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[2015] ZANCHC 6
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S v Taje (KS 4/2013) [2015] ZANCHC 6 (18 February 2015)
SAFLII
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IN THE HIGH COURT OF
SOUTH AFRICA
[NORTHERN CAPE
DIVISION]
CASE NUMBER: KS 4/2013
DATE: 18 FEBRUARY 2015
THE STATE
AND
JOHANNES GOBUSAMANG
TAJE
...................................................................................
ACCUSED
JUDGMENT
Dates of hearing : 21-23 October;
8-10December 2014
Date of judgment : 18 February 2015
Phatshoane J
1. Mr Johannes Gobusamang Taje, the
accused, is arraigned before me on 4 Counts:
1.1. Count 1: Housebreaking with intent
to commit an offence unknown to the State. It is said that on or
about 27 or 28 September
2012 at or nearby Ikhutseng, Warrenton, he
unlawfully and intentionally broke into the house of Ms M……
S…….
M….. with the intent to commit an offence
that could not be established.
1.2. Count 2: Rape. The State alleges
that on 27 or 28 September 2012 at or nearby Ikhutseng, Warrenton, he
unlawfully and intentionally
performed a non-consensual act of sexual
penetration with Ms M….. S…….. M……...
1.3. Count 3: Rape. It is alleged that
on 27 or 28 September 2012 at or nearby Ikhutseng, Warrenton, he
unlawfully and intentionally
performed a non-consensual act of sexual
penetration with Ms M…… S…… M…….
1.4. Count 4: Murder. The State
maintains that on or about 27 or 28 September 2012 at or nearby
Ikhutseng, Warrenton, and the accused
unlawfully and intentionally
killed Ms M…. S…. M…… (The deceased).
2. The accused tendered a plea of not
guilty on all the counts. In his plea explanation in terms of
s 115
of the
Criminal Procedure Act, 51 of 1977
, he states that he
broke-open the window at the deceased’s residence while he was
inside the house and escaped through it.
He was shocked and could not
think straight to use the door to leave. At the worst for him, he
says, he is guilty of malicious
damage to property. He denies that he
raped or had sexual intercourse with the deceased while he was in his
sound and sober senses.
He claims to have been under the spell of the
muti that the deceased supplied to him. In respect of the murder, he
intimated that
he might have strangled the deceased in the process of
trying to break-free from her but in view of the fact that he was not
compos
mentis during the occurrences he cannot account for the manner
in which the strangulation took place.
3. The accused admitted that his mother
found his T-shirt and pants under his mattress in his bedroom soiled
with the deceased’s
faecal material and that the blood found on
the deceased’s kitchen lace curtain was his because he cut his
hand after he
had broken the window pane. The following admissions
were also recorded in terms of s 220 of the Criminal Procedure Act,
51 of
1977 (CPA). The identity of the deceased; that she did not
sustain any further injuries from the time her body was removed from
the scene to the date of the post-mortem examination by Dr Adin Don
Surtie; the contents of the two autopsy reports handed in evidence
including the cause of death described therein as “strangulation
with sexual assault”; the photo plan and the key thereto;
and
that the accused’s soiled running shoes were found in his
bedroom.
4. Ms L……. M……..
T……., the deceased’s neighbour, knew the accused
and had never
seen him at the deceased’s residence before. She
intimated that on the morning of 28 September 2012 she visited the
deceased
as usual to ask her for some tea. She knocked at her front
door several times and called the deceased’s name out but did
not receive any response. At the corner of the house she noticed
pieces of glass from a window pane and a stone on the ground. Some
of
the pieces of glass were on the windowsill. A drain pipe was loose
from the wall outside house and lay on the ground as if someone
had
stepped on it. T…… testified that the deceased never
used muti or practised its use on anyone. She called Ms
M……..
Who was in the vicinity, Ms N……. Flora S………
(“N……..”),
one of the neighbours, and other
people around. They summoned the police.
