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[2017] ZANCHC 29
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S v Mosholodi and Another (K/S30/16) [2017] ZANCHC 29 (20 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
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HIGH
COURT OF
SOUTH AFRICA
[NORTHERN
CAPE HIGH
COURT, KIMBERLEY]
Case
No:
K/S 30/
16
Heard:
20-02-2017
-
03/03/
2017
Delivered:
20-03-2017
In
the ma tter between:
THE
STATE
v
MOTLHOLO
MOSHOLODI
Accused
1
FREDDIE
BAOBUSI
MOLEME
Accused
2
JUDGMENT
Lever
AJ
1.
I
n
this
matter
accused
1
,
Motlholo
Mosholodi
and
accused
2
Freddie
Gaobusi
Moleme,
both
face
two
charges.
The
first
charge
faced
by them
is
a
charge
of
robbery
with
aggravating
circumstances
to
which
the
provisions
of
the
Minimum
Sentence
Act
[1]
were
referred
to as being
applicable.
The
second
charge
they
face
is
for
the
murder
of
Freddie
Kgositsile
Lebona,
again
the
provisions
of
the
Minimum
Sentence
Act
and
more
particularly
the
provisions
of
s51(1) were
referred
to
as
being
applicable.
2.
Accused 1pleaded not guilty to charge 1, the robbery charge . On this
charge, he did not make a statement explaining
his plea. Through the
interpreter, it was established that the provisions of the Minimum
Sentence Act and its consequences should
a conviction follow was
explained to him.
3.
Accused
1
pleaded
guilty
to
charge
2,
the
charge
of
murder.
A
written
plea
explanation
under
the
provisions
of
s
1
1
2(2)
of
the
Criminal
Procedure
Act
[2]
(CPA)
was
handed
up.
Accused
1
identified
and
confirmed
his
signature
on
the
relevant
statement.
4.
He also confirmed that the facts set out in such statement were
correct. However, through the interpreter he stated
that he did not
intend to kill the deceased. The court asked him to explain that
statement. He replied that his intention was to
injure the deceased.
The court then asked him if that was his intention at a particular
time and did his intention change at any
stage. To which accused 1
replied that when he hit deceased with the two beer bottles his
intention was just to injure the deceased,
but that later that
evening at a place called Marikana his intention changed and from
there on he intended to kill the deceased.
5.
The said plea explanation was read into the record. The State did not
accept this plea and indicated that by way
of the evidence available
to it, it intended to prove that the murder was pre-meditated or pre
planned and that it intended
to show that the provisions of s 51(1)
of the Minimum Sentence Act were applicable.
6.
Accused 1's counsel, Mr Sethotho and accused 1, were asked if the
statement made by him under the provisions of s
112(2) of the CPA
could be regarded as formal admissions in terms of s 220 of the CPA.
Accused 1 agreed to the contents of his
statement made under s 112(2)
of the CPA being accepted as formal admissions under s 220 of the
CPA. The said statement was marked
exhibit "A".
7.
Accused 2 pleaded not guilty to both charges and indicated that he
would not provide a plea explanation at that stage.
8.
At the outset, Ms Van Heerden, who appeared for the State asked the
court to place on record that the State intended
to rely on the
doctrine of common purpose on both charges. The court enquired
whether the doctrine of common purpose was explained
to both accused
and whether they understood its significance. Both accused indicated
that they understood .
9.
The admissions made by accused 1 are relevant to the case against him
and circumstances dictate that I quote the
substance of such
statement verbatim. It reads:
"1.
I am a 27 year old male person, a South African citizen residing at
no [....] M, V. in Jan Kempdorp.
2.
I am the accused person in this matter and I understand the charges
against me.
I also confirm that the provisions of the Minimum
Sentence Act were explained to me by my legal representation. I make
this statement
freely and voluntarily in my sound and sober senses
without being unduly influenced thereto.
3.
I plead guilty to the charge of murder
as
put to me by the state.
4.
The following is a brief explanation of my plea :
4.1
On the night in question I was at Chesanyama drinking liquor in the
company of accused 2.
While enjoying myself one Nzimeni quarrelled
with me he had a bottle of beer bottle (sic) and a knife and he
wanted to attack me.
Iran away, him and the deceased in this matter
chased me. The deceased stabbed me on my left thigh with a knife.
4.2
Iran away and then returned to the tavern after some time. Then I
bought myself 2 beers
(750ml). I wanted to assault the deceased with
the beer bottles; however accused no 2 said I should not fight him
inside the tavern.
Then we went outside and drank our beer outside.
4.3
The tavern closed past 2 in the morning. I saw the deceased coming
out of the tavern.
I then approached him and assaulted him with the
two beer bottles on his head. My aim at that moment was only to
injure the deceased
and not to kill him. Accused no 2 then intervened
and said I should not assault him there, but instead we should go and
kill him.
4.4
We then dragged him to a place called Marikana, which is in Jan
Kempdorp. When we got to
Marikana we started stabbing him. After
stabbing the deceased we dragged him to the quarry. We threw him
inside the water and we
used scrap metal and stones to conceal his
body.
4.5
I was under the influence of alcohol, but I was still in a position
to distinguish
between right and wrong.
5.
The identity of the deceased is hereby admitted.
6.
The post-mortem results and the cause of death are also admitted.
7.
I knew my actions were unlawful and punishable before a Court of Law.
I also
knew that my actions were wrongful.
8.
I had the direct intent to kill the deceased due to the number of
stab wounds
that we (myself and accused no 2) inflicted on the
deceased.
9.
I am sorry for what I did to the deceased and I ask for forgiveness
from the
deceased's family and the Honourable Court."
10.
