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[2013] ZANCHC 22
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S v Letshwiti (K/S 7/13) [2013] ZANCHC 22 (25 June 2013)
15
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case No: K/S 7/13
Delivered On: 25
June 2013
THE STATE
V
SERAME PIET
LETSHWITI
________________________________________________________________
JUDGMENT
________________________________________________________________
PAKATI J
The accused, Mr
Serame Piet Letshwiti, a male of 34 years, faces a charge of murder
read with theprovisions of
s 51
of the
Criminal Law Amendment Act,
105 of 1997
. The incident is alleged to have taken place in the
afternoon onSaturday 30 June 2012 in Hartswater, JanKempdorp. The
accusedis
alleged to have killed the deceased, Kedibone Ellen
Davids, by stabbing her with a knife.
The accused is
represented by Mr J Cloete on the instructions of the Legal Aid
Board. He pleaded not guilty to the charge. He
elected to exercise
his constitutional right to remain silent and tendered no plea
explanation. The following admissions were
recorded in terms of
s
220
of the
Criminal Procedure Act, 51 of 1977
:
2.1. The identity of
the deceased; and
2.2. That the
deceased sustained no further injuries from the time of her death
till the time the post mortem wasconducted by Dr
Adin Don Surtie.
Mr Michael Masego
also known as Manga, a cousin of the deceased,had visited the
deceased’s mother, Ms SelinaDavids. The
deceased was not at
home. She had spent the night with her boyfriend, Mr MonnapuleLeeuw,
at Mr Sam Mosinki’s premises.
Whilst Michael and Ms
Davidschatted outside the house, the deceased arrived. The accused
also arrived shortly thereafter. The
deceased refused to speak to
the accused.She left again forMonnapule’splace without the
accused noticing. The accused realised
with the passage of time that
the deceased was not home. He disappeared for a while but
returnedand reported that he had been
assaulted by Monnapule, the
deceased’s boyfriend. Michael and the accused proceeded to
Mosinki’spremises where Monnapule
stays. As they approached
Mosinki’s yard Mosinki and Ms AndsyMaoupa prevented them from
entering the gate. Michael corroborated
this evidence.Michael,
Mosinki and Ms Maoupa saw the accused when he pushed the gate with
his left hand and helda knife in his
right hand. The deceased at
that stage stood next to Mosinki’s shanty. Subsequently
Michael heard a noise. When he looked
he saw the accused lifting the
knife and stabbed the deceased in the neck. The deceased ran and
fell in front of the door of
the shanty.
Monnapule came out
of the shanty holding a knob stickand hit the hand of the accused
that held the knife. Michael held the accused
by the hand and went
with him to the deceased and said: “
Man, can you bring me
here to stab our child?”
The accused’s response was:
“
If the police are looking for me tell them they will find
me at my home.”
According to
Mosinkithe accused came to his premises twice on that day. He first
came looking for the deceased. At that stage
the deceased was
standing behind his shanty. He requested the accused to leave
because he realised that the accused wanted to
assault the deceased.
The accused left with the deceased. After some time the deceased
returned alone. The accused also returned
thereafter.Mosinkielaborated and testified further that the accused
chased the deceased who was standing at the back of the shanty.
He
heard him begging the deceased to reconcile with himbecause they had
separated. Soon thereafter he heard the deceased crying.
Henoticed
that the accused had already stabbed her,whereupon she fell in front
of the house.The accused told them that the police
would find him at
his parental home if they wanted him and left. The deceased was then
removed to hospital.Mosinki testified
that he had consumed some
liquor on the day but was cognisant of what happened around him.
Ms AndsyKelebogile
Maoupa stays in a shanty in the same premises as Mosinki. On the day
of the incident she was woken up by a
noise. She went outside to
investigate. She noticed the deceased standing behind Mosinki’s
shanty and Mosinki standing
at the gate. She joined Mosinki at the
gate. The accused approached thegate.She and Mosinki refused him
entry because the accused
was in a fighting mood. The accused left
but returned in the company of Michael, the deceased’s
brother. The accused was
armed with a knife and was still
aggressive. He pushed the gate and gained entry into the premises.
