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[2013] ZANCHC 31
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S v Tau (KS 3/2012) [2013] ZANCHC 31 (11 September 2013)
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19
IN THE HIGH COURT OF SOUTH AFRICA
[NORTHERN CAPE HIGH COURT, KIMBERLEY]
_______________________________________________________________
CASE NR: KS 3/2012
DATE OF JUDGMENT: 11/09/2013
THE STATE
V
TSHEPO KENNEDY TAU
.....................................................................
ACCUSED
_______________________________________________________________
JUDGMENT
_______________________________________________________________
PAKATI J:
The accused, Tshepo Kennedy Tau, a 30 year old male of
Galeshewe, Kimberley, is arraigned on five charges. In count 1 he is
alleged
to have contravened s 3 read with sections 1, 55, 56 (1),
58, 59, 60 and 61 of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 32 of 2007
, read with
s 51
of the
Criminal
Law Amendment Act, 105 of 1997
, and read with s 256 and 261 of the
Criminal Procedure Act, 51 of 1977 (“the CPA”), Rape. In
count 2 he is charged
with murder read with the provisions of s 51
of Act, 105 of 1997. In count 3 he faced a charge of assault with
intent to do grievous
bodily harm, alternatively mutilation of a
body. In count 4 he faced theft and in count 5, assault common. The
allegations are
that the accused raped, stabbed and murdered the
deceased, Sedia Merriam Moemedi, a 51 year old female and also stole
her cell
phones, a Samsung M620 and MTN cell phone. These incidents
are alleged to have happened on 05 June 2011 in Lerato Park,
Galeshewe,
Kimberley. In count 5 the accused is alleged to have
assaulted Segt Gerrit Christofel Faber by spraying him with pepper
spray
on 18 June 2011 at Kimindustria, Kimberley.
The accused is represented by Mr P Nagel on the
instructions of Legal Aid South Africa. He pleaded not guilty and
denied all the
charges. He admitted visiting the deceased on 07 June
2011 and had consensual sexual intercourse with her at her house in
Lerato
Park. Thereafter the deceased instructed him to leave which
he did. He noticed a strange motor vehicle parked at the gate as he
was leaving. He also admitted spraying Segt Faber with pepper spray
but pleaded self-defence. The MTN cell phone was never recovered.
Ms Liza Seretsi, the deceased’s sister, testified
that on 11 June 2011 the deceased’s daughter, Ms Pontsho
Ndaba,
phoned her and enquired whether the deceased was with her in
Bloemhof. She told Pontsho that the deceased was not with her. Ms
Seretsi then decided to phone her elder sister, Ms Selina Kedibone
Sehako to no avail. She later received a report that the deceased
was discovered dead in her house later that day. She last spoke to
the deceased on 04 June 2011.
Selina, her daughter and deceased’s niece, Queen
Sehako, and Ms Louisa Zono also known as Mammietjie, went to the
deceased’s
house to investigate. The gate was locked. They
jumped over the fence and proceeded to the door. The door was locked
as the key
was turned and hanging from the keyhole. Selina unlocked
it and they entered the house. The bed was not made up. The deceased
was lying on the floor covered with a duvet. The deceased was
already dead. Mr Maruping, a neighbour, called the police who
arrived shortly thereafter. The police took over the scene and asked
them to look for the deceased’s identity document which
could
not be found after a diligent search. Upon checking for missing
items they noticed that the deceased’s hand bag and
two cell
phones, a silver Samsung with a slide and an MTN phone, were
missing. The MTN cell phone was in working condition but
the
Samsung’s screen had a problem. There was no forced entry into
the house. The assailant clearly let himself out. The
body was taken
to the mortuary.
Queen last saw the deceased alive the previous Sunday
morning before the Saturday of 11 June 2011 when she fetched water
from
the tap. She did not visit the deceased during that week
because the deceased knocked off late from work, around 17h00. It
was
during winter and it was cold and raining.