5. N………. testified
that she grew up in front of the deceased. At some stage she resided
with the deceased who
took care of her children and kept some of her
belonging in her house. She knew the accused and says she has never
seen him at
the deceased’s house before and neither has the
deceased mentioned him to her. She confirmed the condition of the
deceased’s
residence in the morning of 28 September 2012 as
already described by T…………. She added
that there were
more shards inside the house than outside. When she
cleaned the deceased’s house on the Wednesday before her death
the curtains
were clean and had no bloodstains. She knows that the
deceased did not use any muti because she was in her company most of
the
time. She was with the deceased around 17h00 the day before her
death and nothing appeared untoward.
6. Ms S….. B………
is married to the accused’s cousin, Mr A……. M…….
Just
before the accused was arrested Mr M……. had a
thought provoking conversation with him which he relayed to the
family.
Ms Bok says that following the family discussion the accused
called her outside and requested her to give him R60 for transport
because he wanted to leave for B……. She reported this
to the family. They advised her not to give him the money but
to call
the police and not to alert the accused. She talked to the accused
again later that day when he was at the back of the
police van. In
their conversation the accused told her that his All-star running
shoes were under his bed and she should not allow
the police to
confiscate them. Nevertheless, she disclosed this information to a
detective who was present.
7. M…….. says that his
mother, grandmother, and aunt came home with a plastic bag containing
the clothes the accused
wore the day the deceased was killed. M………
was called into the bedroom. They took out the clothes in the plastic
bag and showed them to him. The family requested M……..
to enquire from the accused where he had been the previous
day and
about the soiled clothes. The accused told him that he was at a
tavern and had a fight. The accused thereafter called M……..
outside and told him that he was also at the scene with an unnamed
friend from Christiana. The accused reported that his clothes
were
bloodstained because he stabbed the unnamed friend as he was
responsible for the occurrence at the deceased’s house
and his
clothes were soiled when he lifted deceased and put her on the bed.
8. Const Gomolemo Lizzy Mohoerane was
accompanied by W/O Koboekae to the scene. They noticed the All-star
shoe prints inside the
yard and at the corner of the fence. They
noticed that the prints faced the house from the fence and also faced
the opposite direction
out at the fence. There were similar prints
next to the house and at the toilet but not at the gate. The kitchen
window with a
broken pane was slightly open. There were some blood
stains on the kitchen curtain. On top of the sink, situated close the
window
in issue, was a front portion of a running shoe print facing
inside the kitchen. The print was sandy without any faecal material.
Inside the house they found, inter alia, that the deceased was lying
on the bed barely clothed. As depicted on the photos, her
clothes
were tucked towards the breast revealing her lower torso and body.
Her legs were stretched outwards. Const Mohoerane says
that the
deceased had faecal material on her legs. This material was also
found on the floor with the similar All-star running
shoes prints on
them.
9. Const Mohoerane was later involved
in arresting the accused on the same date they visited the scene. She
says that on their way
back to the Police Station she and W/O
Koboekae received a radio call that the accused was in Zone 8,
Warrenton, which is not where
he usually stays. Accompanied by W/O
Khethani in a separate vehicle they went to the place and found the
accused polishing his
shoes with a traveling bag next to him.
Mohoerance enquired from him where he was heading. He replied that he
was on his way to
Bloemhof. She further requested him to give her the
takkies he wore the previous night. His Aunt handed over to the
police the
clothes, referred to earlier, that he wore the previous
day. They put him in the police vehicle and took him to where he
stays.
W/O Koboekae and Khethani went inside the house and came out
with a pair of All-star running shoes. They proceeded with him to the
police station.
10. Dr Adin Don Surtie, a medical
officer in the forensic pathology station in Kimberley, conducted the
post-mortem examination
on the body of the deceased. He found that
the deceased had bruised inner lips and a broken left upper frontal
tooth, indicative
of blunt trauma to the area of the mouth. She had
congested eyes, face and organs; 20 mm laceration to the left upper
lip;
5x5 mm bruise to the inferior central chin; 10x10 mm
bruise to the left central anterior neck adjacent to the midline. He
explained
that a bloodless field neck dissection is normally
performed when strangulation is suspected. Following this dissection
he found
petechial bleeds, (small bleeds or bruises within the dermis
of the skin) at the level of and above the thyroid bone. The deceased
also had bruises on the right anterior chest lateral and inferior to
the nipple; 20x5 mm bruise to the anterior chest superior
and medial
to the nipple; 40x10 mm bruise to the anterior right lateral
upper arm; multiple circular bruises to the left anterior
arm at the
level of the elbow and the upper arm.