He proceeded to where the
deceased was and stabbed her with the
knife on the right side of her neck. She went around the shanty and
fell in front of the
door. The accused fled the scene.Ms Maoupa went
to call the deceased’s mother, Ms Davids. Monnapule was not
present during
the incident.Ms Maoupa denied that she was not
present when the incident took place.
Monnapule
corroborated the evidence of Michael and Ms Maoupa that he was not
present when the stabbing took place. He testified
that he and the
deceased have had a love relationship for six months when the
incident happened. He saw the accused when he came
to the premises
for the first time. He and his uncle, Mosinki, refused him entry
into the premises. The accused thenleft. Monnapule
did not see him
when he returned. He only came out of the house after the accused
had already stabbed the deceased. He approached
the accusedbecause
he noticed that he still wanted to stab the deceased and was
swearing at her. Monnapule took pecan nut tree
piece of wood from
the firewood and delivered one blow to the accused’s hand that
had the knife. The accused told themto
tell the police that they
would find him at his home. He thereafter ran away with his knife.
Monnapule denied that he assaulted
the accused on an earlier
occasion on that day.
Ms Lillian Lorathu
is a registered nurse and a mid-wife in Jan KempdorpHospital. On 30
June 2012 at about 15h30 she was on duty
when the deceased was
brought to hospital. She had a stab wound on the right side of her
neck and a laceration in her right shoulder.
Her blood pressure was
low. Dr Van Niekerk examined her and gave Ms Lorathu instructions to
suture the wound which she did.She
also gave her an injection to
prevent infection. The deceased spent the night in hospital for
observation.The next day, 01 July
2012, at 07h30she observed that
her temperature was high. She looked stable and was later discharged
with medication to take
home. On 08 July 2012 she returned and was
re-admitted because her wound was sceptic. On 09 July 2012 at 17h30
DrPieter Fischer
examined her. Ms Lorathu last saw the deceased on
09 July 2012.
Dr Fischer
practised as a doctor since 1981. He instructed the nurse on duty to
remove the stitches from the woundand drainthe
abscess. On 11 July
2012 he referred the deceased for x-rays to ascertain the extent of
the abscess and whether other vital organs
were not affected. On 12
July 2012 he was informed that the x-ray machine was out of order.
The deceased was then taken to HartswaterHospital
where x-rays were
done. He heard later that the deceased’s condition
deteriorated and was transferred to Kimberley Hospital.
Dr Russel Rowland
Du Toit, a surgeon in Kimberley Hospital, saw the deceased for the
first time on 12 July 2012. Her wound on
the neck was draining food
particles and pus.He and two other colleagues suspected that she had
an injury in the oesophagus.
They did some tests which confirmed
their suspicion. An emergency surgery in the early hours of 13 July
2012 to save her life
was performed. The deceased died on 19 July
2012. The death was caused by multi-organ failure. According to Dr
Du Toitthis condition
is life threatening and the death of the
deceased did not come as a surprise.
Dr Adin Don Surtie,
who performed the autopsy on 29 July 2012, testified that the injury
to the oesophagus was as a result of
the stabbing. The deceased
developed an infection which spread to the surrounding areas and
tissue of the lungs causing pus formation.
The deceased’s
organs were oedoematouswhich means that there was fluid retention in
the organs as a result of respiratory
distress syndrome caused by
the pneumonia. This resulted in organ failure. The deceased also had
scattered healing localised
subarachnoid bleeds of the brain. This
means that there was an indication that there were small areas of
bleeding in the surrounding
areas of the brain showing that she
sustained head trauma. Dr Surtie recorded the chief post mortem
findings as follows:
“
a.