On 11 June 2011 Pontsho was called by Mammietjie. She
informed her that her mother had died. She immediately phoned the
accused
but both his phones were off. She called him again after the
funeral but in vain. Neither the accused nor his family members
attended the funeral. Pontsho corroborated Mammietjie’s
evidence that the deceased had a sliding Samsung M620 cell phone
and
an MTN phone. She used the MTN phone to make and receive calls and
for sms’s. She used the Samsung phone to listen
to the radio
since its screen had a problem. She also confirmed the evidence of
Ms Seretsi on these aspects.
Mammietjie testified that she last saw the deceased on
a Sunday, 05 June 2011, prior to the Saturday her body was
discovered.
She had gone to borrow a flame stove from the deceased.
She described the accused’s relationship with the deceased as
that
of mother and son. This was confirmed by Pontsho. She disputed
that her relationship with the deceased deteriorated in April 2011.
In May 2011 the accused told her not to visit the deceased’s
house anymore as she was a nuisance.
W/O Godfrey Williams visited the scene of crime on 11
June 2011 at DH10 Lerato Park. In the bedroom he found deceased’s
body on the floor already dead. Her lower body was naked. He found
no signs of forced entry in the house. The house was neat except
for
the bedroom that was in a mass. He confiscated the deceased’s
pink gown, blue pyjama pants and a panty. The panty and
the pyjama
pants were damp. He allowed them to dry in his office before he
sealed them. He also confiscated an empty MTN box
with IMEI no.
864944005535095. He put these items in separate forensic bags and
sealed them. He also received a sexual kit with
specimens taken
during post mortem examination by Dr Sonata Walraven. He handed the
exhibits to Brian Basil Buys, a W/O in the
South African Police
Services (SAPS) stationed at Roodepan Detective Branch who
dispatched them for forensic investigation in
Cape Town.
Const Simon Mabeleng is attached to the Local Criminal
Record Centre. On 11 June 2011 he visited the scene to take photos
which
he compiled into an album (Exhibit “A”). As he was
busy taking photos he noticed that the deceased’s body was
covered. Segt Kombe removed the cover in order to take photos. He
confirmed that the photos depicted exactly the way he found
the
deceased. No finger prints were found at the scene.
Ms Joyce Moemedi is the sister to the accused’s
late father, Eric Moemedi. She went to the deceased’s house on
11
June 2011 after she heard that the deceased had died. She
immediately phoned the accused as the eldest son and head of the
family
and told him what had happened. The accused sounded
surprised. She asked him to visit the scene. Strangely the accused
told her
that DNA analysis would not take long. He told her that he
was on duty at the time.
Ms Moemedi suggested to the accused that Gloria should
visit the scene since he could not. He told her that Gloria was in a
coma
in hospital. The accused did not attend the funeral because he
was on duty. Ms Moemedi also did not attend the funeral because
the
deceased’s family did not want to bury her in Kimberley but in
Bloemhof. She disputed that she and her sister, Ms Kaletshwe
Moemedi, refused that the accused attend the funeral. She disputed
further that Gloria went to a clinic for a monthly check-up.
Ms Gloria Shuping, also known as Koekie, was the
accused’s girlfriend from 2005. They cohabited in Lerato Park.
During May
2011 she had to live with her grandmother at Witdam
whilst the accused temporarily lived with his mother at his parental
home.
She noticed that the accused had a silver grey Samsung. When
she demanded to know whose cell phone it was he said it belonged to
his friend and colleague, Mr Pascall Tlhalogang. On 09 June 2011 the
accused did not have the Samsung phone with him. She had
two cell
phone numbers of the accused stored in her phone. They were 073 718
1811 and 084 385 1255.
Tlhalogang worked with the accused at Mapogo Security
Company during 2011. He and the accused were good friends.
Tlhalogang testified
that during June 2011 the accused owned two
cell phones, a Samsung and a Nokia. The Samsung, black and silver in
colour, was
a sliding phone. The accused did not use the Nokia for
long. He told him that it was damaged and got himself the Samsung.
He
had another phone after the Samsung. Their employer gave them
official cell phones if they did not have one. The accused’s
cell numbers were 073 718 1811 and 071 737 3074. He did
not know the deceased.