During the course of the trial, both accused made certain other
formal admissions in terms of s 220 of the CPA, which were signed
and
handed up as exhibits "E" and "F". Both accused
confirmed their signatures and confirmed the admissions
made in the
respective documents. The content of each of these documents is
identical and the substance of such admissions reads
as follows:
"1.
I admit that the deceased in this matter is Freddie Kgositsile
Lebona,
also known as and referred to as Diego.
2.
I admit that the deceased died on the 21 November 2015 at M, V., in
the district
of Jan Kempdorp.
3.
I admit that the deceased sustained no more injuries from the time
his body was
removed from the water hole, known as the 'gwarry', at
Masakeng on 21 November 2015 up until the time that a post-mortem was
performed
by Dr Fouche on 24 November 2015.
4.
I admit that the post mortem performed on the body, marked as
Hartswater 113/2015,
is that of the deceased, Freddie Kgositsile
Lebona.
5.
I admit that the statement by Constable Goitseone Matlawe, as well as
the photos
and key to the photos (which form part of the
photo-album), is correct and that it portrays the scene and items,
depicted in the
photos, as found by the witnesses. This photo-album
which had been provisionally admitted by the Court as
Exhibit "C"
can therefore be formally admitted
into evidence."
11.
The State called 12 witnesses, namely: Steven Tebogo Mosholodi
(referred to as Steven in the evidence); Tumelo Andries Mali;
Titus
Thabo Ditaukise Dube (referred to as Dube in the evidence); Joseph
Nzimeni Nyakama (referred to as Nzimeni in the evidence);
Stella
Mali; Dr Lamaine Fouche (the pathologist); Constable Thamsanqa Berry
Molo; Constable I Itumeleng Michal Makgaoane;
Warrant Officer Willem
Kok; Captain Gaerediwe Annah Makame; Lerato Lebone; and Constable
Mothlaba Afrika Futha.
12.
The accused, in their defence, both took to the stand to give
evidence. The strengths and weaknesses of all of the witnesses
as
well as the inherent improbabilities or probabilities in their
evidence will be considered in due course. It is important to
note
that a number of issues are not in dispute, which include the
following: Both accused place themselves on the scene at the
relevant
time in the company of the deceased; both accused
admit that they hid
the body of
the deceased in a quarry, which was
referred to in
the evidence as a
"gwarry"; both accused state that the blood stained clothes
that they wore on the
night in question were found in the shanty of
accused number 1; both accused admitted the correctness of the
post-mortem report;
neither of the accused placed in issue that the
knife placed before the court as exhibit 3 was used in the attack on
the deceased;
and both accused admit that the cell phone taken from
the deceased was found and recovered by the police on the roof of
accused
number 1's shanty.
13.
Accused number 1admits to: stabbing the deceased multiple times;
walking with the deceased for some considerable distance whilst
holding onto the belt of the deceased on the right hand side of the
deceased at the hip; and that he and accused number 2 are friends.
14.
Accused number 1, in his evidence, and despite what he said in his
plea explanation and in clarification of his plea explanation,
denied
having the intention to kill the deceased and claimed he only
intended to handicap or maim the deceased. Accused number
1 denies
participating in robbing the deceased of the cell phone he was using
and denies participating in robbing the deceased
of any property of
any description.
15.
Accused number 2 denies: holding onto the deceased's belt whilst
walking with him; stabbing the deceased; being friends with
accused
1; and robbing the deceased.
16.
Accused number 2 admits to cutting the deceased's throat but claims
he only did so whilst acting on the instructions of accused
1and
whilst under duress from accused 1.
17.
The
manner
in
which
evidence
is
to
be
assessed
and
evaluated
was
discussed
by
the Supreme
Court
of Appeal
in
the
matter
of S v Hadebe and Others
[3]
where
the
SCA
adopted the approach
set
out
in
Moshepi
and
Others
v
R
and
quoted
the
following
passage:
"The
question for
determination
is whether,
in
the
light
of
all
the
evidence
adduced
at
the
trial,
the
guilt
of
the
appellants
was
established
beyond
reasonable
doub
t
.
The
breaking
down
of
a
body
of
evidence
into
its
component
parts
is
obviously
a
useful
aid
to
a
proper
understanding
and
evaluation
of
it.
But, in doing so, one must
guard
against
a
tendency
to
focus
too
intently
upon
the
separate
and
individual
part
of
what
is
after
all,
a
mosaic
of
proof.
Doubts
about
one
aspect
of
the
evidence
led
in
a
trial
may
arise
when
that
aspect
is
viewed
in
isolatio
n
.
Those
doubts
may
be
set
at
rest
when
it
is
evaluated
again
together
with
all
the
other
available
evidence.
That
is
not
to
say
that
a
broad
and
indulgent
approach
is
appropriate
when
evaluating
evidence.
Far
from
it.
There
is
no
substitute
for
a
detailed
and
critical
examination
of
each
and
every
component
of
a
body
of
evidence.
But,
once
that
has
been
done,
it
i
s
necessary
to
step back a pace and
consider
the
mosaic as
a
whole.
f
that
is
not
done,
one
may fail
to
see
the
wood for the
trees.
"
[4]
18.The
SCA
in
the
matter
of
S
v
Chabalala
[5]
expressed
itself
on
the
correct
method
to assess
evidence
in
a
criminal
trial
as follows:
"The
trial
court
'
s
approach
to
the
case
was,
however,
holistic
and
in
this
i
t
was
undoubtedly
right:
.
..