Swollen left eye with scar;
b. 55mm healing
incision with removed sutures right back at level where arm connects
to back;
c. 60x50mm
healing abrasion left upper back;
d. 170x100
healing bruises left and central lower back;
e. Two areas of
dark discolouration right face – possible healing abrasions;
f. 70x50mm
healing gaping incision with green discolouration right lateral neck
with tract inferior medially towards oesophagus.
History of incision
was sutured but deceased was referred to Kimberley Hospital due to
food and [pus] leakage from wound. Exploration
of wound was performed
and it was found that the oesophagus was injured during the original
stab wound.
g. 20mm sutured
incision of distal oesophagus;
h. [Pus] on left
lung and mediastinum;
i. Bilateral
pneumonia;
j. Minimal bloody
fluid bilateral chest;
k. Oedoematous
organs; and
l. Scattered
healing localised subarachnoid bleeds of brain.”
Dr Surtie concluded
that the cause of death was stab neck with incision of oesophagus and
its complication of pneumonia i.e. pneumonia
was caused by the stab
wound.
The accused
testified that he had a love relationship with the deceased at the
time of her death. On the day of the incident he
was at the
deceased’s home with the deceased and her parents. The
deceased left at some stage. Her mother, Ms Davids, requested
him to
go and fetch the deceased because she had long been warning her
about ‘this boy’, meaning Monnapule. He then
proceeded
to Mosinki’s place. He told Mosinki and Monnapulethat he had
been asked by the deceased’s mother to fetch
the deceased. As
he was going towards the gate he was struck twice with a knob stick
in his eyes. He drew a knife and stabbed
randomly in self-defence as
his eye that was functioning could not see. His other eye got blind
before the incident. Monnapule
hit him on the wrist with the stick
and the knife fell to the ground. He then sat down trying to recover
his eyesight. He thereafter
left the premises.
Outside the
premises the accused met Michael.Michael hit him with a clenched
fist on his face and robbed him of his cell phone
and left. The
accused proceeded to his parental home. He was unaware that he had
stabbed the deceased at Mosinki’s place.
The accused
disputed the following evidence by the state witnesses: (a) That
when he went to Mosinki’s place for the first
time he was
prevented from entering the premises; (b) That Mosinki and Ms
Maoupastopped him from entering the gate;(c) That he
went to
Mosinki’s place with Michael; (d) That when he pushed the gate
he had a knife in his hand held in a stabbing position;
(e) That he
went straight to the deceased who was standing at the back of the
shanty and stabbed herin the neck; (f) That earlier
he went to
Mosinki’s place alone and came back and reported that
Monnapulehad assaulted him; and (g) That after he allegedly
stabbed
the deceased he told Monnapule and Michael that the police would
find him at his parental home.
The crisp issue to
be determined is whether the accused acted in self-defence when he
stabbed the deceased. It is not in dispute
that the accused was the
cause of the injury sustained by the deceased which led to her
death. The accused stated that when he
stabbed randomly he ‘was
totally blind’.
16. There were minor
inconsistencies in the evidence of Mosinkiand Ms Maoupa which are not
material and need not be dealt with.It
would be strange to expect the
witnesses to give exactly the same account of what took place
especially taking into account that
they had consumed alcohol and
that the scene was moving. None of them expected this incident to
happen. I also take into account
that this incident took place on 30
June 2012 and the witnesses testified almost a year later. See
MKOHLE
1990 (1) SACR 95
(A)
and the remarks in
S v OOSTHUIZEN
1982
(3) SA 571
(T)
at 576B-C and 576G-H. See also
S v NYEMBE
1982
(1) SA 835
(A)
at 842E-G.
17. Michael on the
other hand was confronted about his police statement which did not
give every detail of what he mentioned in
his evidence-in-chief. In
his statement he did not mention that he saw the accused when he
chasedand stabbed the deceased. He testified
that what was recorded
by the police officer who took down his statement was a summary of
what took place and he knew that he still
had to testify in court. He
said: “
The reason I did not mention this was because my
intention was that I will testify about others in court.”
