Brief Summary

Criminal Law — Charges of murder and sexual offences — Accused charged with murder, robbery, multiple counts of rape, and attempted murder — Allegations of premeditated attack on complainant by accused and accomplices — Accused's mental state at the time of the offences raised as a defence — Court's refusal to grant postponement for further psychiatric evaluation — Holding that the accused's right to a fair trial not compromised by proceeding with the trial — Accused entered not guilty pleas on all charges, with co-accused claiming duress — Court to consider the gravity of the charges and the need for a timely trial.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter was a criminal trial in the North Gauteng High Court, Pretoria, in which the State prosecuted four accused on multiple serious charges arising from events at the residence of Accused 1 in Modimolle on 3 January 2012. The charges comprised murder, kidnapping, multiple counts of rape under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, and attempted murder (with alternatives including assault with intent to do grievous bodily harm and sexual assault).

The parties were the State as prosecutor and Johannes Christiaan Kotze (Accused 1), Paparona Andries Sithole (Accused 2), Pieta Mampuru Mohlake (Accused 3), and Sello Frans Mphaka (Accused 4) as accused persons. The complainant on the kidnapping, rape and related charges was Ms LB, and the deceased on the murder count was her son, CB.

The proceedings had notable procedural features. At the commencement of trial on 19 November 2012, Accused 1 applied for a postponement on the basis that further psychiatric investigations were allegedly required; the application was refused. Accused 1 then declined to plead, and the court entered pleas of not guilty on his behalf in terms of section 109 of the Criminal Procedure Act 51 of 1977. During the trial, Accused 1’s defence crystallised as temporary non-pathological criminal incapacity (temporary insanity / incapacity), while Accused 2–4 pleaded not guilty and relied primarily on a version of relative compulsion/duress regarding their participation in the offences against Ms LB, and they denied penetrating her.

After the defence led expert evidence supporting Accused 1’s incapacity defence, the State applied to re-open its case to adduce expert evidence in rebuttal. The court allowed the reopening, finding it justified in the circumstances.

The general subject-matter of the dispute concerned (i) what occurred during the attack on Ms LB and the killing of CB, (ii) whether Accused 2–4 acted voluntarily or under compulsion and whether rape by penetration was proved against them, (iii) whether Accused 1 possessed criminal capacity at the relevant time, and (iv) the proper verdict in relation to the attempted murder count.

2. Material Facts

It was undisputed that CB was killed by three gunshot wounds on 3 January 2012, and that Ms LB was attacked at Accused 1’s house, was restrained on a bed, was gagged, was sexually assaulted, and suffered serious injuries. Medical evidence confirmed sexual assault and significant physical trauma, including severe injuries to Ms LB’s breasts (including removal of her nipples) and other injuries observed shortly after the incident.

The court accepted as materially established, on the State’s case and corroboration in the record, that Ms LB and Accused 1 had been married but were estranged and living apart by late 2011, and that Accused 1 contacted Ms LB on the morning of 3 January 2012 requesting that she come to his house. Ms LB arrived at approximately 14h45, after notifying him by phone. Following a brief conversation outside, Accused 1 induced her into the house under a pretext relating to her possessions and led her into a bedroom where the curtains were closed.

The court relied on Ms LB’s account that, in the bedroom, Accused 1 suddenly overpowered her, including placing a towel over her head, and that she was then restrained with ropes and cable ties and gagged with tape. Three masked men (the other accused) were present and involved from an early stage. The court treated it as established that Ms LB was forcibly undressed, assaulted, and that each of Accused 2, 3 and 4 had sexual intercourse with her in turn while others assisted by restraining her, and that Accused 1 subsequently engaged in further severe assaults and sexual violations. The court also accepted evidence that Ms LB’s mobile phone and keys were taken from her during the incident.

The court further relied on evidence of preparatory and contextual facts bearing on planning and participation. These included extensive cellphone contact between Accused 1 and Accused 2 in the weeks preceding 3 January 2012, and the presence and use of items consistent with restraint and masking (including ropes, cable ties, and three pairs of stockings used as masks). The court regarded the totality of these facts as supporting an inference of prior planning rather than a spontaneous or externally initiated assault.