11. With regard to the injuries to the
deceased’s genitalia, Dr Surtie stated that he found bruises at
the superior central
aspect of the vaginal opening; petechial and
bruises bilaterally at the bases of the labia minora; superficial
skin lacerations
at bases of the labia minora with minimal reaction;
laceration in the vaginal canal on the left inferior lateral aspect
about 20mm
inside the canal; and cervical laceration. He also found a
white substance and a hair in the vagina and blood trickled from it.
He could not say what the white substance was. He suggested that the
injuries to the genitalia were consistent with forceful penetration.
12. Dr Surtie also found that there was
a laceration in the rectum caused by blunt force which suggested
forceful penetration in
the rectum. He also found the superficial
laceration around the anus and the superficial skin lacerations
between the buttocks
with minimal reaction, meaning that this injury
was inflicted during or immediately before death. He found dirt with
blood covering
the buttocks; blood, debris with hair in the right
inguinal fold (groin). Fluid deposits (which could be from semen or
saliva)
were present on the right anterior abdomen and the left
anterior lower leg. The deceased’s clothes were torn, had blood
and
dirt on them.
13. Dr Surtie explained that the fact
that the deceased’s eyes and organs were congested suggests
that her arteries in the
neck were obstructed. The pressure applied
to the neck must have endured for 5 minutes or so before death
finally set in. He concluded
that the cause of death was
strangulation with sexual assault. All wounds were due to blunt
force.
14. The accused says that the
deceased’s home is situated about 40 metres from his. At times
he fetched water for her from
the outside toilets if there was water
shortage inside the house. On 27 September 2012 around sunset he went
to the deceased’s
home because she called him from the street
and invited him over to her house. She was alone. The deceased
enquired from him if
he was not looking for a job. He replied
affirmatively. The deceased informed him that she had medicine (muti)
which would help
him find a job. She asked him to sit on the couch
and showed him powder-like dark-brown muti in a plastic container.
After a while
she came with a bath and poured half of this muti
inside the bath and added some boiling water. She brought in a
blanket and advised
the accused to cover himself with it while she
lit a candle. He bowed down and faced inside the bath with his head
covered.
15. The accused says from that moment
of the facial steaming ritual (known as “go arametsa” in
Setswana) he lost his
senses and cannot explain what happened
thereafter. The next thing he knew, when he woke up he was on top of
the deceased who was
holding his penis trying to insert it inside her
body part but cannot say in which part. In his plea explanation he
said that the
insertion was inside the deceased’s vagina. He
also cannot explain how he reached her bed or how his clothes came to
be soiled.
He decided to run away. He cannot recall if he was dressed
or naked when he left. Because it was dark inside the house he also
cannot say whether the deceased was alive when he left.
16. The accused does not know whether
he strangled the deceased but he was alone with her. Therefore, he
cannot comment on how the
deceased was raped or strangled as set out
in the autopsy report. He says that he left the deceased’s home
through a window.
He explained that it may be him that broke the
window. He cannot tell if he got out of the premises through the gate
or the fence.
In the morning his grandmother told him that the
deceased had died. The clothes he wore were on his bedroom floor and
it dawned
on him that he was at the deceased’s house. He left
home and stood at some corner near the deceased’s home. He saw
many police officers in the yard and went to his aunt’s
residence. When he was questioned by his family members whether he
knew anything about what transpired at the deceased home they were
crying. He therefore decided not to tell them the truth and
lied
instead. He denied having spoken to Const Mohoerane or to Ms Bok on
the day in question.
17. In S v V
2000 (1) SACR 453
at
455a-c para 3 the Court pronounced as follows:
“[3]…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.”
See also S v Mafiri
2003 (2) SACR 121
(SCA) at 125 para 9; and S v Shackell
2001 (2) SACR 185
(SCA) at
194g-i para 30.
