasonable
explanation is that the accused murdered
the deceased by inflicting
one gunshot wound with a Parabellum 9 mm and disposed of the murder
weapon thus defeating the ends of
justice. This was meticulously and
carefully planned. It was executed in a callous manner against her.
This he did because of his
obsession and jealousy he harboured
against the deceased.
[91] I am
satisfied that the State has succeeded in proving the guilt of the
accused beyond reasonable doubt and find
the accused guilty as
charged.
SENTENCE
[92]
The right to life is the most sacred human right enshrined in our
Constitution. It is the only right
from which all rights flow. Should
life be obliterated in any manner, all other rights are worth
nothing. It is for this reason
that the right to life is jealously
guarded and preserved. Any person who infringed this right, it is
incumbent upon the courts
to deal with the transgressors in a firm
and decisive manner. However, whatever sentence I impose on you, it
should be within the
confines of the law and established principles
accepted and applied in the courts throughout the Republic.
[93]
Section 51(2) of Act 105 of 1997 read with Part II of Schedule 2
makes provision for a sentence of
no less than fifteen (15) years for
a first offender. In this case, the accused is liable for fifteen
(15) years imprisonment for
a charge of murder and possession of
firearms respectively. The court can deviate from imposing lengthy
terms of imprisonment only
if there are substantial and compelling
circumstances justifying such deviation.
[94]
I am mindful of the elements of the well-known triad taking into
consideration the interests of society,
the offense and personal
circumstances of the accused. Equally that these elements must be
balanced to ensure that one element
is not unduly accentuated at the
expense of and the exclusion of the other.
[6]
[95]
The accused was born on 30 July 1977. That makes him 41 years and 10
months old. He is unmarried with
two (2) adult children who are still
studying in Johannesburg. His scholastic achievements are Grade 12
and a Diploma in Information
Technology. He appears before this court
as a first offender. He was employed but lost his job. The
substantial and compelling
circumstances were submitted by his
defence counsel as the period he spent incarcerated before his
release on warning. Also that
he was a family man who was maintaining
his children. He is inflicted with incurable diseases and is on
chronic medication. Lastly
that he is a first offender and therefore
an appropriate candidate for rehabilitation.
[96]
Defence counsel argued that the sentence of thirteen (13) years for
count 1, five (5) years for count
2 and two (2) years for count 3
will be appropriate. He submitted that should I decide to impose the
minimum sentence of fifteen
(15) years on count one then all other
sentences should run concurrently with it.
[97]
In aggravation the State Counsel submitted that the taking of life of
defenceless women and children
is prevalent in the area of
jurisdiction of this Court. The deceased was attacked in the
sanctuary of her home. The crime perpetrated
against her was fuelled
by jealousy and obsession. The accused showed no remorse for his
deeds despite taking away the life of
a young mother from her son.
[98]
State Counsel urged me that I should impose a sentence of twenty five
(25) years on count one, five
(5) years on count 2 and three years
(3) on count 3. Effectively a total sentence of twenty five (25)
years. Sentences on both
counts 2 and 3 should run concurrently with
the sentence on count 1.
[99]
The taking away of life of another person is a matter which is
serious in nature. The deceased was
murdered for the sake of it and
mercilessly so. Murder is abhorrent in the democratic society like
ours. The sentences imposed
must reflect society’s indignation
with those who have appropriated to themselves the right to decide
who must live and who
must not.
[100] I take
into consideration that the accused armed himself with a lethal
weapon like a Parabellum 9 mm. He
went to the house of the
deceased and in cold blood shot her. Thereafter in a coward manner
fled the scene only concerned with
how he can extricate himself from
the mess he had just created. She must have bled profusely and
suffered immensely in the process
of losing her life. The accused
also to positive steps to conceal his callous act and did not show
any remorse.
[101]
Sentence must achieve its primary objective which is retribution,
rehabilitation, deterrence and the prevention
of crime. Weighing the
aggravating factors against the mitigating factors, I am convinced
that the accused deserves a much harsh
sentence on count 1. This in
tandem with the dictum of the Court in
S
v Chapman
[7]
that women must be free to enjoy their rights like everybody else
without any hindrance or fear. The right to associate extend
to men
and women alike.
[102] On the
second count, I note that the accused is a first offender who can be
rehabilitated. I am alive to the fact
that prison life is hard and
long. It can easily break the offender. In
S
v Sparks
[8]
the court said the
following:-
“
Punishment
should fit the criminal as well as the crime, be fair to the State
and to the accused, and be blended with a measure
of mercy.
The
learned Judge thought anxiously about a prison sentence. He said -
“
is
this a case for prison or is it not? I must confess that this
question has caused me much anxious thought - I do not think that
in
the 17 years I have been on this Bench I have had to make a more
difficult decision relating to sentence.”
In
the end he regarded it as his duty to the man in the street to impose
a sentence which would deter executive officers from stealing
and
which would protect members of the public who invest their funds in
trust institutions.
”
[103] Therefore, I
conclude that every avenue should be explored to circumvent imposing
and unnecessary long sentence which is burdensome
to the accused.
However the sentence I intend to impose will not be light by any
stretch of imagination. Unfortunately it will
not bring back the
deceased to her family but will bring closure to their long wait for
justice.
[104] I intend to order
that the sentence on count 2 and 3 should run concurrently with the
sentence on count 1. The reason is that
all the crimes committed by
the accused arise out of the same set of facts. Also with a view that
the accused should not be sentenced
to the point of being broken.
Should I not make such an order, it will be a clear indication of
accentuating other elements of
the triad over and above the others.
[105] In the exercise of
my discretion in a judicial manner guided by the principles of
fairness and justice, I deem it appropriate
to impose the following
sentence:-
1.
Count 1 –
Twenty (20) years imprisonment.
2.
Count 2 –
Eight (8) years imprisonment.
3.
Count 3 –
Three (3) years imprisonment.
It is further ordered
that the sentences on both counts 2 and 3 should run concurrently
with the sentence on count 1. The accused
is ordered to serve and
effective term of Twenty (20) years imprisonment.
M. A. MATHEBULA, J
On
behalf of the State: Adv. C
Steyn
Instructed
by:
Department of Public Prosecution
BLOEMFONTEIN
On
behalf of Accused: Mr P van der Merwe
Instructed
by:
Legal Aid
BLOEMFONTEIN
/roosthuizen
[1]
1939 AD 188
at 202 - 203
[2]
1944 AD 492
at 508
[3]
1996
ZASCA 55
(28 May 1996)
[4]
1976 (2) SA 875
(T) at 888H to 889A
[5]
2000 (1) SACR 453
(SCA) at 455A-C
[6]
S v Banda and others 1991 (1)
2 SA 353
(B9) at 355 A-C
[7]
S v
Chapman 1997
(3) SA 341 (SCA)
[8]
S v Sparks
& Another
1972
(3) SA 396
(A) at 410G-H