The
correct
approach
i
s
to
weigh
up
all
the
elements
which
point
towards
the
guilt
of
the
accused
against
all
those
that
are
indicative
of
his
innocence,
taking
proper account
of
inherent
strengths
and
weaknesses,
probabilities
and
improbabilities
on both
sides
and,
having
done
so,
to
decide
whether
the
balance
weighs
so
heavily
in
favour
of
the
State
as
to
exclude
any
reasonable
doubt
about
the
accused
'
s
guilt.
The
result
may
prove
that
one
scrap
of
evidence
or
one
defect
in
the
case
for
either
party
(such
as the failure
to
call a
material
witness
concerning
an
identity
parade)
was
decisive
but
that
can
only
be
an
ex
post
facto
determination
and
a
trial
court
(and
counsel)
should
avoid
the
temptation
to
latch
onto
one
(apparently)
obvious
aspect
without
assessing
it
in
the
context
of
the
full
picture
presented
in
evidenc
e
.
.
.
.
"
[6]
(references omitted)
19.
As
the
State
indicated
that
in
respect
of
both
the
robbery
and
the
murder
charges,
it
intended
to
rely
on
the
doctrine
of
common
purpose.
The
requirements
to
establish
common
purpose
to
rob
and
murder
on
the
part
of both
accused
1
and accused
2
need to
be
established. These requirements must be
established
beyond
a
reasonable doubt.
These
requirements
have
been
restated
by
the Appellate Division,
as
i
t
then
was, in
the
case
of
S
v
Mgedezi
and
Others
[7]
,
as
follows:
"
I
n
the
absence
of
proof
of
a
prior
agreement
.
..
,
(an
accused)
can be
held
liable
for
those
events,
on
the
basis
of
the
decision
in
S
v
Safatsa
and
Others
1
988
(
1
)
SA
868
(A),
only
if
certain
prerequisites are
satisfie
d
.
I
n
the
first
place,
he
must
have
been present at the
scene
where
the
violence
was
being
committed.
Secondly,
he
must
have
been
aware
of
the
assault
on
the
inmates
of
room
1
2.
Thirdly,
he
must
have
intended
to
make
common
purpose
with
those
who
were
actually
perpetrating
the
assault.
Fourthly,
he
must
have
manifested
his
sharing
of
a
common
purpose
with
the
perpetrators
of
the
assault
by
himself
performing
some
act
of
association
with
the
conduct
of
the
others.
Fifthly,
he
must
have
had
the
requisite
mens
re
a
;
so,
in
respect
of
the
killing
of
the
deceased,
he
must
have
intended
them
to
be
killed,
or
he
must have
foreseen
the
possibility of
their
being killed and performed
his
own
act
of
association
with
recklessness
as
to
whether
or
not
death was to ensu
e
.
..."
[8]
20.
Turning now to the evidence of the first State witness, Steven Tebogo
Mosholodi (Steven). Steven is related
to accused
number 1 and from the evidence appears to be his nephew,
although in the evidence he is at times referred
to as his brother by
some of the other witnesses .
21.
Steven's evidence is that he witnessed most of the
attack on the deceased and certain other events relevant
to this
case. He reported the death of the deceased to the deceased's
family the morning after the attack. A
person by
the name of Boetie arrived who called the
police. The police came and a knife, which
Steven claimed was handed
to him by accused number 2 was given to the police. The police were
informed of the bag with the bloodied
clothing belonging to accused 1
and 2. Steven maintained that the bloodied clothes were concealed in
his grandmother's home. According
to accused number 1the clothes in
the bag were placed behind his bed in his own shanty.
22.Steven
gave evidence to the effect that he witnessed accused number 1
throwing the cell phone taken from the deceased onto the
roof of his
(accused number 1’s) shanty. This on the evidence of the police
was where the relevant cell phone was recovered.
23.
Steven gave evidence that his family was not happy with him giving
evidence against his uncle, accused number 1, and in particular
an
aunt by the name of Molly Mosholodi had put pressure on him not to
testify. It was also the evidence of the Investigating Officer
that
every time he tried to get hold of Steven to make a statement he
was told that Steven was not available and that this
was the reason
why Steven first made a statement a significant time alter the
incident.
24.
Turning now to Steven's evidence on
the assault leading to the deceased's
death. At the time in question
Steven admits to being moderately drunk.
The incident starts at a tavern referred to as the Cheesanyama
Tavern. Steven had been drinking in the Cheesanyama Tavern.
At
some point the deceased joined him and they drank together . At some
point Nzimeni and deceased left his company and went
outside. On the
deceased's return deceased said that accused 1 and 2 had been
fighting with his friend Nzimeni and that he deceased
was going to
leave with both their heads that night. Steven was under the
impression from the changed facial
expression
of both accused, who were sitting at
another table in the
tavern, that they
had overheard the deceased and that they had become angry.
25.Steven
then testified that the tavern closed at some time after 2am. He and
the deceased left in a group of people which included
his girlfriend
and younger brother. His evidence was that they noticed that the two
accused were walking behind them and that accused
number 2 swore at
the deceased and deceased in turn swore at accused number 2. The
accused then chased the deceased and after some
distance caught him.
The accused then disarmed the deceased and threw his knife into
somebody else's premises.
26.Steven
also testified that the two accused then boxed the deceased in by
walking on either side of him. They walked with him
in this manner to
Nzimeni's parental home. They forced deceased to knock and call for
Nzimeni. Nzimeni's younger brother answered
but did not open the door
and informed them Nzimeni was not there.
27.Then,
on Steven's evidence, the two accused still walking on either side of
the deceased walked the deceased to the area of accused
number 1’s
shanty. Each of the accused had a knife and each of the accused
stabbed the deceased several times on various
parts of his body,
including on both sides of the deceased's body. The accused are
friends with each other and they cooperated
with each other in
stabbing the deceased.
