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[2019] ZAECMHC 53
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S v Letsoho (CC05/2017) [2019] ZAECMHC 53; 2019 (2) SACR 677 (ECM) (19 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION: MTHATHA]
Case No. CC05/2017
In
the matter between:
THE
STATE
And
MOELETSI
LETSOHO
Accused
JUDGMENT
JOLWANA
J
[1]
The accused, Mr Moeletsi Letsoho was charged together with his son
Kekeletso Letsoho and Nyameko Mbobo. They were all
charged with
conspiracy to commit and aid one another in the commission of the
offence of robbery with aggravating circumstances
in contravention of
section 29 of Act 9 of 1983, robbery with aggravating circumstances
in contravention of section 155 of Act
9 of 1983 read with
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
and
murder in contravention of
section 84
of Act 9 of 1983 read with
section 51(1) of the Criminal Law Amendment Act 105 of 1997 (the
Criminal Law Amendment Act)
>[2]
The state later withdrew the charges against Kekeletso Letsoho
following his untimely death. The court was further advised
that the state had withdrawn the charges against Nyameko Mbobo who
had since become a state witness in terms of section 204 of
the
Criminal Procedure Act 51 of 1977 (the Act). This resulted in
Mr Moeletsi Letsoho (the accused) being the only one facing
the above
mentioned charges.
[3]
The accused, who was legally represented throughout the trial,
pleaded not guilty to all the charges and reserved the basis
of his
defence to the charges. He was also warned about the
implications of
section 51(1)
and (2) of the
Criminal Law Amendment
Act in
the event of conviction.
[4]
Nyameko Mbobo (Mbobo) who was a
section 204
witness testified that he
resides at Ramafole location in Mount Fletcher. He knows the
accused from the Mount Fletcher Taxi
Association from the time they
were in the taxi industry as taxi owners. He also knows his
house which is at Tsolobeng Administrative
Area in Mount Fletcher.
[5]
He testified that he owned a taxi which started giving him problems
while he was still paying instalments for it to a financial
institution. He decided to look for someone who would refund
him the deposit he paid when he bought it and also take over
the
instalments. He told his colleagues in the taxi industry in
Mount Fletcher about this decision. Because the accused
was not
present when he made this announcement he called him and also told
him his decision concerning his vehicle. This
was about June
2016.
[6]
The accused told him that he knew of a person in Lesotho who might be
interested in the vehicle. They then made arrangements
to go to
Lesotho. They proceeded to Letsoho but the said person was not
really interested in the vehicle. He decided
to return to South
Africa leaving his vehicle in Lesotho with the accused. On his
return to Lesotho he met with the accused
who told him that his
cousin John Letsoho (John) was interested in the vehicle. He
and the accused went to see John who offered
to buy the vehicle for
R35 000.00 and an agreement was reached about the sale. He
thereafter returned to South Africa
leaving the accused in Lesotho.
[7]
After some time the accused told him that he had since returned to
South Africa and wanted him to accompany him to Lesotho for
a reason
that was not disclosed. He agreed to go with the accused to
Lesotho as he was not doing with anything after he had
sold his
vehicle. The following day at about 5.00 in the morning the
accused picked up him at a tarred road near his homestead
where he
had waited for him as previously arranged. The accused was
driving a quantum taxi vehicle and he got into the vehicle
and sat at
the front passenger seat. Mbobo asked the accused as to whose
vehicle that was and the accused said the vehicle
belonged to Mandla
whom he knew. He asked the accused where Mandla was and the
accused said Mandla was in the vehicle.
[8]
The accused then remarked that he should not ask too many questions
and that they must leave. They left proceeding towards
Mount
Fletcher. Because it was still early in the morning and it was
dark inside the vehicle, he could not see if Mandla
was indeed inside
the vehicle. As they were going he asked the accused how he got
the vehicle from Mandla. The accused
responded in Sesotho
saying “ke-monwele or ke monwesetse” which means he drank
him when loosely translated from Sesotho
a language in which he is
not proficient. As they proceeded in the direction of Mount
Fletcher, at some point they turned
and proceeded towards the farms
in Maclear and drove for a short distance into a certain junction on
a gravel road where the vehicle
stopped.
[9]
The accused then said that they must take Mandla out of the vehicle.
He then assisted the accused in offloading Mandla
from the vehicle.
