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[2012] ZAFSHC 150
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S v Mosia (63/2012) [2012] ZAFSHC 150 (2 August 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No: 63/2012
In
the matter between:
THE
STATE
VERSUS
BORAKI
DANIEL MOSIA
JUDGEMENT:
MOLEFE, AJ
HEARD
ON: 30 JULY 2012
DELIVERED ON: 02
AUGUST 2012
[1] The accused person
is Mr Boraki Daniel Mosia, a 19-year old South African citizen
residing at M30 Phahameng, Ventersburg. He
first appeared before me
in the Free State High Court sitting at Virginia on Monday, 30 July
2012 on three criminal counts.
First count –
murder read with section 51 of the Criminal Law Amendment Act 105 of
1977. The state alleged that the accused
had on the 31 October 2011,
at Ventersburg, unlawfully and intentionally killed an adult male
person named Martins Lehlohonolo
Matlokotsi.
Second count:
Contraventions of Section 3 read together with sections 1, 120(1)(a),
103, 117, 121 and schedule 4 of the
Firearms Control Act, No 60 of
2000
and read with
Section 250
of the
Criminal Procedure Act 51 of
1977
, in that the accused possessed a firearm without a license.
Third count:
Contravention of
Section 90
read together with
sections 1
,
103
,
117
,
120
(1)(a) and
121
, read together with schedule 4 of the
Firearms
Control Act, No 60 of 2000
and read together with
section 250
of the
Criminal Procedure Act of 1977
in that the accused was in unlawful
possession of ammunition without holding a license or permit to
possess ammunition.
[2] Advocate M Moroka
appeared for the state and Mr K Pretorius appeared for the accused as
the defence counsel. Mr K Pretorius
confirmed that Mr Mosia
understood the charges against him and that he had been informed of
the provisions of section 51 of the
Criminal Law Amendment Act 105 of
1997 (“the Minimum Sentences Act”).
[3] Mr Mosia pleaded
guilty to count 2 (possession of firearm without a license) and in
his plea explanation in terms of
Section 112
of the
Criminal
Procedure Act 51 of 1977
through his legal representative, Mr
Pretorius he admitted that on the 31 October 2011, he was in
possession of a firearm without
a license and knew that it was wrong
and against the law to possess a firearm without a license.
[4] Mr Mosia pleaded
guilty to count 3 (possession of ammunition without a license or
permit) and in his plea explanation in terms
of
section 112
of the
Criminal Procedure Act 51 of 1977
, through his legal representative,
Mr Pretorius, he admitted that on the 31 October 2011, he was in
possession of ammunition without
a license and permit and knew that
it was wrong and against the law to possess ammunition without a
license or permit.
Mr Mosia’s
version was that the deceased and he found and picked up the firearm
in the veld and had it in their possession
with the intention of
handing it over to the Police.
[5] The Prosecutor
accepted Mosia’s plea of guilty to count 2 and count 3. I was
satisfied that Mr Mosia admitted to all the
elements of the counts
preferred against him and convicted him as charged on his plea of
guilty.
[6] Mr Mosia pleaded
not guilty to count 1 of murder and in terms of section 115 of the
Criminal Procedures Act in his plea explanation
through his legal
representative, he denied that he intentionally killed the deceased
but that the firearm accidentally went off
and Mr Matlokotsi was
killed.
[7] By agreement
between the Prosecution and the Defence, admissions of 5 (five)
documents in terms of
Section 220
of the
Criminal Procedure Act, 51
of 1977
were handed in as exhibits:
(i) Exhibit “A”
– admissions in terms of
section 220
;
(ii) Exhibit “B”
– report on a Medical Legal Post-Mortem Examination;
(iii) Exhibit “C”
– photographs of the crime scene, recovered firearm and sketch
plan of the scene;
(iv) Exhibit “D”
- a ballistic report in terms of
section 212(4)(a)
and
218
(8)(a) of
Act 51 of 1977;
(v) Exhibit “E”
– Affidavit in terms of Section 212 of the Act of 1977.
Mr Pretorius, counsel
for defence, confirmed the admissions and that I could note them as
formal admissions in terms of
section 220
of the
Criminal Procedure
Act, no 51 of 1977
.
[8] The State called
the following witnesses to proof its case beyond reasonable doubt:
Ms Malefu Miriam Radebe
was called as state witness 1. She testified that she was a 21 year
old residing at Ventersburg and that
the deceased was her boyfriend.