28.Steven
testified that they ended up in the vicinity of 'Tiger's shanty'
where the deceased collapsed. Steven saw the accused
bend down and go
through the pockets of the deceased and put certain items into their
own pockets. He identified the cell phone
being removed from the
deceased's pocket because the screen lit up when it was removed from
the deceased's pocket.
29.Steven
assumed the deceased's money was also removed by accused, because he
believed that accused had no money at the time and
he knew that
deceased had money. Furthermore, the accused went drinking the day
after the incident. From this Steven inferred that
the accused took
deceased 's money . Steven also witnessed each of the accused
grabbing hold of a leg of the deceased and dragging
the deceased in
the direction of the quarry.
30.Steven
also witnessed accused number 1 throwing the cell phone onto the roof
of his shanty. The said cell phone was later recovered
from the roof
of such shanty.
31.Steven
made mistakes in his evidence that are important enough to be noted.
He identified one of two exhibits being white all
star takkies as
being worn by accused number 1 on the night in question. Steven later
conceded that accused number 1 was in fact
wearing a formal shoe on
the night in question, described as black Cavelas.
32.Despite
these mistakes, Steven made a favourable impression as a witness.
With one or two minor exceptions, he answered questions
directly. He
conceded when he made a mistake. He was under obvious pressure not to
testify. The family member who had asked him
not to testify was in
court for the first day of his evidence. His version followed a
logical chronological sequence. His version
was not materially shaken
in cross examination. Material aspects of his version were
corroborated by independent witnesses and
his version was easily
reconcilable with the objective facts that were established during
the course of the trial.
33.
The next witness called by the State was Tumelo Andries Mali (Mr
Mali). Mr Mali testified that he lives in an area of Jan Kemdorp
called Marikana. That his nick-name is 'Tiger'. That on the night in
question his wife woke him up at around 3 am as she had heard
screaming. He, his wife and his brother-in-law went outside. At their
fence, they observed two people on the road standing over
another
person who was lying down. Mr Mali estimated the distance between him
and the group on the road to be approximately 4 meters.
34.Mr
Mali testified that on the night in question he was unable to
identify any of the three persons referred to. His evidence
was that
he knew accused number 1 because he lived three houses from him, but
on the night in question he was not able to recognise
him.
35.Mr
Mali testified that on the night in question one of the two men
searched the pockets of the person lying on the ground. On
both the
versions of accused 1 and accused 2 they do not dispute that on the
night in question and at the said time and place that
it was them
standing over deceased. It is therefore not in dispute that Mr Mali
observed them at the relevant date and time even
though he could not
identify them at the time.
36.Mr
Mali's evidence is that the first thing that was removed was the cell
phone from the pocket of the deceased. That when it
was removed from
the pocket the screen of the cell phone lit up giving some light to
the scene. That the light from the cell phone
was used to search the
other pocket of the deceased. He believed that money was removed from
the other pocket of the deceased.
37.
Mr Mali got the impression that both accused were cooperating and
taking their time. Further that he believed both accused were
aware
that they were being watched but that they did not care or have a
concern about being observed. He heard the one accused
say to the
other after the pockets of the deceased were searched "Vat so"
and "Vat so" in Afrikaans. The person
who took the cell
phone out of the pocket of the deceased handed it to the other
person.
38.
The next witness called by the State was Titus Thabo Ditaukise Dube
(Dube). Dube testified that he knew both of the accused
because
accused number 1 had had an affair with his brother's daughter.
Accused number 2 he knew by the name Fifi and he knew accused
2
because he lived in the same area as he did in Masakeng.
39.
Dube testified that on the night in question he had been playing
pool at the Cheesanyama Tavern with a friend of
his
named Lesedi. That Lesedi is now deceased. That on the
night in question he had not consumed alcohol.
40.That
whilst he did not know the deceased he knew the deceased's father.
That on the night in question when he left the tavern
he saw three
people chasing two people. He
then came across
the two
accused, holding the deceased. Dube testified that accused number 2
said the deceased had stabbed him in the
thigh.
41.Dube
testified that the accused held the deceased, one on the left
hand side and one on the right-hand side on his belt,
and began to
walk with him like that. He tried to intervene by saying to accused
number 2 that they should leave the deceased and
go to the deceased's
parents the next day and inform them what the deceased had done.
42.
Accused number 2 then called Dube a 'Frans'. It was explained that a
Frans is a person that does not want to become involved
in gangs and
gangsterism. According to Dube they then walked the deceased away
holding onto his belt as described. Dube then testified
that as the
accused departed with the deceased they said that the deceased was
going to take the punishment for the injuries caused
by the other boy
they were chasing. He testified that they used the term 'gwala' which
he understood to mean take the punch for
somebody else. This meaning
ascribed to the word 'gwala' was challenged and placed in dispute.
43.Dube
then said to the accused as they departed with the deceased that if
something happens that tomorrow he will tell the police
it is the
accused that are responsible.
44.Dube
in his first statement given to the police did not mention the names
of either accused 1 or accused 2 despite knowing their
names. The
reason given for this was that at the time the statement was made he
was afraid.
45.
The next witness called by the state was Joseph Nzimeni Nyakama
(Nzimeni).
46.The
evidence of Nzimeni was to the effect that he was at the Cheesanyama
tavern on the night of the 20 November 2015. That at
some point he
went to the toilet and Steven approached him in the toilet and warned
him that accused 1 and 2 intended to kill him
and that he should take
care of himself. He then left the Chesanyama tavern with the deceased
and one Mugabe and went to a different
tavern.