Regarding CB, the court accepted that Accused 1 caused him to come to the house (using Ms LB’s phone), that CB arrived with a friend, and that CB was then shot with a .22 rifle belonging to Accused 1. Ms LB heard CB plead with Accused 1 not to shoot and heard three shots. CB’s body was found dead inside the house. Ballistic and scene evidence linked the .22 rifle to the shooting.

Key disputed facts included whether Accused 2–4 penetrated Ms LB or merely simulated intercourse, whether they acted under duress, whether a revolver was used to compel them (as they claimed), and whether Accused 1 lacked criminal capacity due to a temporary non-pathological condition. The court rejected the versions of Accused 1 and Accused 2–4 in these respects where they conflicted with the accepted facts and the court’s credibility findings.

3. Legal Issues

The central legal questions the court was required to determine were whether the State had proved beyond reasonable doubt the guilt of each accused on each count, including the extent to which the accused were legally responsible for the conduct proved.

A principal issue of application of law to fact concerned Accused 1’s defence of temporary non-pathological criminal incapacity. The court had to decide whether the State discharged its burden to prove that Accused 1 acted consciously and with criminal capacity at the relevant time, taking into account expert psychological evidence and the objective facts of the incident.

Further issues of application of law to fact and evaluative judgment included whether Accused 2–4 were credible in their reliance on compulsion/duress, whether the evidence established rape by penetration notwithstanding the absence of semen/DNA findings, and whether common purpose principles rendered certain accused liable for offences committed in the course of the joint enterprise.

In respect of the attempted murder count, the dispute turned on whether the evidence proved intent to kill (including via alleged foresight of death from trauma, and via the HIV-related allegation), or whether a different verdict was appropriate. This required an assessment of the proved facts against the legal requirements for attempt and intention, and consideration of a competent verdict.

4. Court’s Reasoning

The court reiterated that the State bore the burden of proving guilt beyond reasonable doubt and that the evidence had to be assessed as a totality rather than compartmentalised fragments. It applied established appellate guidance emphasising a “mosaic” approach to proof, weighing reliable evidence alongside evidence found to be false, and ensuring that the ultimate conclusion accounted for all the evidence.

Evaluation of Ms LB as a single witness and the absence of DNA/semen findings

The court treated Ms LB as a single witness on key events in the room and approached her evidence with caution. It nevertheless found her to be a credible and reliable witness who withstood prolonged cross-examination without material self-contradiction and who made concessions where she was uncertain (including that she could have interchanged the order of Accused 3 and 4 in relation to rape).

The absence of positive male DNA on certain exhibits and the lack of semen findings were not treated as fatal. The court accepted the forensic explanation that there were multiple plausible reasons for the absence of positive results (including whether semen was deposited, the quantity, and the possible effect of other substances and drainage). The medical evidence of injury and sexual assault was treated as materially supportive of Ms LB’s account.

The court rejected attempts to undermine Ms LB’s credibility through media publications and media statements suggesting alternative sequences or compulsion narratives. It reasoned that such material was either not properly proved through admissible evidence or was not reliably attributable to Ms LB. It also rejected evidence suggesting Ms LB had told a third party that the accused men were compelled to rape her, finding that version inherently improbable when assessed against the overall evidentiary picture and the accused persons’ own versions.

Accused 1’s version and the incapacity defence

The court placed significant weight on objective indicators of planning, including the preparatory arrangements at the house, the masking, the restraints, and the pattern of cellphone contact between Accused 1 and Accused 2 leading up to the day. It regarded these features as inconsistent with Accused 1’s claimed narrative that three masked men independently attacked Ms LB and that he attempted to protect her.

In considering the incapacity defence, the court applied the principles that the State bears the onus to prove criminal capacity when temporary non-pathological incapacity is raised, but that such evidence must be carefully scrutinised, and the court must decide capacity with regard to expert evidence and all the facts, including the accused’s actions.