As they took Mandla out of the vehicle he was wrapped in a blanket.
They took him and put him in
culvert. He seemed to be dead
although he did not see his face. After putting Mandla in that
culvert, they drove back
joining the tarred road in the direction of
Maclear.
[10]
They arrived in town in Maclear and stopped at a fuel filling station
where the accused refuelled the vehicle. He was
sent by the
accused to buy water after which they proceeded towards Ugie past
Elliot towards Barkley East. On the way he
was asked by the
accused to wash the deceased’s blood that was in the vehicle
and he did so. They proceeded towards
Sterkspruit and somewhere
in that route, the road was closed by protesters which forced them to
turn back and use a different route.
They drove until they
reached the border between South Africa and Lesotho. They drove
into Lesotho until they reached John
who gave them money, a sum of
about R35 000.00 for the vehicle.
[11]
Thereafter they both proceeded to Maseru where they slept for that
night. The following day he hitch hicked to Rustenburg
in
Gauteng to look for a job leaving the accused in Maseru. Less
than a week after his arrival in Rustenburg, his father
called him
saying that police were looking for him. He returned home in
Mount Fletcher and his father accompanied him to
Maclear Police
Station where he was arrested and detained.
[12]
Under cross examination Mbobo largely confirmed his
section 204
statement as well as his evidence in chief in every material
respect. It was put to him that he is the one who asked the
accused to accompany him to Bloemfontein to buy some traditional
Sesotho cultural clothing which he was going to sell. He
disputed this insisting that he never planned to go to Bloemfontein.
He also disputed that he had hired the vehicle which
was ordinarily
driven by the deceased for the Bloemfontein trip. He denied
buying liquor which was then consumed by the since
deceased Kekeletso
Letsoho, the deceased and the accused and testified that he did not
even drink liquor.
[13]
It was also put to Mbobo that the deceased arrived at the house of
the accused with the liquor and at some stage after drinking
it with
the accused and Kekeletso, the accused decided to go to his bedroom
to sleep. When he went to sleep he left the deceased
with
Kekeletso watching TV. At about 2:00 in the early hours of the
following morning the accused was woken up by his late
son Kekeletso
telling him that the deceased had fallen on the verandah and was
bleeding from the nose. The accused woke up
and tried to assist
the deceased thinking that the nose bleeding would stop. He
took the deceased to a bedroom which had
been prepared for him.
Both the deceased and Kekeletso were visibly drunk. Mbobo
disputed all of this version of the
accused indicating that he was
not at the accused home and would not know what happened there.
[14]
It was further put to him that at about 3:15 in the morning he called
the accused asking where he was as they had agreed to
leave at 3:00.
The accused then told him that the deceased had fallen and was
injured and he was preparing to take him to
the doctor. Mbobo
told the accused that he should not take the deceased for medical
attention as he would do so himself.
Mbobo later arrived at his
homestead in a sedan vehicle with two other men who were unknown to
him. The accused then assisted
Mbobo in taking the deceased
from the room into the quantum vehicle of the deceased.
[15]
The two unknown men left in the said sedan vehicle and Mbobo followed
them in the quantum vehicle of the deceased leaving the
accused at
his homestead. At that time the deceased had no injuries except
for bleeding from his nose and that was the last
time that the
accused saw the deceased. At about 10:00 that morning Mbobo
arrived again at the homestead of the accused in
that sedan vehicle.
Mbobo told the accused to prepare for the Bloemfontein trip and
further told him that the deceased had
been admitted in hospital.
Mbobo denied all of these events pointing out that he would not know
what happened at the home
of the accused as he was not there and
disputed all of the things he was said to have done or said.
[16]
It was further put to Mbobo that both he and the accused boarded the
sedan vehicle which Mbobo then drove to Maclear where
they found the
deceased‘s quantum vehicle. Mbobo took the quantum
vehicle and drove with him going to Bloemfontein
with the accused.
On the way Mbobo told him that they would start in Lesotho before
they went to Bloemfontein as he needed
to get his balance of the
purchase price for his own taxi vehicle which he had sold in
Lesotho. When they arrived in Lesotho
Mbobo told him that he
would be selling the quantum vehicle they were driving. At that
time the accused did not know that
the deceased had died. Mbobo
denied all of this version of the accused.