47.After
some time, the deceased and Nzimeni returned
to the Cheesanyama tavern. Nzimeni went
outside to
urinate and accused number 1 approached him
and took out a knife. Accused
number 1
referred to an incident that had occurred between them
the previous week. Nzimeni broke
the beer bottle he had in his
possession and was about to use it as a weapon. Accused number 1 ran
into the darkness chased by
Nzimeni. Nzimeni was
unable to catch or find accused
number 1 after
that.
48.Returning
to the Cheesanyama tavern Nzimeni ran into accused number 2. Shortly
thereafter accused number 1 returned and it was
Nzimeni's turn to be
chased into the darkness and he managed to escape the two accused and
reached the safety of his parental home.
49.Nzimeni
then slept on the sofa for some time and was awakened by someone
knocking on the window. His younger brother answered
without opening
the door. He heard the deceased's voice asking for him. His younger
brother said he was not home.
50.
The State then called Mrs Stella Mali, Mr Mali's wife. She testified
that during the evening in question she could not sleep.
She heard a
person scream in pain. She woke her husband, they opened their door
quietly and went outside. It was very dark
that evening. They
could not see very well. She observed three people. The one of them
was lying on the ground two people were
standing next to him.
51.
She saw both who were standing bend down. Although she only saw one
persons' hand come out of the deceased's pocket
with the
cell phone, which lit up, she was under the impression that both
persons who bent down had searched
the deceased.
She also testified that a second item was
removed from the deceased's pockets but she
could not identify
whether it was money or what it was.
52.
She then testified that she saw each of the accused drag the deceased
by his feet in the direction of
the
quarry. She could not identify any of the
three people at the time because it was dark. They then returned
to
their home and closed the door.
53.
The State then called the pathologist,
Dr Lemaine Fouche. After placing
her
qualifications on the record, she identified
her report, read out the main findings
and confirmed
them. The post mortem report was not placed in issue by
any of the accused and was in fact formally
accepted by both
accused.
54.
Dr Fouche's main findings were that essentially the deceased died
from loss of blood caused by the cumulative effect of all
of his
wounds. Some of the stab wounds were superficial and those
wounds were dealt with in groups. Accordingly,
Dr Fouche
did not give an exact number of the stab wounds suffered by the
deceased. She estimated that in all the deceased suffered
49 stab
wounds .
55.
In the context of the facts in issue in this trial the following
findings and opinions of Dr Fouche are significant: The deceased
suffered multiple stab wounds; some of the stab wounds particularly
the stab wounds on both lateral sides of the deceased
are consistent with the State's case that both accused
each walked on one side of the deceased whilst
holding onto the deceased's belt, and that both accused stabbed the
deceased multiple times whilst walking in that way; that whilst
some
of the wounds were superficial, many were not, such as those
that penetrated through the spaces between the deceased
's ribs into
his lungs; one of the stab wounds penetrated into the aorta, the
major blood vessel responsible for transporting blood
from the heart
back to the body, just above the heart; it was probable that the
deceased suffered over a long period while he was
able to walk and
function over that period until the blood loss became too severe; and
the lack of oxygenated blood flowing to
the deceased's brain caused
the brain to herniate between the lobes of the brain.
56.
The next witness called by the State was Constable Thamsanqu Berry
Molo. His evidence was to the effect that he was on duty
during the
early hours of the 21 November 2015. After receiving a
call from the charge office, he went out to
the quarry in
question where he met Mr Mali. Mr Mali pointed out a place where
blood stains were covered with soil. Mr Mali
also pointed out
the drag marks that led to the quarry. They
followed the drag marks to where the body
of the
deceased was hidden in the quarry.
57.
The photographer and pathologist were contacted. He remained on
the scene and was present when the photographer and pathologist
arrived. He was also present whilst they went about their
business on the scene.
58.
The next witness called by the State was Constable IItumeleng
Michal Makgaoane. He testified that on his arrival on the
scene he
found Constable Mola present. He testified
that later that day he
recovered a cell
phone from the roof of a shanty that he identified by way of a
photograph. It was later established that this
was a photograph of
the shanty that belongs to accused number 1.
59.
Constable Makgaoane testified that the cell phone was placed in an
exhibit bag and handed to Warrant Officer Kok. He also identified
the
cell phone he recovered by way of a photograph. He was present later
in the day when both accused were arrested.
60.
The State then called Warrant Officer Kok to give evidence. His
evidence was to the effect that he and Constable Makgaoane were
on
the scene at the quarry. Constable Makgaoane handed him a cell phone
which he booked into the SAP13. It was explained that the
SAP13 was
both a place and a register. He recorded the item in the register
himself. He identified the relevant extract of the
register and
copies were handed in without objection as exhibit "H". He
handled other pieces of evidence which he also
recorded in the SAP13
register, which included a knife and certain items of clothing that
were covered in bloodstains.
61.Further,
he took a warning statement from accused number 2. He identified the
warning statement. He identified the place where
accused number 2
signed the warning statement and he identified his signature on the
warning statement. Neither accused objected
to the warning statement
being admitted as an exhibit. It was admitted as exhibit "G".
62.Warrant
Officer Kok recorded in the warning statement that accused number 2
had shown him certain injuries on both of his arms,
being the
top of the right arm which was recorded as swollen and on the
left arm near the wrist which was also recorded as
swollen.
63.Warrant
Officer Kok asked accused number 2 how these injuries came about.
Accused number two answered that he was injured in
that manner whilst
fighting with "Lucky" at the Cheesanyama Tavern.In
cross-examination W/0 Kok was asked if it was possible
he had made a
mistake in recording this answer and W/O Kok replied no he wrote down
what accused number 2 told him.
64.The
State then called Captain Gaerediwe Annah Makame. Her evidence was
that on the 21 November 2015 she went to a scene near
the shanties in
Masakeng. On the scene, she found Constable Makgaoane and W/O Kok.