On 19 June 2011 Tlhalogang sent a please-call to the
accused and requested him to inform his employer that he would be
late for
work. Around 16h00 or 17h00 the same day the accused sent
him a sms asking for a place to sleep. He, however, did not respond.
The accused sent a second one and asked if he did not consider his
plea. He again did not respond. The accused never slept at
his place
before. He could not remember if the accused worked on 04 and 05
June 2011. This evidence went unchallenged.
Segt Faber, attached to the Detective Branch in
Roodepan and Johannes Rudolph Louwrens, a Captain attached to the
Organised Crime
Unit in Kimberley, Constable Jacobs and Capt
Duvenhage proceeded to Pro-Liquors in Kimindustria on 18 July 2011
to trace a specific
cell phone. Capt Louwrens introduced himself to
the accused and requested him to hand over his cell phone which he
did. The accused
intimated that his other cell phone was charging at
a charging point in one of the offices. Segt Faber, Capt Louwrens
and the
accused proceeded to the said office but there was no cell.
They proceeded to another office. The accused walked in front.
Suddenly
the accused entered one of the offices, closed the door
behind him and fled through a window. The accused attempted to jump
over
the fence but slipped and fell back. Segt Faber grabbed him.
They wrestled with each other. The accused took out his pepper spray
and sprayed Segt Faber with it in his face. The accused managed to
break free and jumped over the fence. He got stuck in the
devil’s
fork on top of the fence. His pants got torn. He broke free and ran
towards the direction of the golf grounds and
disappeared.
Two days later Capt Louwrens again requested Segt
Faber, Capt Duvenhage and Constable Jacobs to continue the search
for the accused.
On their arrival at the accused’s parental
home they confiscated a Mapogo black combat pants which looked like
the one
the accused had on when he ran away.
On 18 July 2011 Capt Louwrens received documents from
MTN service provider (Exhibit “K”) regarding a user
profile
with an IMEI number 3521 35021 966910 belonging to the
deceased. The purpose of this investigation was to establish whether
the
said MTN IMEI number was used after the deceased’s death.
The investigation revealed that since 05 June 2011 when the deceased
was alleged to have died the accused’s sim card with number
073 718 1811 was used in the deceased’s handset.
Ms Tshegofatso Joyce Tau, the accused’s sister,
testified that the accused lived with his girlfriend, Gloria. Gloria
had
to go to her home temporarily because her sister had a baby.
During 2011 Joyce lived with the accused for a month. On Tuesday 19
July 2011 Capt Louwrens visited her house with three other police
officials. They were looking for the accused in connection
with a
murder case. She realised that the sim card inserted in her phone
belonged to the accused. She did not know the deceased.
She never
retrieved her sim card from the accused. The accused would
interchange sim cards in his cell phone especially when
he did not
have airtime.
On 19 July 2011 Capt Louwrens, W/O Buys and other
police officers arrived at Gloria’s residence in search of the
accused
and the silver Samsung M620 cell phone. In their presence
Gloria received a phone call from the accused’s sister, Joyce.
Capt Louwrens observed that the number that Joyce used was the
accused’s number, 073 718 1811. Immediately they
proceeded to Joyce’s residence, the accused’s parental
home. Capt Louwrens called the 073 718 1811 number and
Joyce’s
phone rang. He then retrieved the Samsung phone and sim card from
her and handed them to W/O Buys. Gloria and Joyce
were later taken
to the police station for questioning. Gloria’s phone was
confiscated by the police. The accused visited
Gloria at her home
the following Friday. She called Capt Louwrens who came and arrested
the accused.
Ms Lerato Teisho had a love relationship with the
accused for four years which she ended when the accused got
arrested. She works
at Jet Stores. She bought two sim cards from Jet
Stores for the accused which she registered (RICA’d) in her
name. The
numbers were 084 385 1255 and 074 693 9160. She
testified that the accused at some stage had six cell phones. She
spoke
to him about it whereupon the accused reduced the number to
two. He used his cell phones mostly for music. She could not
remember
if at some stage he owned a Samsung cell phone. She never
bought sim cards for anyone else besides the accused.