The court examined the competing expert evidence. It found that the defence psychologist’s opinion was heavily dependent on Accused 1’s own version of events and that she did not incorporate the court’s findings on the true facts, including the planning and Accused 1’s role. The court concluded that Accused 1 had misled the defence expert by presenting a false narrative. The State psychologist’s evidence, which did not support incapacity and did not accept pathological traits that would have resulted in incapacity, was treated as more consistent with the objective facts as found.

A substantial component of the court’s reasoning was its finding that Accused 1’s evidence displayed selective amnesia at pivotal moments while remaining detailed on surrounding events, and that he was materially inconsistent in both admissions and denials. These features, together with the planning inference, were treated as undermining the incapacity defence and supporting a finding that Accused 1 was criminally responsible.

Reopening of the State’s case

The court allowed the State to re-open its case to lead expert evidence after the defence psychologist testified. The court reasoned that the basis of Accused 1’s incapacity defence was not clearly established earlier, that the defence expert report was not made available before the close of the State’s case, and that the reopening was justified to ensure a fair evaluation of the incapacity issue on a properly informed evidentiary basis.

Accused 2–4: duress, penetration, and common purpose in the offences against Ms LB

The court found that Accused 2’s involvement was not peripheral but central, and that the evidence established a “special relationship” of cooperation with Accused 1. The court rejected Accused 2’s claim that he and the others were compelled at gunpoint, noting internal contradictions and late adjustments in their versions, the absence of any recovered revolver, and the implausibility of the alleged threat narrative when measured against opportunities to escape and the conduct described by Ms LB.

Accused 3 and 4 were found to have adjusted their evidence during the trial to add a claim that Accused 2 and Accused 1 worked together, and the court treated this as an attempt to explain away their inaction and to strengthen an exculpatory narrative. Their continued association with Accused 2 after leaving the scene and their failure to report the events were treated as aggravating features in assessing whether their versions were reasonably possibly true.

On the rape counts, Accused 2–4 denied penetration, advancing a version that they simulated intercourse and could not achieve erection. The court, however, accepted Ms LB’s evidence that penetration occurred and held that each accused raped her while the others assisted. The court also found that the group conduct reflected a joint enterprise, including restraint and assistance, and that the accused associated themselves with one another’s actions in the course of the sexual offences and related assaults.

Murder of CB: liability of Accused 1 and Accused 2, and acquittal of Accused 3 and 4

The court found that Accused 1 was responsible for CB’s death, based on the evidence of the shooting, the .22 rifle, the scene evidence, and the sequence of events in which CB was summoned to the house and shot.

In relation to Accused 2, the court accepted that the established facts supported an inference that Accused 2 had participated in the underlying conspiracy/plan against Ms LB, had knowledge that CB was being called, had awareness of CB’s arrival, and had appreciated the consequences of CB encountering the scene. The court held that Accused 2 subjectively foresaw that Accused 1 would kill CB and thus found Accused 2 guilty as a co-perpetrator rather than merely as an accessory.

For Accused 3 and 4, the court held that there was insufficient evidence to place them in the same position as Accused 2 regarding the murder, and the State conceded that murder was not proved against them. They were therefore acquitted on Count 1.

Attempted murder charge and competent verdict

The court considered whether the assault on Ms LB, though extremely severe, was proved to have been accompanied by the requisite intent to kill. It held that the State did not prove beyond reasonable doubt that the degree of trauma and injuries were of such a nature that the accused foresaw death, as opposed to death being a reasonable possibility in a general sense. The court also rejected the HIV-based attempt murder theory because the evidence only established that Accused 2 tested HIV positive after the incident and did not establish that any accused knew of such status at the time.

The court held, however, that the conduct unquestionably established assault with intent to do grievous bodily harm, and treated this as a competent verdict on the attempted murder count. The court further applied common purpose principles to hold Accused 2–4 liable with Accused 1 on this count, given their active participation and association with the ongoing assault and restraint.

5. Outcome and Relief

The court convicted Accused 1 and Accused 2 of murder (Count 1) and acquitted Accused 3 and Accused 4 on that count.