In
S v BRUINERS EN ‘N ANDERE
1998 (2) SACR 432
(SE)
at 432I
it was held:
“
The
purpose of an affidavit was to obtain the details of an offence, so
that it could be decided whether a prosecution should be
instituted
against the accused. It was not the purpose of such an affidavit to
anticipate the witness’evidence in court,
and it was absurd to
expect of a witness to furnish precisely the same account in his
statement as he would in his evidence in
open court.”
See also
S v
MAFALADISO EN ANDERE
2003 (1) SACR 583
(SCA)
at 593e-594h.
18. In his own
version the accused testified that Ms Davids told him that the
deceased was cheating on him.Hedid not know who Ms
Davids was talking
aboutbut knew that he would find the man at the place where he went
to fetch the deceased.It isthereforestrange
that he went straight to
Mosinki’s place where the deceased spent the night with
Monnapule. Moreover, when Monnapuleassaulted
him Monnapule did not
say he had a relationship with the deceased. He just intervened on
behalf of the deceased. Michael denied
that Ms Davids sent the
accused to fetch the deceased, her daughter. He was present when the
accused left for Monnapule’s
home. His version of events is
more reliable and consistent with the events of that day.
19. The accused
testified that the deceased’s parents knew about the deceased’s
relationship with Monnapule but did
not tell him. He was angered by
this and felt betrayed because he maintained them financially and
neglected his own family. He
testified that he would never have
allowedMonnapule to take the deceased away from him without a fight.
The accused claimed not
to have seen who struck him with a stick. He
explained:
“
When
I was approaching the gate I just felt being struck with a kierrie
twice on my eyes. I drew a knife and just stabbed at random.
Monnapule blocked the blow and the knife fell on the ground. When I
say he blocked the blow I mean I was stabbing at random and
I could
not see anything and as I was stabbing randomly not seeing where I
was stabbing he hit me with a kierrie on my wrist and
the knife fell
on the ground and afterwards I sat down. Then I heard people saying
stop, don’t kill that person. At the time
my eyesight had
slightly recovered.”
20. The accused
later said that he realized that it was Monnapule who hit him because
the people screamed calling his name and asked
him to stop assaulting
him. He later changed and said that he saw Monnapule approaching him
with a knob stick, 55cm long, just
before he delivered a blow with
it. It is inconceivable that the people screamed when he was hit by
Monnapule but weresilent when
he stabbed the deceased. The witnesses
testified that the accused was never assaulted before he stabbed the
deceased.
21. The accused’s
version that he stabbed randomly with the knife and did not even feel
that he had reached an object is absurd.
He stated: “
I did
not feel it at all. I was stabbing at random. My head was confused
and my eye was bleeding. The strikes by Monnapule were
violent that’s
why I could not feel that I landed on an object”
This is improbable
taking into account that the knife penetrated from the right side of
the neck to the left side where the oesophagus
is situated.The truth
is that the deceased stood behind the shack and he covered quite a
distance to reach and stab her.
22. According to the
accusedhe could not make a call to summon the ambulance after the
assault because he was blind.Nevertheless
hewalked home unaccompanied
and later to hospital.
23. The Court in
S
vCHABALALA2003 (1) SACR 134 (SCA)
at 139i-140b para 15 held that
the correct approach which a court should adopt in evaluating
evidenceis as follows:
“
[15]
The trial Court’s approach to the case was, however, holistic
and in this it was undoubtedly right: S v Aswegen
2001 (2) SACR 97
(SCA). The correct approach is to weigh up all the elements which
point towards the guilt of the accused against all those which
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 on to
one (apparently) obvious aspect without
assessing it in the context
of the full picture presented in evidence. Once that approach is
applied to the evidence in the present
matter the solution becomes
clear.”
24. The evidence of
the accused is a fabrication. Theevidenceagainst him is overwhelming.