She knew Mr Mosia from seeing him in the company of the deceased.
On the 31 October 2011
at 01H35, the deceased and she came from a tavern and went to the
deceased’s residence where he resided
with his grand-mother.
They went to the backroom and were preparing to sleep when Mr Mosia
came into the room as the door was closed
but not locked. Mr Mosia
told the deceased that he was coming to sleep there but the deceased
informed him that that he could not
as Ms Radebe was there. Mr Mosia
left the room. The light in the room was on and Ms Radebe could see
properly.
[9] After about 10
minutes, Mr Mosia came back into the room and Ms Radebe who was in
bed with the deceased, with the deceased on
top of her as they were
about to make love, heard and saw Mr Mosia cocking the firearm and
shooting the deceased.
She felt the deceased
going limp and warm on top of her and she pushed him to the floor. Mr
Mosia was holding the firearm and Ms
Radebe started screaming. He
threatened her and told her that if she did not stop screaming, he
would shoot her too. He also told
her to tell the Police that she
knew nothing about the shooting.
Ms Radebe asked Mr
Mosia to call the deceased’s grand-mother and she telephoned
the Police after he had left the room. She
told the Police about the
shooting and when Mr Mosia came back to the room she lied and told
him that she was talking to her sister.
At that time Mr Mosia was not
holding the firearm.
[10] Ms Radebe left the
room, still naked to call her friends who lived nearby and the Police
came. She informed the Police that
Mr Mosia (by pointing at him), had
shot the deceased. Ms Radebe further testified that the deceased
never provoked Mr Mosia and
was not even aggressive when he told him
he could not sleep at his home.
[11] During
cross-examination, Ms Radebe vehemently refuted the accused version
as put to her by the defence counsel. She confirmed
that she could
smell alcohol from Mr Mosia but that he was not drunk.
She denied that Mr
Mosia put the firearm underneath the chair after the shooting.
[12] Sergeant S J
Wolmarans was called as state witness 2. She testified that she was a
sergeant in the South African Police Service,
stationed at
Ventersburg, Shift Crime Prevention Unit.
On the 31 October 2011,
she attended to the scene of crime at 1049 Mamahabane, Ventersburg.
She was with a reservist. She went to
the backroom and found the
deceased shot, lying on his back on the floor covered with a blanket.
He had no pulse. She asked the
three people who were standing outside
the yard, who shot the deceased and Ms Radebe pointed at Mr Mosia.
Sergeant Wolmarans introduced
herself to Mr Mosia, told him his
rights and arrested him.
She went back into the
room where the deceased was shot and searched everywhere for the
firearm. It was not in the room. She found
the firearm outside inside
a drum next to the outside toilet. She did not touch the firearm but
left it inside the drum. When the
Local Criminal Regional Centre
(LCRC) team arrived, they took photographs of the firearm, made the
firearm safe and put it in the
evidence bag.
[13] During
cross-examination Sergeant Wolmarans denied the accused’s
version put to her by the defence counsel that the firearm
was found
underneath the chair and that when she arrived at the scene of the
crime, Mr Mosia was inside the backroom with the deceased`s
grand-mother.
[14] Ms Mamotse Elina
Matlokotsi was called as state witness 3. She was testified that she
was the deceased person’s grand-mother.
The deceased was born
in 1993 and was 18 years when he got killed.
Mr Mosia was well known
to her. He was the deceased’s friend and frequently visited
their home. They went to school together
and always did homework
together. She took him like her own child.
On the 31
st
October 2011, her grand-son, Lehlohonolo was shot whilst in his bed
in his room. Ms Matlokotsi heard a gun shot and was later woken
up by
Mr Mosia knocking on her bedroom window and told her to come see her
child.
The both went to the
deceased`s room and she found Lehlohonolo lying on the floor, naked
and covered with a blanket. Mr Mosia told
her that someone fired a
shot in the yard and shot Lehlohonolo and that the perpetrator could
still be nearby or in the yard. There
was blood underneath his arm
and she realised that he was dead.
The shooting incident
affected her badly, especially that she now lived alone and also that
she never knew that Mr Mosia was an
enemy who could kill her child.
[15] During
cross-examination, she refuted the accused version put to her by his
defence counsel that Mr Mosia kept quiet when she
asked him what
happened. She confirmed that she did not know Ms Radebe until after
the shooting incident. Cross-examination did
not elicit anything new
to the defence case.