They informed her that that a person had been
killed there.
65.
A young man approached her on the scene and told her that a
cell phone had been thrown on the roof of a shanty .
Constable
Makgaoane recovered the cell phone from the roof of such shanty.
66.
They then went to the shanty of the mother of accused number 1. After
tracing the mother of accused number 1, the said shanty
was unlocked.
In the said shanty, a plastic bag was recovered behind the bed. The
plastic bag contained bloodstained clothing.
The plastic bag was
handed to W/O Kok.
67.The
next witness called by the State was Ms Lerato Lebona, the deceased's
sister. She identified the cell phone recovered as
being her own that
the deceased was using on the night of his death.
68.
She also testified that Steven came to their family home on the 21
November 2015 and reported to them that the deceased had
been killed and he also informed them of the identity of the killers.
He showed the family a knife and according to Ms Lebona
Steven
informed the family that the knife had been handed to him by accused
number 1.
69.The
next witness called by the State was Constable Motlhaba Afrika Futha.
His evidence was to the effect that he was the Investigating
Officer
in the matter. He had dealt with the cell phone which was identified
by the deceased's sister, Lerato Lebona...
70.
Constable Futha also testified that he had great difficulty in
contacting Steven to take a statement from him. He testified
that an
aunt or sister, Molly Mosholodi, indicated that Steven was not living
there. Constable Futha contacted the
deceased's
family and Lerato Lebona informed him that Steven was in
fact living there. With the help of Lerato
Lebona he managed to
contact Steven. Constable Futha was under the impression that
Steven's family had influenced him so that he
was reluctant to speak
to the police.
71.
The State then closed its case and accused number 1took the stand in
his defence.
72.The
evidence of accused number 1 was very close to the version presented
by the State. The material differences were that: in
his evidence
before the court he denied having the intention to kill the deceased,
despite having admitted it in his plea as well
as in the questioning
to explain his plea; he denied taking the deceased to Nzimeni's
parental home to have deceased help them
get hold of Nzimeni; and he
denied having anything to do with robbing the deceased. Accused
number 1 denied the contention that
Steven had been present and
witnessed the assault on the deceased.
73.
After giving his evidence,
accused number 1
closed
his case. Thereafter, accused number 2 took the stand in
his own defence.
74.The
evidence of accused number 2 was to the effect that although he knew
accused number 1 he was not a friend. The version of
accused number 2
was that: that a person by the name of Silasi had taken Steven home
earlier in the evening as he was drunk and
that he had not been
present nor had he witnessed the deceased being walked away and
stabbed and assaulted; that Steven had been
told what had happened by
other witnesses; that Steven's evidence was simply hearsay; he
had accompanied accused number 1
and the deceased simply to see what
happened to him so that he could give evidence to the police; he did
not stab or assault the
deceased; he denied holding the deceased on
his belt; it was only under duress and under the direct instruction
of accused number
1 that he slit the deceased's throat ; he only slit
the deceased's throat after checking that deceased was no longer
breathing;
he denied robbing the deceased and sought to
implicate accused number 1 in the robbery of the deceased; after
helping accused
number 1to drag the body to the quarry and conceal it
with various articles he accompanied accused number
1 to his shanty; at the shanty of accused number 1 they bathed
and changed out of their bloodstained clothing; they then
proceeded
to a shebeen and thereafter a tavern where they were arrested later
in the morning; despite his evidence that
he stayed
with accused number 1 and deceased so he
could inform the police what had happened, at
first he said he did
not tell the police what he knew about the deceased's murder because
he testified that he was afraid of accused
number 1; he then changed
this version and said whilst travelling alone with the investigating
officer and another policeman he
told them everything and despite
indicating they would take another statement from him the investigat
ing officer failed to do
so.
75.
Accused number 2 through his Counsel indicated that he intended
calling Silasi as a witness to verify his version that
Steven was
not present and had been taken home early in the evening
because he was drunk . It was placed on record
that Silasi was
available and that he had been at court. It was also placed on
record that after consulting with
Silasi a decision was
made not to call him to give evidence on behalf of
accused number 2.
76.Turning
to the version of both accused to explain away Steven's evidence,
being that he had been informed by Silasi and Oupa
of what happened
after he had been taken home because he was drunk. This explanation
proffered by the accused does not stand up
to scrutiny.
77.
There are elements of Steven's evidence that could only have been
given by Steven if he was an eyewitness, because Oupa and
Silasi even
on the version of the accused were not present at the material times.
In this regard, I refer to the evidence of the
robbery of the
deceased and the evidence that the accused took the deceased to
Nzimeni's parental home.
78.Furthermore,
in the most material of aspects the evidence of Steven was
corroborated by Mr and Mrs Mali in so far as the robbery
was
concerned. Even accused number 2 conceded that Mr and Mrs Mali were
telling the truth. Also, insofar as the accused took the
deceased to
the parental home of Nzimeni, the evidence of Nzimeni corroborates
the evidence given by Steven.
79.
Further corroboration for Steven's evidence is to be found in the
objective facts. In this regard, I refer to the injuries described
in
the post mortem report and in the evidence of Dr Fouche. The most
material aspects of the medical evidence were not placed in
dispute
and were even admitted by the accused. Specifically, I refer to the
evidence relating to the wounds being found on the
lateral sides of
the deceased's body, which supports the version given by Steven that
each accused held the deceased on one side
by the belt and that both
accused stabbed deceased repeatedly. In this regard, I also refer to
the injuries sustained by the deceased
to his back and upper arms,
which is consistent with the deceased being dragged away by his feet.
Further corroboration of this
is to be found in the version of
accused number 1 on this aspect. In these circumstances, the
explanation tendered by accused number
2 as to how deceased suffered
the relevant lateral wounds could not be reasonably possibly
true.