[17]
It was further put to Mbobo that indeed the accused knew some people
in Lesotho and he did assist Mbobo in selling the vehicle
and he paid
the accused R1000.00 for his assistance, Mbobo also denied this.
After the vehicle was sold they spent the night
at a certain B &
B in Maseru. In the morning Mbobo disappeared leaving the
accused in Maseru. Mbobo confirmed sleeping
in Maseru but
denied the rest of the accused’s version. It was also put
to Mbobo that the accused did not know the
place at which the body of
the deceased was found. Furthermore Mbobo was able to give the
description that he gave about
where the deceased’s body was
found because he, Mbobo was the person who dumped it there without
the knowledge of the accused.
Mbobo confirmed that indeed he
knew where the body was found because he was with the accused when
the body of the deceased was
dumped there.
[18]
Admissions in terms of
section 220
of the
Criminal Procedure Act were
handed up by agreement between the parties. The said admissions
signed by the accused and his legal representative read as
follows:
“
I,
Moeletsi Tsoho hereby make the following admissions in terms of
section 220
of the
Criminal Procedure Act 51 of 1977
.
THAT
1. The person
referred to as the deceased in this document and in the case
generally, is indeed the person mentioned
in the indictment to wit,
Mandlakapheli Sitshinga, an adult male person, and his body was at
all times and occasions correctly
identified as such;
2. The deceased
person died on 14 June 2016 at or near Tsolobeng Administrative Area
in the district of Mt Fletcher
as a result of Head Injury,
Intracranial Bleeding and Brain Tissue Injury.
3. The deceased’s
body did not sustain any injuries from the time it was removed from
Coldstream farm in
Maclear where the body of the deceased was found,
until Dr LL Mjamba performed a medico-legal post mortem examination
on the body
on the 17 June 2016.
4. The post-mortem
report marked DR 172/2016 completed by Dr LL Mjamba is true and
correct in all its contents,
including observations, findings and
conclusion stated therein.
5. The post-mortem
report will be admitted as exhibit “D”.
6. The photo album
depicting the scene of crime as well as the place where the deceased
was found abandoned and
keys thereto as compiled by W/O Nxesi and W/O
Sidinile as well as their contents are admitted as true and correct.
7. These photo
albums and keys thereto will be admitted as exhibits “E1”
and “E2” respectively.”
[19]
Mr Mongezi Dingalibala (Dingalibala) testified that he is a taxi
owner and he knew the deceased very well as the deceased was
his
driver in respect of his quantum taxi vehicle with registration
letters and numbers FYN 987 EC. On the 9 June 2016 the
deceased
took the said quantum taxi vehicle for a special trip to Ugie which
was scheduled for the 10 June 2016. He called
the deceased at
08:00 in the morning on 10 June 2016 to check on how the trip was
going. When he could not get through to
the deceased, he waited
hoping that the deceased would return his call but he did not.
In the afternoon at about 15:00 he
called the deceased again but
still he could not get through.
[20]
Dingalibala then decided to ask the deceased’s brother to
assist in getting through to the deceased may be through some
other
number. This also did not help. The following day he
searched for the deceased also assisted by other taxi owners
going as
far as Matatiele, Kokstad and Mount Ayliff, all in vain. He
also reported this situation to the police at Mount
Fletcher Police
Station. On Tuesday the following week he received a call from
the rank manager at their taxi rank telling
him that a dead person
had been found at Maclear. He later received a call from
Bulelani Sitshinga who is the brother of
the deceased telling him
that the body of the deceased had been found in Maclear.
[21]
As he was busy with funeral arrangements he received a call from
Maclear police station telling him that his vehicle had been
found in
Lesotho and he needed to go to Lesotho with an insurance official to
confirm if indeed it was his vehicle. He and
Mr Van Der Merwe
from the insurance company went to Lesotho, where he found the
vehicle and identified it positively as his vehicle.
The
insurance company settled his insurance claim. He confirmed
that this is the same vehicle with registration numbers and
letter
FYN 987 EC which had been taken by the deceased on the 09 June 2016
for a special trip.
[22]
Warrant officer Mongezi Nxesi testified that he is based at Maluti
Criminal Record Centre and has been working for the SAPS
for thirteen
years, twelve years of which have been in the Criminal Record Centre
environment attending crime scenes, taking photographs
and collecting
exhibits and doing other record centre duties. On 17 June 2016
he attended a crime scene in Tsolobeng in Mount
Fletcher at a certain
homestead. In one of the bedroom in that homestead he observed
blood in different places and took photographs.