18. The deceased’s window pane
was broken. She was raped vaginally, anally, and strangled to death.
The crisp issue is whether
the accused committed the acts. Although
he does not exclude himself as the culprit he is exculpating himself
by claiming that
he is unable to account how the offences were
carried out because he was not in his sound and sober senses and
therefore not responsible
for his acts.
19. It is common cause that the accused
broke the deceased’s kitchen window pane. His case that he did
so when he escaped
from the house and that his action amounted to
malicious damage to property is irreconcilable with the overwhelming
evidence which
points to house-breaking. It makes no sense that he
would break a window pane to escape from the house while the window
had a handle
which he could have used to open. The preponderance of
shards inside the house than outside suggests that the pressure to
the window
pane must have been applied from the outside. The
accused’s footprint on the sink next to this window faced
inside the house
as opposed to outside. If the accused’s
version that he was escaping from the house is to be accepted it does
not explain
why the print on the sink did not have the faecal residue
but was sandy or dusty.
20. The accused’s version that
the muti altered his state of consciousness with the ramification of
complete unawareness of
his surroundings is not without problems.
Prior to the commencement of the trial Dr N.K Kirimi, a Principal
Specialist Psychiatrist
at West-End Hospital, Kimberley, whose report
was handed in as evidence by consent as exhibit “F”,
evaluated the accused.
On the issue of criminal responsibility, he
records in his report that the accused “has normal
understanding of right and
wrong and can act accordingly”.
21. The two witnesses who testified, Ms
T…….. And Ms S…… (N……),
were very close to the
deceased. They vouched for the fact that the
deceased did not practice traditional healing. They also never saw
the accused at
the deceased’s residential place. I accept their
evidence as reliable, credible and trustworthy. The accused fared
badly
in his defence. Throughout his cross-examination, when faced
with pitfalls, his responses were that his memory had faded. His
mendacity
is manifest in his description of the so-called muti upon
which his defence solely rest.
22. In his plea explanation he said
that the muti was contained in “a tiny bottle”. During
his evidence-in-chief he
intimated it was powder-like dark-brown muti
in a plastic bag; whereas under cross-examination he stated that the
stuff was grey
in colour in a plastic bag of the Spar Groceries Store
size. When he realized that he entangled himself in falsehood he
stated
that there was muti in a bottle and in a plastic bag.
Interestingly he remembers that after the deceased had basically
emptied
the traditional medicine into the boiled water she gave him
the residue of this substance to keep. In the morning when he was at
his home he was still in possession of it, even when he was arrested.
He went on to say that he attended Court with this muti and
had even
shown this to his attorney but the attorney did not disclose this
fact. His family raised a hue and cry when confronting
him with the
deceased’s death. It therefore defies any logic that he did not
exonerate himself by showing the family or the
police the muti. Const
Mohoerane’s testimony was satisfactory and I have no reason to
doubt it. She testified that the accused
was searched by the police
and no muti was found in his possession.
23. The accused almost threw in a towel
or gave his game away when he testified that he had to lie to his
grandmother because telling
her the truth could give her a
heart-attack. While the accused alleges that his memory had
momentarily faded due to the muti inhalation
he was able to tell M…….
that his clothes were soiled when he lifted the deceased onto the
bed. This is in sync with
the evidence of M……. who
testified that the deceased had faeces on the soles of her feet.
Meaning that at some stage
she must have planted them on the floor,
from which the accused had to lift her. The accused confirmed that
what M…….
conveyed to the Court was what he (accused)
relayed to him and therefore truthful.
24. The fact that the accused’s
clothes were found under his mattress is destructive of his case. His
soiled clothes could
not have been found hidden if he had no inkling
of what he did wrongly at the deceased’s house. Although the
accused denied
having spoken to Const Mohoerane and Ms Bok I am
persuaded that he did, and did so freely and voluntarily. The fact
that he was
found polishing his shoes with a travelling bag next to
him and had requested R60 to travel to Bloemhof shows that he was
running
away from his deeds.
25. In his plea explanation he stated
that he may have strangled the deceased in the process of trying to
break-free from her. When
asked how he tried to set himself free, in
what had become a pattern, he could not remember if he even attempted
to break-free
due his memory lapse. On the whole, I am satisfied that
there was no muti at play which led to the accused losing his
self-consciousness.