Mr Lukas Stockenstrom, a general worker at Pro- Liquors
testified that during 2011 he worked at All Call Security as a
security
officer. He worked at the same venue as the accused. At the
time he owned a Sony Ericson cell phone. Its sim card was registered
(RICA’d) by his sister, Miss Hester Stockenstrom. He lent his
cell phone with its sim card to the accused on a Friday because
the
accused wanted to listen to music. The following week the accused
returned his phone. Lukas later sold the cell phone. He
could not
recall if the accused returned his sim card. He never lent his cell
phone with its sim card to anyone else except the
accused.
Initially, the accused showed interest to buy Lukas’ cell
phone but pay it in instalments. Lukas refused because
he wanted a
once off payment. Lukas disputed that the accused returned the cell
phone that same day.
Ms Hester Stockenstrom, Lukas’ sister,
corroborated Lukas’ evidence that she registered the sim card
for cell phone
no. 084 644 5498 for him. She added that she
never used the sim card. She registered it before her brother worked
at Pro-Liquors
during 2010.
W/O Buys took over investigations from W/O Williams. He
received exhibits from W/O Williams already packed and sealed. He
sent
same to the laboratory for analysis. He testified further that
on 28 July 2011 he took the accused to Dr Olivier to draw blood
and
obtain hair specimens. The specimens were then sent to the
laboratory for forensic analysis. An application for a section
205
subpoena was made to the cell phone service providers to investigate
whether the deceased’s cell phones and/or sim
cards were used
after the deceased’s death. Having received that information,
a search for the accused took a week before
he was eventually
arrested on 22 July 2011. Dr Olivier confirmed that she drew blood
and obtained hair specimens from the accused.
Matthys Kellerman Hoffmann, a W/O attached to the
Forensic Science Laboratory in the Western Cape as a Forensic
Analyst, testified
that he received a sealed case file for analysis
on 29 September 2011. He evaluated and interpreted the DNA results
of the crime
samples and reference samples pertaining to this matter
by a process requiring competency in Biology. The following
conclusions
were made from the DNA analysis of the exhibits:
“
2.3.1The DNA result of the
gown “E”(FSD-294384) matches the DNA result of the
reference sample “B”, 08D3AB4396MX
(“ TK Tau”;
and
The most consecutive occurrence for the DNA result
from the gown “E-5” (FSD-294384) is 1 person in every
150 billion
people;
The DNA result from the reference sample marked
“B”, 08D3AB4396MX (“TK Tau”) can be read
into the
mixture DNA from the Vestibule Swab 09D1AD9463GB
(“Deceased DR 287/11”.
The most consecutive occurrence for the DNA result
from the Vestibule Swab 09D1AD9463GB (“Deceased DR 287/11”)
for all the possible contributors to the mixture DNA result, is 1
person in every 100 000 people.”
Ms Hilda du Plessis, a Forensic Analyst, testified,
inter alia
, that on 05 June 2011 at 03h12 the deceased’s
cell phone number received a call from the accused’s cell
phone number,
073 718 1811. This call went unanswered to the
voice mail box. At 03h13 the same day the deceased’s cell
phone number
received another call from the accused’s number.
This call lasted 59 seconds. From 06 June 2011 no further calls were
made
or received by the deceased’s cell phone number. Exhibit
L48-L49 indicated that the accused’s phone number made six
calls to the deceased’s number from 12h02 to 03h13. It is also
clear from this exhibit that the accused’s sim card
was used
in the deceased’s handset from 05 June 2011 until 06 July
2011. No further calls were made by the accused’s
cell number
to the deceased’s cell phone number after 05 June 2011.
According to the records from 06 June 2011 calls were
made to the
deceased’s phone number but her phone was not active and those
calls were diverted to the voice mail.