[23]
In that bedroom he observed possible bloodstains on the wall, the
headboard, the pillow. Possible blood was also found
from the
red blanket in between the matress and the base of the bed which he
described as a pool of blood. He turned the
matress upside down
and found possible blood on the matress. Using evidence
collection kits he took samples of the possible
blood and sealed them
in the normal way. The swabs were sealed individually and
placed inside a forensic bag and were eventually
sent to their Port
Elizabeth forensic science laboratory for DNA analysis.
[24]
It is common cause that the homestead at which warrant officer Nxesi
attended a crime scene and took samples of possible blood
for DNA
analysis is that of the accused. The chain evidence was not
disputed nor were the methods, handling and the sealing
of the
collection kits questioned. The DNA biology report confirmed
that the possible blood from the wall inside the bedroom
and the
possible blood from a blanket under the matress was the blood of the
deceased Mandlakapheli Sitshinga.
[25]
The next state witness was Maria Elizabeth Pretorius (Pretorius) an
employee of Tracker Connect, a vehicle tracking company
based in
Johannesburg where she is employed as an investigator. She
testified that her company assists the South African
Police Service
with investigations in respect of cases in which the vehicles are
fitted with her company’s tracking equipment.
She gave
evidence regarding the tracking report of the vehicle with
registration letters and numbers FYN 987 EC which in their
tracking
system is registered as belonging to Dingalibala.
[26]
She testified that on 9 June 2016 at 20:52 the ignition of the
vehicle was switched off 1.5 kilometres North West from Braki
and 3.2
kilometres North West of Mount Fletcher. It is common cause
that the place at which the ignition was switched off
is the
homestead of the accused and the said vehicle did not leave that
homestead until the 10 June 2016. The ignition was
switched on
for the first time on the 10 June 2016 at 03:31 in the morning at the
same place where it had been switched off.
This confirms that
the vehicle spent the night at that place. It started moving at
04:31 from Tsolobeng on the R56 road until
it stopped for about three
to four minutes at 05:33 with the ignition still on, on the DR03209,
6,4km South from Ntatyaneni and
10,3km North East from Sonwabile.
This, according to the evidence of the state, is where the body of
the deceased was dumped
in a culvert at Coldstream farm.
[27]
From that point the vehicle started moving again until it stopped on
the R56 road in Maclear at 05:49 at a filling station
where it moved
again at 05:58 having spent about 9 minutes there. Thereafter
the vehicle moved, stopping and moving at different
places until the
ignition was switched off at Quthing in Lesotho at 15:08 after having
crossed Tele Bridge Border post into Lesotho.
She testified
that their system is only able to track a vehicle into Lesotho up to
a certain point after which the signal is lost.
[28]
The last state witness who gave significant evidence is Dr Mjamba,
the pathologist who examined the body of the deceased and
prepared
the post-mortem examination report. He testified that on 17
June 2016 he conducted an autopsy on the deceased.
His chief
post-mortem findings were that the deceased was assaulted and
sustained multiple scalp lacerations, depressed skull fractures
occiput and frontal bone, brain tissue injury and intracranial
bleeding. The cause of death was head injury, intracranial
bleeding and brain tissue injury.
[29]
He testified that the bleeding from the nose and ears was because
blood vessels were lacerated. He explained that when
arteries
are lacerated the person bleeds heavily and the blood spits because
of the pressure from the heart and it sprays or spreads.
Therefore the blood in that room, on the walls and in the blanket and
matress could not have come from nose bleeding or epistaxis.
It
was bleeding caused by the fractured skull. After Dr Mjamba’s
evidence the state closed its case.
[30]
Mr Sakwe who appeared for the accused made an application for the
accused to be discharged in terms of
section 174
of the
Criminal
Procedure Act in
respect of counts 1 and 2 being conspiracy and
robbery with aggravating circumstances. In respect count 1,
conspiracy he
submitted that there was no evidence by the state that
the accused conspired with anybody to commit any offence.
Furthermore,
the evidence by Mbobo, the
section 204
witness was
clearly that of somebody who completely disassociated himself with
any of the criminal activities with which the accused
has been
charged. There was also no evidence which would or could prove
robbery as there was no evidence of robbery having
been committed
before the deceased was killed.