The investigation uncovered none. In S v Reddy
and Others
1996 (2) SACR 1
(A) at 8c-e the Court made the following
pronouncement with regard to the assessment of circumstantial
evidence:
“In assessing circumstantial
evidence one needs to be careful not to approach such evidence upon a
piece-meal basis and to
subject each individual piece of evidence to
a consideration of whether it excludes the reasonable possibility
that the explanation
given by an accused is true. The evidence needs
to be considered in its totality. It is only then that one can apply
the oft-quoted
dictum in R v Blom
1939 AD 188
at 202 – 3, where
reference is made to two cardinal rules of logic which cannot be
ignored. These are, firstly, that the
inference sought to be drawn
must be consistent with all the proved facts and, secondly, the
proved facts should be such that they
exclude every reasonable
inference from them save the one sought to be drawn.
See also S v Dos Santos And Another
2010 (2) SACR 382
(SCA) at 400 para 33.
The accused placed himself at the scene
of the crime and says that he was alone at the deceased’s
residence. The inexorable
inference to be drawn is that he broke into
the deceased’s house, raped and murdered her. His defence of
memory lapse is
improbable and falls to be rejected as false. In my
view, the State proved its case beyond a reasonable doubt. The
accused’s
version cannot reasonably possibly be true.
26. The accused was charged with the
offence of housebreaking with the intent to commit an offence unknown
to the prosecution. The
evidence clearly established that his
intention (the motive) was to rape the deceased. Nothing was stolen
from the house. The murder
followed the rape and meant to stop the
deceased from testifying against him. The accused therefore had the
direct intention to
murder the deceased.
27. To my mind, convicting the accused
of housebreaking with intent to rape and rape and the two rapes
(count 2 and 3) would amount
to undue splitting of the convictions.
However penetrating the deceased vaginally and anally convinces me
that those are two separate
acts. The presence of a white substance
and or fluid deposits (which could be semen or saliva) in the orifice
of the deceased’s
vagina and on the right anterior abdomen
further fortifies this conclusion. My sense of justice is to convict
the accused of rape
(simpliciter) on the second charge of rape and to
acquit him on count 3.
28. In the result:
Order:
1. The accused is found guilty as
follows:
1.1 On Count 1: Housebreaking with
intent to commit rape and rape;
1.2 On Count 2: Rape (simpliciter); and
1.3 On the Count 4: Murder with the
direct intent to kill.
2. The accused is found not guilty on
count 3, rape, due to duplication of the convictions.
THE SENTENCE:
Date of the hearing: 18 February 2015
Date of the sentence: 10 March 2015
29. Mr Johannes Gobusamang Taje, the
accused, was convicted on three counts: house-breaking with intent to
rape and rape, rape and
murder. I have dealt with the manner in which
the offences were carried out and find it unnecessary to repeat the
circumstances.
30. The accused, 28 years of age, is
unmarried with no dependents. He attended school up to grade 12 but
failed it. His mother and
father passed away in 2012 and 2005,
respectively. He was raised by his grandparents who took good care of
him. His well-being
was important to them and he grew up well under
their guidance. They stayed with him from childhood until he was
arrested two years
and three months ago.
31. Ms M…… S………
M……., the deceased, was 67 years of age when she met
her untimely
death. The accused’s family took her as one of
their family members. The accused knew her and was aware that she
stayed alone
and therefore vulnerable. He broke into her house, a
place the deceased was supposed to feel safe in, and attacked her.
This was
a serious incursion into the deceased’s right to
privacy and dignity. In Kekana v S (629/2013)
[2014] ZASCA 158
(01October 2014) para 20 the Supreme Court of Appeal recently
pronounced:
“Domestic violence has become a
scourge in our society and should not be treated lightly, but
deplored and also severely punished.