80.Furthermore,
the cell phone used by the deceased was found on the roof of the
shanty of accused number 1. Exactly where Steven
said he saw accused
number 1 throw it. This is corroborated by the evidence of Constable
Magaoane.
81.The
cell phone was also identified by the deceased's sister whose
evidence was that the cell phone belonged to her and that the
deceased was using it on the night concerned.
82.
Further, the evidence of Steven is also corroborated by the evidence
of Dube. Even though Dube clearly made a mistake in respect
of who
the deceased had stabbed. His evidence fits in with the other
evidence tendered by the State. This is clearly a case of
a fluid
scene where witnesses observe events at different times in the
sequence of the events and from different perspectives and
are asked
to recall the detail in evidence long after the relevant
events.
83.As
a witness, Steven answered questions directly. He acknowledged when
he made a mistake. He gave evidence against his uncle
despite a great
deal of pressure from some in his family not to do so. Steven has
nothing to gain from implicating the accused
without any basis in
fact. Steven admitted to being moderately drunk on the evening in
question. In the context of his evidence
viewed holistically, the
mistakes he made and acknowledged, are not material.
84.There
is independent evidence that corroborates the material aspects of
Steven's evidence. His evidence is supported by the objective
facts
and fits comfortably into the chronology of events. In
this context, the court accepts the evidence of Steven
in respect of:
the manner in which accused 1 and 2
escorted the deceased
to Nzimeni's house; one
of them on each side of the deceased holding the deceased by the
belt; getting the deceased to try
and help them get their hands on
Nzimeni; each of the accused stabbing the deceased repeatedly; taking
the deceased to a place
outside the house of Mr Mali, who was
referred to as Tiger in the evidence; the robbing of the deceased;
and the deceased being
dragged away by his feet in the direction of
the quarry.
85.
The version of accused 1is very close to that tendered by the State.
He admitted that he and accused number 2 had accosted the
deceased
shortly after they had left the Cheesanyama Tavern on the night in
question. Accused number 1 admitted stabbing the deceased
repeatedly.
Accused number 1 admitted that the assault terminated outside of the
house of Mr and Mrs Mali on the relevant night
and that they disposed
of the deceased's body in the nearby quarry.
86.In
his plea explanation and in the formal admissions made by accused
number 1 he conceded that he had the direct intention to
kill the
deceased. In his oral testimony before this court he denied intending
to kill the deceased and maintained that he only
intended to maim or
handicap the deceased.
87.
Having regard to the number of wounds, the position of such wounds on
the body of the deceased, the facts that such stab wounds
pierced
the lungs and the aorta in the
vicinity of the heart,
the evidence is
overwhelming that accused number 1 intended to kill the deceased and
had the direct intention to kill him.
Having regard to all of the
available evidence in this regard, the State has proved this aspect
beyond a reasonable doubt. I reach
this conclusion independent of the
fact that accused number 1 had already formally admitted that he had
the direct intention to
kill the deceased and despite the fact that I
am entitled to rely on this admission.
88.
Insofar as the evidence of accused number 1 corroborates the evidence
adduced on behalf of the State, such evidence is accepted.
89.Turning
now to the evidence of accused number 2.In short, his version was
that he remained with accused number 1 and the deceased
to see what
happened so that he could give evidence of what happened to the
deceased. He denied holding deceased by the belt and
also denied
stabbing the deceased. At the place where the deceased collapsed,
outside the house of Mr and Mrs Mali accused number
2 says accused
1threatened to kill him if he did not slit the throat of the
deceased.
90.Accused
number 2 made a very poor impression as a witness. On many occasions,
he did not answer questions directly. He tried
to deflect questions
by giving answers that were not directly relevant. He was arrogant
and aggressive
in responding to
questions put by Counsel. On more than one
occasion he said that
Counsel 'should not think for him'.
91.
The version put forward by accused number 2 was littered with
inherent improbabilities. Accused number 2 testified that he was
not
a friend of accused number 1. He tried to create the impression that
he somehow landed up with accused number 1 when leaving
the
Cheesanyama Tavern at closing time even though this did not
correspond with evidence he had given earlier. Accused number 2
testified that he stayed with the deceased and accused 1to be able to
give evidence against accused 1. Yet when he made his statement
to
police he decided to exercise his right to silence explaining that he
was in the same cell as accused 1and his life would be
in danger if
he gave a statement to police.
92.Later
in his evidence accused 2 states that whilst travelling in a police
van he told the investigating officer the whole story
and he was
supposed to come and take another statement from him, which never
happened. This is an example how accused number 2
embroiled and
changed his version during the course of his evidence. This is also
an example of one of the inherent improbabilities
in his version. If
he didn't put it in his earlier statement because he was afraid of
accused number 1 and lived in the same cell
as accused 1, why
would this change at a later stage? Accused number 2 did not give a
reasonable explanation to explain this.
Furthermore, he could not
explain why this was not put to the
investigating officer whilst
his Counsel
cross examined him.
93.
There are many other aspects of accused number 2's evidence that are
inherently improbable or problematic. Accused number 2
said that
accused number 1was handed a sledger. A sledger was described as a
long metal instrument with a handle and a curved blade
which was used
to cut grass or small trees and bushes. That accused 1 attacked the
deceased with this sledger and hit the deceased
several times with
it. The medical evidence showed that there were no wounds on the
deceased that would have matched an injury
from this type of
instrument. When accused 2 was confronted with this he said that he
does not know whether accused 1struck deceased
with the sharp part or
blunt part of the sledger. This is inherently improbable in the light
of accused number 2's evidence that
accused 1 stabbed the deceased
repeatedly. If accused 1 did not hesitate to stab deceased repeatedly
with a knife why would he
hit deceased with the blunt side of a
dangerous instrument which includes a sharp blade.