[31]
Mr Pomolo counsel for the state opposed the application. With
regard to the charge of conspiracy his submission was that
the
accused might have conspired with somebody in South Africa or Letsoho
where the vehicle was eventually sold. With regard
to robbery
he submitted that the evidence of the state was that the deceased was
at the accused’s homestead where he suffered
a fractured skull
from an assault with an object. Thereafter the vehicle was
driven by the accused to pick up Mbobo after
which the deceased’s
body was dumped at Maclear and the vehicle travelled to Lesotho where
it was sold. Therefore clearly
the deceased was killed to rob
him of his vehicle.
[32]
I granted the
section 174
application in respect of the count of
conspiracy. I agree with Mr Sakwe that there was just no
evidence of conspiracy given
by any of the state witnesses. To
say that the accused might have conspired with somebody in South
African or Lesotho when
there was no evidence of conspiracy at all is
to enter into endless and dangerous speculation fraught with many
possibilities.
That in my view is totally impermissible in our
law. The refusal of the application for the discharge of the
accused would
be on the basis that in his evidence, if the accused
chooses to testify, might incriminate himself. However, when it
comes
to robbery, the evidence of the state is that after the
deceased was killed his vehicle left the homestead of the accused,
picked
up Mbobo on the way to dump the body of the deceased. It
thereafter proceeded to the Lesotho where it was sold by the
accused.
I refused the
section 174
application in respect of
the robbery count because in my view there was evidence on which the
accused could be convicted.
[33]
The accused testified in his defence. He testified that he was
asked by Mbobo to assist him in selling his vehicle as
he could no
longer afford to pay the instalments. He told Mbobo that he
knew John, a relative of his who normally buys damaged
vehicles,
repairs them and thereafter sells them. He did not know if John
would be interested in Mbobo’s vehicle as
it was not a damaged
vehicle. He spoke to John who said that the vehicle should be
brought to him in Lesotho so that he could
see it. He
thereafter gave Mbobo John’s contact details to enable him to
speak to John directly. Thereafter Mbobo
arranged for the two
of them to take his vehicle to John in Lesotho.
[34]
On their arrival in Lesotho they met John who inspected the vehicle.
John and Mbobo discussed the matter inside the vehicle
while he was
outside and agreed on the sale of Mbobo’s vehicle. He
could see from the outside, money being counted
by the two men.
Thereafter Mbobo told him that they should leave. They left and
spent the night at a B & B in Lesotho
where Mbobo gave him
R1000.00 as a token of appreciation for his assistance. The
following morning they both returned to
their respective homes in
South Africa.
[35]
Some two to three weeks later he received a call from Mbobo asking
him to accompany him to Bloemfontein where he wanted to
buy Sesotho
traditional attire because he wanted to open a business of selling
the Sesotho traditional attire. Mbobo came
to his homestead
accompanied by his wife and children to beg him to accompany him to
Bloemfontein as he had initially refused.
He even requested him
to also accommodate the deceased for the night as he was also going
to go with them to Bloemfontein.
Eventually he reluctantly
agreed. Mbobo and his family left saying he would phone him in
the morning.
[36]
The deceased whom he had been requested to accommodate also arrived
that night with lots of alcohol which he said had been
bought by
Mbobo. He, the deceased and Kekeletso, his son consumed the
alcohol. He drank only one glass after which
he went to bed
leaving the deceased and Kekeletso drinking. A room had been
prepared for the deceased to sleep in.
[37]
At about 1:00 in the morning Kekeletso woke him up telling him that
the deceased had fallen on the edge of the verandah.
He got up,
went to the verandah and found the deceased having fallen on his
forehead. He and Kekeletso lifted the deceased
up causing him
to sit up. He instructed Kekeletso to fetch a blanket to cover
the deceased as it was cold. Kekeletso
brought the blanket and
he covered the deceased after which they took him into the bedroom
that had been prepared for him.
He could see that the deceased
was heavily intoxicated and his knees could not carry him. They
put him on the bed and he
realized that the deceased was bleeding
severely from the nose. The deceased was at that stage in
severe pain.
[38]
After the nose bleeding stopped he left that room to bath water for
himself in preparation for the Bloemfontein trip.