Hardly a day passes without a
report in the media of a woman or child being beaten, raped or even
killed in this country. Many
women and children live in constant
fear. This is in some respects a negation of many of their
fundamental rights such as equality,
human dignity and bodily
integrity. This was well articulated in S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 345A – B when this court said the following:
"Women in this country have a
legitimate claim to walk peacefully on the streets to enjoy their
shopping and their entertainment,
to go and come from work, and to
enjoy the peace and tranquillity of their homes without the fear, the
apprehension and the insecurity
which constantly diminishes the
quality and enjoyment of their lives.”
32. As already alluded to in the
judgment, the cause of the deceased’s death is recorded as
strangulation with sexual assault.
She sustained multiple injuries
including a broken left upper frontal tooth as a result of the
accused’s actions. Dr Surtie
testified that the act of
strangulation went on for five minutes or so before death finally set
in. Some of the injuries to the
genitalia where inflicted during or
immediately before death. This suggests that she may have died while
she was being raped. She
was raped more than once i.e. vaginally and
anally and killed in a quest to silence her forever. There is nothing
in the evidence
to suggest that she posed any threat to the accused.
The scene the accused left behind following the gruesome acts was
horrific
even for the accused to look at when shown the photo album
(exhibit E1 and E2). He placed his family through a trying situation
because he tried to influence some of them to conceal exhibits, which
conduct amount to an attempt to defeat the ends of justice.
They had to deal with their loss and to
testify against him. These are serious aggravating circumstances.
33. The Zinn triad of factors requires
the sentencing Court to strike a balance between the personal
circumstances of the accused,
the seriousness of the offence, as well
as the interests of the public (see S v Zinn
1969 (2) SA 537
(A) at
540G – H). The accused is not a first offender. His wrong
encounter with the law was in 2009 when he was convicted
of theft and
sentenced to a fine of R5000.00 or three months imprisonment wholly
suspended for three years on certain conditions.
34. The society should be protected
against all forms of the crimes, more so those involving violence,
and would require that the
accused be appropriately punished for his
misdeeds. The accused is convicted of serious offences where life
imprisonment is ordained
absent a finding of substantial and
compelling circumstances. Ms M………, for the
accused, argued that the only
substantial and compelling
circumstances present is to be found in the fact the accused spent
two years and three months in prison
awaiting this trial. That may be
a mitigating factor but does not in itself constitute the required
substantial and compelling
circumstance.
35. I share the sentiments expressed by
Satchwell J as follows in S v M
2007 (2) SACR 60
(W) at 91 paras 111
and 113:
“[111] Traditionally, time spent
in custody while awaiting trial is taken into account for purposes of
sentencing. Such time
is usually deducted from the sentence of
imprisonment which the sentencing judge or magistrate would have
wished to have imposed,
on the grounds that a period of incarceration
has already been endured, notwithstanding that this ordeal took place
prior to conviction
and certainly prior to sentence.
……
[113] A life sentence of imprisonment
is theoretically indeterminate. As far as the sentencing court is
concerned the date when
the sentence commences should have no impact
on its duration, since it theoretically endures for the remainder of
the natural life
of the person who is so sentenced. Obviously a
person who is 25 years old at the time of sentencing is more likely
to serve a longer
period of imprisonment than a person who is 60
years old at the time of sentencing. However, that should not in and
of itself cause
a sentencing judge to fail to impose a life sentence
of imprisonment where it is statutorily required.”
36. The aggravating circumstances
present in this case far outweigh the accused’s mitigating and
personal circumstances. There
is nothing I could find which impels
any departure from the imposition of the prescribed sentences. An
order that the sentences
run concurrently should ameliorate their
effect including the two years and three months spent by the accused
in prison awaiting
this trial.
37. In the result the accused is
sentenced as follows:
1. On Count 1: Housebreaking with
intent to commit rape and rape: Life imprisonment;
2. On Count 2: Rape (simpliciter): 15
years imprisonment;
3. On Count 4: Murder with the direct
intent to kill: Life imprisonment;
4. The above sentences are to run
concurrently.
MV PHATSHOANE
JUDGE
NORTHERN CAPE HIGH COURT
Appearing for the State: Adv Q.
Hollander
Instructed by Director of Public
Prosecutions, Kimberley
Appearing for the accused: Ms M.
Mazibukwane
Instructed by Justice Centre,
Kimberley