Dr Walraven who performed the autopsy, testified that
the deceased sustained two peri-mortal wounds to the abdomen. These
injuries
did not penetrate the internal organs. She explained
‘peri-mortal’ to mean that the injuries were sustained
just
before death or at the actual time of death as the heart beat
slowed down and the blood pressure fell or just after death. She
also found a small fracture of the stylohyoid attachment of the
hyoid bone. This kind of fracture is 99% of the time consistent
with
manual strangulation and 1% by motor vehicle accidents. This
fracture was ante-mortem which means that the deceased was
still
alive when it was inflicted. Manual force together with the victim’s
struggle is needed to break this bone because
it is strong and does
not break easily. The superficial abrasion she found on the left
anterior chest was a graze wound sustained
whilst the deceased was
still alive. This injury was caused by a blunt object but this did
not exclude a fall. During her examination
of the genital organs she
found multiple
foci
of tissue discoloration. She stated that
it was not possible to discern between contusions and post mortem
discoloration. In
her opinion it was more likely that these were
bruises because if it was just post mortem staining one would expect
to find similar
stains elsewhere in the body which was not the case.
The bruises to the neck and the injury to the vagina were inflicted
at the
same time. In her opinion it was possible that semen could be
deposited four to six days prior to death. It was therefore not
strange that positive semen was found in a period longer than 72
hours.
She recorded the following chief post mortem findings:
“
1.The body of an elderly
female in a state of decomposition which obscures post mortem
findings significantly.
2. Two peri-mortal stab wounds to the abdomen.
3. Small fracture of the stylohyoid attachment of the
hyoid bone.”
She concluded that the cause of death was strangulation.
She also recorded the following: “
Not determined by autopsy
alone. Due to the state of decomposition of the body, it is very
difficult to discern between de-compositional
stains and possible
ante-mortem contusions.”
She estimated the time of death to
be four to seven days before the body was discovered.
That was the case for the State.
The accused, a 30 year old male, testified that on 04
June 2011 he was on duty and posted at the Christian Brothers
College (“CBC”),
a school in Kimberley, from 22h00 until
06h00 on 06 June 2011. During his shift he went to JG Motors, +-2 km
away to get some
food. He worked again on 07 June 2011 at 05h00. He
did not report for duty from 08 to 10 June 2011. On 05 June 2011
whilst he
was on duty at CBC he activated the deceased’s
handset by inserting his sim card in a pupil’s phone when the
pupil
wanted to charge his phone. He noticed that the phone was in a
working condition but the speaker had a problem. He used ear-phones
to overcome this problem.
The deceased was his step mother. After the death of
his father he and the deceased grew closer which resulted in a love
affair.
However, they decided to keep the affair secret because the
community would show displeasure in a relationship between a
step-mother
and son. He last saw the deceased on 07 June 2011 after
20h00 when he took an amount of R1000-00 to the deceased which she
needed
to go to Senekal in the Free State. She and the deceased had
consensual sexual intercourse. He thereafter left around 00h00 after
the deceased received a phone call and requested him to leave. The
gate was locked and he had to jump over the fence.
The accused says the next day he phoned the deceased
but could not get hold of her. He went to the deceased’s place
of residence
but found the gate locked. He decided to return but the
gate was still locked. He jumped over the fence and found both doors
to the house locked. His aunt, Ms Joyce Moemedi, reported to him the
death of the deceased on 11 June 2011. On 13 June 2011 he
met her
when they had a family meeting at his elderly aunt’s place, Ms
Kaletshwe Moemedi. He requested them to accompany
him to the
deceased’s house but they refused. He decided to go alone.
However, his aunts stopped him. His aunts decided
that none of their
family members would attend the funeral. He was not happy with this
decision. He nevertheless decided to respect
it. He disputed that he
stabbed the deceased, raped her or killed her. He also disputed that
he stole her cell phones. The deceased
gave her the Samsung cell
phone to him for repairs. He alleged further that he sprayed Segt
Faber with pepper spray in self-defence.
On 18 July 2011 the accused was on duty at Pro-Liquors
in the camera room checking the camera when he noticed his colleague
at
the gate standing with unknown people. He could hear that the
people were looking for him because his two-way radio was activated.