After taking
the bath he asked Kekeletso to remain with the deceased while he left
to make himself coffee. After drinking
his coffee he returned
to the bedroom in which the deceased was and found him still bleeding
from the nose. At that stage
Mbobo phoned him saying he was
waiting for him and the deceased for the Bloemfontein trip. He
then told Mbobo about the deceased’s
condition and that he
intended to take him to hospital.
[39]
Mbobo said he was coming and would himself take the deceased to
hospital. Indeed Mbobo arrived in a white sedan with
two other
unknown men. He and Mbobo helped the deceased into the quantum
taxi vehicle in which the deceased had arrived the
night before and
Mbobo took the deceased away saying he was taking him to hospital.
The two unknown men also drove away in
the sedan and he remained
behind at his homestead. He testified that save for the nose
bleeding the deceased had no visible
injuries. Furthermore he
did not see any blood splattered on the wall in that bedroom, in the
bed or on the matress.
The only blood that was there would have
been from the nose bleeding and it was not much.
[40]
Mbobo returned to his homestead just after 08:00 that morning in the
same white sedan saying they should leave for Bloemfontein
and told
him that the deceased had been admitted to hospital. The two of
them travelled to Maclear where they found the quantum
vehicle
standing and they boarded it with Mbobo driving. They drove
until at some point he realized that they were not on
the way to
Bloemfontein. When he asked Mbobo, the latter said he was owed
a balance of the purchase price by John and they
were going to
Lesotho to get it. When they got to a certain garage in Lesotho
Mbobo phoned John who arrived and took them
to his brick making
business and asked them to wait for him there and he left.
[41]
John later returned with another man and took Mbobo aside, they
talked after which John, Mbobo and the other man left him there.
After the three men returned, Mbobo indicated to him that they should
go back home. He asked Mbobo if he was leaving the vehicle
there and
he said he should not ask too many questions. The two of them
left for Maseru leaving the quantum vehicle there
and spent the night
at a B & B in Maseru. Mbobo gave him R1000.00 thanking him
for assisting in driving to Lesotho.
In the morning he thought
Mbobo had gone to take a bath but later realized that he had left him
there.
[42]
He also woke up and left for Sterkspruit where he phoned his daughter
Kedibone who was in Cape Town who told him that she had
been admitted
to hospital as she was pregnant. He then decided to go to Cape
Town. On his arrival in Cape Town he phoned
his son Kahelo who
told him that his daughter had given birth. He then phoned his
daughter who told him that his mother had
called her saying that the
police were looking for him back home. He returned home in
Mount Fletcher where he asked his brother
Mkgerebe Tsoho to accompany
him to the police. Eventually they went to Maclear police
station where he was arrested and detained.
[43]
He denied taking the vehicle from the deceased and denied assaulting
the deceased. He categorically denied robbing the
deceased of
the vehicle and killing the deceased describing Mbobo’s
evidence as lies. He testified that the quantum
taxi vehicle
which was in possession of the deceased was driven by Mbobo from his
homestead when he left with the deceased who
was alive saying he was
taking him to hospital. He saw that vehicle again at a filling
station in Maclear after he had been
fetched by Mbobo from his
homestead in a sedan vehicle. He described Mbobo’s
version of events as lies.
[44]
Under cross examination he changed his initial evidence that the
deceased had fallen on a verandah at his homestead where he
found him
after being woken up by his son Kekeletso. He pointed at a
different place as being the place where he found the
deceased having
fallen there. When he found the deceased there he could not
walk and was staggering but he did not notice
any injuries save for
the small amount of blood where he had fallen. He disputed
telling his legal representative that the
deceased had sneezed
causing the blood to be on the wall in that bedroom. He
maintained that he did not see any blood on
the wall in that
bedroom. He could not explain the pool of blood that was found
under the matress in the red blanket.
He, however conceded that
it could not have come from nose bleeding.
[45]
When it was pointed out to him that according to the tracker system
and the evidence of Pretorius from the tracking company,
at 08: 08 on
the 10 June 2016 the vehicle had gone past Barkely East on the R58
about 10.5 kilometres from Harringmelspruit.
Therefore Mbobo
could not have been at his homestead at or after 08:00 if he was in
that vehicle. At 09:57 the vehicle was
at Somerset Street on
the N6 in Aliwal North. Therefore between 08:00 and 10:00 Mbobo
could not have been at his homestead
at Tsolobeng to fetch him.