All four accused were convicted on kidnapping (Count 2) and on rape (Counts 3, 4 and 5) and on the further rape/sexual penetration count attributed to Accused 1 with assistance (Count 6), as charged.

On Count 7, the court did not convict the accused of attempted murder. Instead, it convicted all four accused on the main count (Count 7) of the competent verdict of assault with intent to do grievous bodily harm.

The judgment, as provided, did not include any order as to costs (which is consistent with the ordinary course in criminal proceedings).

Cases Cited

S v Eadie 2002 (1) SACR 294 (SCA)

S v Humphreys 2013 (2) SACR 1 (SCA)

S v Kok 2001 (2) SACR 106 (SCA)

S v Trainor 2003 (1) SACR 35 (SCA)

S v Van Aswegen 2001 (2) SACR 97 (SCA)

S v Van der Meyden 1999 (1) SACR 447 (W)

S v Mbuli 2003 (1) SACR 97 (SCA)

R v Difford 1937 AD 370

Moshepi and Others v R LAC (1980–1984) 57

S v Hadebe and Others 1998 (1) SACR 422 (SCA)

Sithole v S (868/11) [2011] ZASCA 85

S v Thebus 2003 (2) SACR 319 (CC)

Legislation Cited

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, section 3

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, section 5

Criminal Procedure Act 51 of 1977, section 77

Criminal Procedure Act 51 of 1977, section 78

Criminal Procedure Act 51 of 1977, section 79

Criminal Procedure Act 51 of 1977, section 78(1B)

Criminal Procedure Act 51 of 1977, section 94

Criminal Procedure Act 51 of 1977, section 109

Criminal Procedure Act 51 of 1977, section 342A

Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), section 35(3)(g)

Rules of Court Cited

No rules of court were cited in the judgment as provided.

Held

The court held that the State proved beyond reasonable doubt that Accused 1 and Accused 2 were guilty of the murder of CB, while Accused 3 and Accused 4 were not proved guilty on that count and were acquitted.

The court held that all four accused acted with a common purpose in the deprivation of Ms LB’s liberty and in the sexual offences, and that the evidence established the commission of kidnapping and rape counts as charged against all four accused.

The court held that the State did not prove the necessary intention for attempted murder on the facts advanced (including the trauma-based and HIV-based contentions), but that the evidence proved assault with intent to do grievous bodily harm as a competent verdict on the attempted murder count, and that this applied to all four accused on a common purpose basis.

The court held that Accused 1’s defence of temporary non-pathological criminal incapacity was not upheld, and that the objective evidence and the assessment of expert testimony supported a finding that Accused 1 was criminally responsible.

LEGAL PRINCIPLES

The judgment applied the principle that where an accused raises temporary non-pathological criminal incapacity, the State bears the onus to prove criminal capacity, assisted by the inference that a sane person ordinarily acts consciously and voluntarily, and that the evidentiary foundation for such a defence must be carefully scrutinised in light of all the facts, including the nature of the accused’s actions.

The judgment applied the approach that criminal adjudication requires a conspectus of all the evidence, avoiding compartmentalisation, and that the court’s conclusion must account for the entire evidentiary mosaic when deciding whether guilt is proved beyond reasonable doubt or whether an accused’s version is reasonably possibly true.

The judgment applied the principle that expert opinion is evaluated in light of the facts found proved; an expert opinion premised on materially incorrect factual assumptions may carry limited weight, especially where the factual platform is shown to be false or misleading.

The judgment applied common purpose liability, holding that where accused persons actively associate themselves with the commission of offences (including by participation, restraint, assistance, and presence in circumstances of concerted action), they may be held liable for offences committed in the course of the joint enterprise, subject to the requirements of the doctrine as applied to the proved facts.

The judgment applied the principle that where the evidence does not establish the required intention for attempted murder, a court may still convict on assault with intent to do grievous bodily harm as a competent verdict, where the proved facts support that offence beyond reasonable doubt.

S v Kotze and Others (CC119/12) [2013] ZAGPPHC 217 (15 July 2013)