94.A
further aspect of accused 2's version that is improbable is his
evidence on how they were searched at the entrance to the Cheesanyama
tavern and patrons handed their knives to security. Accused number 2
claimed he did not have a knife. He also claimed that when
he left
accused 1 retrieved his knife from the tavern security. Later accused
number 2 claimed that accused number 1 had a second
knife which
accused number 1 handed to him to cut the deceased's throat. On the
version of accused number 2 and in the light of
his evidence how
patrons were searched, no reasonable explanation can be given for how
accused number 1 came to be in possession
of two knives.
95.
Accused 2 also related a version where
they, on their way came across
Oupa, Silesi
and Tebogo and that they also assaulted the deceased. This was never
put to any of the State witnesses and accused
2 conceded that he had
not informed his legal representative of this fact.
96.
The whole picture accused number 2 paints is inherently improbable.
On his version, he stayed with accused 1and deceased in
order to bear
witness. He testified that he tried to intervene on various
occasions. If accused 2 wanted to assist deceased, he
and deceased
could have acted together in order to escape accused number 1. The
evidence shows that he did not do this. Further,
accused number 2
could not give a reasonable explanation for not doing so. This,
despite his further evidence that on several occasions
he tried to
intervene verbally to assist the deceased.
97.The
court had the opportunity of observing both of the accused and even
though accused number 2 tried to create the impression
he was scared
of accused number 1, from their behaviour in court and the manner in
which they gave evidence it clear that accused
number 2 is the
dominant personality between the two accused.
98.On
looking at the version of accused 2 holistically it stands to be
rejected. There is simply no basis to find that his version
is
reasonably possibly true. This is particularly so when one considers
his claim that he acted under duress. In the light of all
of the
evidence viewed holistically one can only find that there is no basis
to find that the version of accused 2 on his
claim of acting
under duress could reasonably possibly be true.
99.
The evidence shows overwhelmingly that accused number 2 acted in
concert with accused number 1, both in respect of the murder
of the
deceased and in respect of robbing the deceased of his possessions.
The evidence establishes the requirements of accused
acting in common
purpose in respect of both bringing about the death of deceased and
robbing him of his possessions. The evidence
shows overwhelmingly
that both accused 1 and 2 performed various acts of association with
both the robbery and the murder. In these
circumstances, I find that
the State has established, both in respect of the murder and the
robbery, that both accused acted with
a common purpose.
100.
In respect of the robbery charge the evidence of Mr and Mrs Mali
corroborates that of Steven in all material respects. They
all gained
the impression that the accused co-operated with each other in
depriving the deceased of his possessions. They could
only identify
the cell phone with any certainty because the screen lit up
when it was removed from the deceased's pocket.
Mr Mali testified
that the one gave it to the other. Who put it in his own
pocket. Steven then gives evidence he saw
accused 1 throw the said
cell phone onto the roof of his shanty. The said cell phone is
recovered from the roof of
such shanty which emerges from
the evidence of Constable Magaoane. Then Lerato Lebona the deceased's
sister identified the said
cell phone as belonging to her and that
deceased was in possession of it on the night in question. The
evidence shows that both
accused co-operated in robbing the deceased
of the said cell phone which was in his possession at the time.
101.
Turning now to the question of whether the State has on the evidence
established beyond a reasonable doubt that the accused
had
pre-planned the murder of the deceased or whether such evidence
established that the murder was pre-meditated.
102.
In order to examine this question, it is necessary to
divide the events of the evening
in question into two
stages: Firstly, the walk to Nzimeni's parental home to use the
deceased to help the accused lay their hands
on Nzimeni; and
Secondly, when they failed to get hold of Nzimeni the walk to the
place where deceased eventually collapsed and
met his death. In
the first stage the operative motive in injuring
the deceased was to motivate him to
assist the accused to get hold of
Nzimeni.In the second stage when the deceased's
ef
f
orts
did not help secure Nzimeni the intention of the accused changed
and clearly from their actions the accused wanted to kill the
deceased.
103.
Analysed in this way it cannot be established beyond a reasonable
doubt that the accused had pre-planned or pre-meditated the
death of
the deceased . The accused are entitled to the benefit of the doubt
on this aspect and accordingly this court cannot find
that the murder
of the deceased was pre-planned or per-meditated.
In
the circumstances and for the reasons set out above, both accused are
found guilty on both the robbery charge and the murder
charge.
____________________
L
G LEVER
ACTING
JU DGE
Northern
Cape High Court, Kimberley
Counsel:
For
the State:
Adv. A.H Van Heerden
Instructed
by:
DIRECTOR PUBLIC PROSECUTIONS
For
the Accused 1:
Adv. L. Setouto
Instructed
by:
LEGAL AID SA
For
the Accused 2:
Adv K. Pretorius
Instructed
by:
LEGAL AID SA
[1]
S
51of
the
Crimina
l
Law
Amendment
Act
1
05
of
1
997.
[2]
Act 51of
1
977.
[3]
S v HADEBE & OTHERS
1
998
(
1
)
SACR 422 (SCA).
[4]
S
v
HADEBE & OTHERS .above at 426 e-h.
[5]
S v Chaba
lala
2003 (
1
)
SACR
134
(SCA}.
[6]
S v Ch
a
bal
a
la
.
,above
at pp 139
I
to
1
40
b.
[7]
S v Mgedezi and Others
1
989
(
1
)
SA 687 (A).
[8]
S
v
Mgedezi and
Others.,
above at 705 i
to
706
c.