He then changed hid version and said that he was now admitting the
allegations against him.
He clarified that he was in fact
admitting to the murder of the deceased Mandlakapheli Sitshinga.
[46]
He testified that he had been instructed by Mbobo to kill the
deceased. However, Mbobo was not present when he killed
the
deceased. He testified that he killed the deceased at his
homestead by hitting him with a knob stick three times although
it
might have been more. He testified that he picked up Mbobo at
Ramafole stop that morning and they drove towards Maclear
and dumped
the body of the deceased at a culvert. He confirmed that the
blankets with which the deceased’s body was
wrapped as depicted
in the photo album were his blankets.
[47]
He testified that the deceased did come to his homestead that night
to sleep there for a trip to Bloemfontein which they were
going to
take with Mbobo. His agreement with Mbobo was that he alone
would kill the deceased, load him in the quantum vehicle,
pick up
Mbobo and that the two of them would together go and dump the body.
In loading the body of the deceased in the quantum
vehicle he was
assisted by his son Kekeletso although Kekeletso was not involved in
planning the murder. He had to ask Kekeletso
to assist him in
loading the body of the deceased because he could not do it alone.
He confirmed that he is related to John
and that the vehicle was sold
in Lesotho. However, it is Mbobo who got the money. He
further said that all his evidence
about his daughter Kedibone giving
birth in Cape Town was a lie. He went to Cape Town to see his
children not because Kedibone
had given birth or was in hospital.
He also testified that he had lied when he said that the deceased had
fallen on the verandah
outside the house and said the deceased did
not die accidentally but was killed by him. After his evidence
the defence case
was closed.
[48]
The accused’s version as put to state witnesses and the version
he placed before court when he gave his evidence in chief
was
admittedly and evidently a concoction of lies. Under cross
examination he also confirmed that he had lied in several
respects
going as far as admitting the fact that he alone murdered the
deceased. He could not explain the inconsistencies
in his
version and ultimately admitted to the murder of the deceased.
Furthermore he found himself unable to explain his
earlier version
that he had been fetched by Mbobo from his homestead after 08:00 on
the 10 June 2016. This was after he was
confronted with the
evidence of Mrs Pretorius from the tracker company that the vehicle
was many kilometres away from Mount Fletcher
in the Barkley East
area. It was at this stage that he did not just contradict
himself but he literally recanted his earlier
version and admitted
that he single handedly murdered the deceased saying this was part of
his plan with Mbobo and that they together
dumped the body of the
deceased in a culvert at Maclear. Thereafter they proceeded to
Lesotho where the vehicle of the deceased
was sold through his
relative John Tsoho.
[49]
There may therefore have been a planning or conspiracy to murder the
deceased if his evidence is to be given any credence in
this regard
given that there were so many lies that it is difficult to tell where
the lies end and the truth begins. I must
mention that the
naivete of Mbobo in the whole thing is bewildering if not
bothersome. He had so many opportunities to extricate
himself
from the murder and robbery and report the matter to the police.
He however, did not do so or even return home.
He went to
Gauteng to look for a job. However his naivete or even
stupidity or cowardice does not make him a lier in so far
as he gave
evidence as a
section 204
witness. His evidence that he became
afraid of the accused might very well be true. At worse he was
an accessary after
the fact in these crimes. Therefore he is
granted indemnity from prosecution in terms of section 204 of the
Act.
[50]
The fact that the accused, after having been discharged in respect of
the count of conspiracy later admitted to this offence
as well calls
for further comment on section 174. This section reads:
“
If
at the close of the case for the prosecution at any trial, the court
is of the opinion that there is no evidence that the accused
committed the offence referred to in the charge or any offence of
which he may be convicted on the charge, it may return a verdict
of
not guilty.”
[51]
This section was considered and explained authoritatively in
S v
Lubaxa
2001 (2) SA 703
(SCA) in which Nugent AJA, as he then was,
said:
“
[18] I have no doubt that an
accused person (whether or not he is represented) is entitled to be
discharged at the close of the
case for the prosecution if there is
no possibility of a conviction other than if he enters the
witness-box and incriminates himself.