He decided to approach them. On his way to the gate he met Capt
Louwrens who demanded his cell phone which he handed to him.
Capt
Louwrens also wanted the MTN phone. When he wanted to know who Capt
Louwrens was he became aggressive and hit him twice
with fists on
his chest. He never introduced himself to the accused. They then
proceeded to the charging point. On their way
Segt Faber assaulted
him from behind.
The accused did not find the phone at the charging
point. Capt Louwrens kept on demanding it from him. Capt Louwrens
and Segt
Faber assaulted him again. He then took out his pepper
spray and sprayed between them. He fled the scene and tried to
contact
his manager from another building. After a while he returned
to Pro-Liquors.
The accused confirmed that he had the deceased’s
cell phone in his possession from April 2011. However, he was unable
to
repair it and returned it to the deceased. He also had a Samsung
M620 that looked like the deceased’s. It also had problems
since February 2011. He took both Samsung M620 cell phones, his and
the deceased’s to the repair store. On 03 June 2011
he
returned to the store and received only one phone which did not have
a sticker. He therefore could not identify whose it was
because the
data had been removed with the old parts. He disputed that he told
his aunt that Gloria was in hospital. He further
disputed that he
was at Galeshewe during his shift from 04 to 06 June 2011.
Ms Mpho Ramotsamai, the accused’s mother, and W/O
Williams testified on behalf of the accused. Their evidence did not
take
the defence case any further.
In summary the following points were made:
That the deceased had two cell phones;
That the accused’s semen was found on deceased’s
clothes through forensic DNA analysis;
That the deceased’s cell phone, Samsung M620,
was in the accused’s possession;
That the accused used his sim card in the deceased’s
hand set after the deceased was allegedly murdered from 05 June
2011
to 05 July 2011;
That the accused sprayed Segt Faber with pepper spray;
and
That a call was made from the accused’s cell
phone to the deceased’s number during the early hours of 05
June 2011
and did not phone her again.
The fact that there were no signs of a break-in shows
that the perpetrator was let in by the deceased or the door was not
locked
when the intruder gained access. The only items that went
missing during 05 June 2011 to 11 June 2011 were the deceased’s
two cell phones and her hand bag. Only one cell phone, the Samsung
M620, was found. Nothing valuable was removed from the house.
The
evidence shows that the accused was not only in the neighbourhood
where the deceased resided but contacted the deceased during
the
early hours of 05 June 2011. Shortly thereafter he got possession of
the deceased’s hand set. After 05 June 2011 he
never tried to
contact the deceased again. From this conduct one can draw an
inference that he knew that the deceased was dead.
Thereafter the
accused used several other sim cards not registered in his name in
the deceased’s hand set thereby hiding
his identity.
The existence of a secret love relationship is central
to the exculpatory explanation by the accused and why his semen was
found
on the deceased’s clothes. The deceased’s cell
phone found in his possession is hard to explain because the
deceased
would not give him both her cell phones and remain without
a means of communication. This alleged love relationship is a
fabrication
and is absurd. The State witnesses testified that the
relationship between the deceased and the accused was that of mother
and
son and this was not disputed by the accused. He even called the
deceased “Mmamane” which means small mother.
The State in this matter relies on circumstantial
evidence to prove its case. In
S v REDDY AND
OTHERS
1996 (2) SACR 1
(A)
at 8c-g Zulman
AJA held:
“
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.’ The matter is well put in the following remarks
of
Davis AJA in
R
v DE VILLIERS
1944 AD 493
at 508-9:
‘
The
court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one so taken. It must carefully weigh the cumulative effect
of all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be drawn. To put the matter in another way; the
Crown must satisfy the Court,
not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond reasonable
doubt inconsistent with such
innocence.’”
Segt Faber is a single witness as far as the assault on
him is concerned. S 208 of the CPA provides that an accused may be
convicted
of any offence on the single evidence of any competent
witness. Capt Louwrens corroborated Segt Faber’s evidence that
he
had covered his teary eyes with his hands. The accused pleaded
self-defence as justification for the admitted assault. Self-defence
does not arise when an accused is being lawfully arrested and no
excessive or unlawful force is employed.