He was a poor witness. He was evasive
in answering questions. The
State Prosecutor would ask him a simple question over and over again
without getting an answer until
he abandoned the question. The
accused confirmed that he would never be happy to hear that the
deceased slept with Monnapule because
he was still in love with her.
He even called her his “wife” and was committed to her
for life. He felt he owned the
deceased. He contradicted his own
version. He kept adjusting his evidence as the case progressed. The
clear motive for the attack
was that he knew that the deceased had
moved on with her life butrefused to accept it. That is evidently why
he carried the knife
with and brandished it when he was still at the
gate.
25. Mr Cloete,for
the accused, put to Drs Fischer and Du Toitthat the hospital staff
were negligent in treating the deceased and
that her life could have
been saved if she was given proper treatment timeously. Dr Du Toit, a
specialist in Kimberley Hospital,
corroborated the evidence of Dr
Fischer of Jan Kempdrorp Hospital that it is difficult at the initial
stages to establish that
the oesophagus was damaged. Hence Dr Fischer
referred the deceased for x-rays to establish the extent of the
abscess and to verify
if other vital organs were not affected. Dr Du
Toit testified further thatthe injury was on the right side of the
neck yet the
oesophagus is more to the left side of the neck.This
made it more difficult to suspect that there was an injury in the
oesophogus.
According to him one needs to have a very high index of
suspicion that there is an injury to the oesophagus. He stated that
if
a patient presents with a penetrating stab wound in the neck and
especially if they give a history of blood coming from the mouth,
complain of severe pain when they swallow or if one is able to see
any suspicious drainage from the wound, air or saliva one would
then
suspect an injury. These symptoms were notpresent when Ms Lorathu and
Dr Van Niekerk first saw the deceased. Dr Du Toit only
discovered the
injury after they (he and other surgeons) observed that the wound
drained food and pus.
26. In
S v
COUNTER
2003 (1) SACR 143
(SCA)
the appellant had shot at
thedeceased, causing a bullet to strike her on the buttock. She was
admitted to hospital, where she appeared
to be recovering. However,
the bullet had penetrated her anal canal and, in due course, it
caused a virulent septicaemia, which
led to pneumonia, of which she
later died. The appellant was charged with, and convicted of murder.
The appellant contended that
there was no causal
nexus
between
the wounding of the deceased and her death, primarily in light of the
averment that the hospital staff were negligent in
their treatment of
the deceased.The Court held that there was no evidence that any other
body of medical expertise would reasonably
have discovered earlier
what was not discovered until necrotic tissue was first discovered or
would have treated the deceased with
greater skill or different
options, given the information available. Moreover, whatever
treatment was administered to the deceased,
and even if administered
at the earliest stages of her detention in hospital, there was no
certainty that she would have survived
the onslaught of the
bacteria.The doctor who had been treating her before the necrotic
tissue was discovered was an experienced
practitioner, yet he had
found no valid reason to take the steps which, in retrospect, might
have saved the life of the patient
until two days later. The
operation which was performed on her was one which was done once
sepsis was known to be present. The
Court found that there was no
novusactusinterveniens
. Hence the conviction on murder.
27. In the instant
case it is clear from the evidence by the doctors that the sequence
of events from the time of the deceased’s
admission until her
death had not been interrupted by any causal factor which affected or
changed the natural order of events.
Moreover, there had been no
intervention or omission by any persons responsible for her care.
28. I am satisfied
that the State proved its case beyond reasonable doubt and the
accused’s version is not reasonably possibly
true and I reject
it as false.
29. Having regard to
the instrument used, the delicate location of the stab wound I am
satisfied that the accused committed murder
with the constructive
intention to murder,
doluseventualis
. See
S v SIGWAHLA1967
(4) SA 566 (A)
at 570B-E.
The following
verdict is returned:
The accused is
found guilty of murder of Kedibone Ellen Davids with
doluseventualis
as a form of intent to cause her death.