The failure to discharge
an accused in those circumstances, if necessary
mero motu
, is,
in my view, a breach of the rights that are guaranteed by the
Constitution and will ordinarily vitiate a conviction based
exclusively upon his self-incriminatory evidence.
[19]
The right to be discharged at that stage of the trial does not
necessarily arise, in my view, from considerations relating
to the
burden of proof (or its concomitant, the presumption of innocence) or
the right of silence or the right not to testify,
but arguably from a
consideration that is of more general application. Clearly a
person ought not to be prosecuted in the
absence of a minimum of
evidence upon which he might be convicted, merely in the expectation
that at some stage he might incriminate
himself. That is
recognised by the common-law principle that there should be
‘reasonable and probable’ cause
to believe that the
accused is guilty of an offence before a prosecution is initiated
(
Beckenstrater v Rottcher and Theunissen
1955 (1) SA 129
(A)
at 135C-E), and the constitutional protection afforded to dignity and
personal freedom (s 10 and s 12) seems to reinforce it.
It
ought to follow that if a prosecution is not to be commenced without
that minimum of evidence, so too should it cease when the
evidence
finally falls below that threshold. That will pre-eminently be
so where the prosecution has exhausted the evidence
and a conviction
is no longer possible except by self-incrimination. A fair
trial, in my view, would at that stage be stopped,
for it threatens
thereafter to infringe other constitutional rights protected by s 10
and 12.”
[52]
Therefore the fact that when he was confronted with the evidence of
the state during cross examination the accused ended up
admitting
also in respect of the charge of conspiracy for which he was
acquitted at the close of the state’s case does not
entitle the
court to revisit its earlier decision to discharge him in our law.
The decision to acquit him of conspiracy was
correct at the time the
state closed its case. Not discharging him at that stage when
there was no evidence on which he could
be convicted would have been
on the hope that he might incriminate himself. This is clearly
impermissible as it indirectly
shifts the burden of proof to the
accused who bears no such burden.
[53]
This, in my view, is what in essence the Supreme Court of Appeal’s
decision in
Lubaxa
is all about. The public outcry for
justice in serious and violent crime which is rampant and even
uncontrollable in our
country is clearly no basis to revisit our law
in these situations. It if it must be revisited, then only the
legislature
can do so and some might say the legislature should do
so. However, it is not up to the courts to do so in as much as
the
courts agree with the public’s view that crimes must be
punished and criminals held to account for all their criminal
activities.
[54]
This reminds me of the views expressed in this Division on
constitutionalism. In
S v Nombewu
1996 (2) SACR 396
(E)
the court said:
“
The court should in fact
endeavour to educate the public to accept that a fair trial means a
constitutional trial and vice versa.
Pronouncements on human
rights by the Court and academics obviously add body to the
jurisprudence which surrounds the Constitution.
But abstract
statements of law very often mean different things to different
people and very little to the bereaved and the aggrieved
who see
factually guilty accused go free in consequence of some infringement
of his constitutional rights by officials. It
is therefore the
duty of the courts in their everyday activity to carry the message to
the public that the Constitution is not
a set of high minded values
designed to protect criminals from their just deserts: but is in fact
a shield which protects all citizens
from official abuse. They
must understand that for the courts to tolerate invasion of the
rights of even the most heinous
criminal would diminish their
constitutional rights. In other words, the Courts should not
merely have regard to public opinion,
but should mould people’s
thinking to accept constitutional norms using plain language
understandable to the common man.”
[55]
This case is one of very rare instances in which, after having been
discharged in terms of section 174, an accused person later
admits to
the crime. However, an acquittal in terms of section 174 is the
end of the matter. Later admissions or even
confessions do not
and cannot result in the court changing and convicting the accused
based on his own clear admissions.
The temptation to appease
public outcry must be resisted at all costs as our law, at least as
it currently stands, and does not
allow for public sentiments in such
situations to be taken into account.
[56]
Therefore, in respect of counts 2 and 3, robbery with aggravating
circumstances and murder, the state has proved its case beyond
reasonable doubt. The accused is found guilty as charged in
respect of these counts.
________________________
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the State: L POMOLO
Instructed
by: NDPP
MTHATHA
Counsel
for the Accused: M SAKHWE
Instructed
by: LEGAL AID BOARD
MTHATHA
Matter
heard on: 16 August 2019
Judgment
handed down on: 19 September 2019