The accused was a poor witness. He contradicted himself
on numerous occasions. He was very evasive in answering questions.
He
gave long winded answers and kept adjusting his evidence to fit
in with his fabricated version as the case progressed. When given
an
opportunity to explain contradictions he claimed that there was a
misunderstanding between him and his legal representative.
He had
difficulty explaining why he took his phone for repairs only in May
2011 when it had problems in February 2011 already.
His explanation
of how he activated the deceased’s phone on 05 June 2011 is
not only a fabrication but a desperate means
to justify his usage of
deceased’s hand set as evidenced by the cell phone records. He
disputed the cell phone records
when he could not explain why the
cell phone records showed that he was in Galeshewe from 12h02am
until 07h00am on 05 June 2011.
CBC is in the city centre of
Kimberley. If he was innocent he had no reason to evade the police
from the time of the deceased’s
death.
The accused’s version was full of
improbabilities. It is untenable that the deceased would borrow
R1000-00 from him when
the evidence showed that she had R62 000-00
in her bank account at the time of her death.
Heher AJA in
S v CHABALALA
2003 (1) SACR 134
(SCA)
at 139i-140a had this to say:
“
The approach is to weigh up
all the elements which points 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.”
As far as the charge of assault with intent to do
grievous bodily harm and its alternative is concerned I am not
persuaded that
this charge should stand. The two peri-mortal wounds
to the deceased’s abdomen were inflicted in the course of the
main
intent. If the injuries were sustained just before death or at
the actual time of death or just after death the only reason would
be to make sure that the deceased was dead. This shows direct
intention to kill the deceased. In
S v JABANI
2006 (2) SACR 171
(NC)
at 173a-d Kgomo JP held:
“…
[I]t will be
discerned that, although the State proved the commission of the
crimes of attempted murder and, separately, that of
rape, the
dominant intention of the accused for luring the complainant into his
shack appears to
have been to rape
her at all costs, even if it took extreme measures to immobilise her
to achieve this end. The authors Lansdown
and Campbell SA Criminal
Law and Procedure vol V at 228 say the following in regard to the
test for an improper splitting of charges:
‘
It is impossible to say
that any one of these tests will cover every particular case that may
arise [R v Johannes
1925 TPD 782
at 785] or to lay down any hard and
fast rule which will apply in every instance arising for discussion.
Where the various offences,
committed in the course of the same
transaction, do not permit of separate charges, the accused should be
charged with the most
serious offence, regard being had to his
dominant purpose [S v Brereton
1971 (1) SA 489
(A); S v Shupika
1973
(2) SA 471
(RA)]. In borderline cases which are not covered by one or
other of the tests, the decision of the issue must depend on the
judicial
officer’s common sense and sense of fair play.
[S v Mbulawa
1969 (1) SA 532
(E)].’”
In the instant case the charge of assault with intent to
do grievous bodily harm is tantamount to undue splitting of charges.
The
accused has to be discharged on this count and its alternative.
Having regard to the evidence and the analysis set out
above I am satisfied that the State proved its case beyond a
reasonable
doubt that the accused raped and murdered the deceased.
He also stole her cell phones. I am also satisfied that the accused
did
not act in self-defence when he sprayed Segt Faber with pepper
spray. I therefore reject his evidence as false.
The following verdicts are returned.
On count 1, Rape: The accused is found guilty as
charged for having sexual intercourse with the deceased Sedia Meriam
Moemedi
without her consent.
On count 2, Murder: The accused is found guilty of
murder of Sedia Meriam Moemedi with
dolus directus
as a form
of intent.
On Count 3, Assault with intent to do grievous
bodily harm alternatively mutilation of the body: The accused is
found not guilty
and discharged.
On count 4, Theft: The accused is found guilty of
theft of two cell phones belonging to the deceased.
On count 5, Assault common: The accused is found
guilty of assault common.