[16] The defence called
the accused Mr Borani Daniel Mosia as their only witness. Mr Mosia
testified that he was the accused and
was born on the 23 February
1993 and that on the date of the offence on the 31 October 2011, he
was 18 years, 10 months. He was
a Grade 11 student and did not finish
school due to his arrest.
The deceased was his
friend since they were young and in Grade 1. They used to study
together, and went to school together. Mr Mosia
resided in a informal
settlement area with his grand-mother and aunt and he frequently
visited the deceased at his home.
[17] He reiterated his
plea explanation and testified that he was in possession of a firearm
which he together with the deceased
found in the veld in September a
week before the school holidays. He looked for the deceased on the 30
October 2011 so that they
could take the firearm to the Police
Station but only found the deceased late, in the evening at a tavern.
The deceased agreed
that they could take the firearm to the Police
later that day. Later on that night on the early hours of the, 31
October 2011,
he realised that the deceased had left the tavern
without informing him.
[18] He left the tavern
past the deceased’s home, and called the deceased by whistling
and when the deceased came out of his
room wearing boxer shorts the
deceased told him to fetch the firearm so that they could hand it
over to the Police.
[19] Mr Mosia,
testified that went to his home to fetch the firearm and went back to
the deceased’s room. The deceased was
lying in bed on top of Ms
Radebe, talking. Mr Mosia told him that he had brought the firearm
and that they should take it to the
Police. The deceased told him
that he was busy. Mr Mosia took the firearm from his waist and
noticed that it was in a cocked position
and the hammer pulled back.
He tried to uncork it to make it safe and a bullet fell to the floor.
He bent down to pick up the bullet
and he sat on the chair with the
firearm on his right hand. The firearm knocked, or hit the armrest of
the chair and accidentally
fired a shot. He heard the deceased saying
“you shot me”. He put the firearm underneath the chair.
He approached the
deceased and helped Ms Radebe to place him on the
floor.
[20] He testified
further that he went to call the deceased grand-mother and never told
her anything about the accidental shooting.
The Police arrived and
he was taken to the Police Station where he put the firearm. He never
put the firearm in the drum and did
not know who put it there. He
denied that he threatened Ms Radebe after the shooting and never
instructed her to tell the Police
that she knew nothing about the
shooting.
[21] He further
testified that he knew Ms Radebe and that there was no bad blood
between them. Ms Radebe and the grand-mother were
fabricating the
version of the events of the night of the shooting. The Police also
told Ms Radebe to implicate him because on
the night of the shooting,
he was not allowed to be present when Ms Radebe was giving her
statement but when he gave his statement
Ms Radebe was allowed to be
there.
[22] Mr Mosia testified
that when they found the firearm in the veld in September it was kept
by the deceased until after the schools
reopened then he kept it in
his possession at his home for more than two weeks. He wanted to take
it to the Police Station on the
night of the shooting as he was
afraid that people who would come to his home as his grand-father had
passed away would see the
firearm.
[23] During
cross-examination Mr Mosia was exposed to the fact that from where he
was sitting on the chair, if the firearm went
off accidentally it
could not have hit the deceased on the bed as the chair was lower
than the bed. His explanation to the fact
that he insisted that on
the early hours of the morning and when the deceased was clearly busy
with his girlfriend to take the
firearm to the Police was also
questioned.
[24] I heard the
testimony of four witnesses in this case, three witnesses for the
prosecution and one witness for the defence.
Advocate Moroka,
counsel for the state, based on the overwhelming evidence against the
accused, argued for the conviction of the
accused on the murder
charge on the basis that the murder was premeditated.
[25] Mr Pretorius,
counsel for the defence, found it difficult in his closing address to
argue for the acquittal of the accused.
He conceded that the
accused’s version is, in all probabilities not reasonably true.
Based on the evidence presented by the
state, he found no basis for
the court, to ignore the evidence as he conceded that the state
witnesses were trustworthy and credible.
[26] Murder is the
unlawful and international causing of the death of another human
being. The elements of this crime are:
(a) causing the death;
(b) of another person;
(c) unlawfully; and
(d) intentionally.
The Prosecution case is
that the accused intentionally and unlawfully caused the death of
Martins Lehlohonolo Matlokotsi. There
is no dispute that the accused
unlawfully caused the death of the deceased. The dispute is the
necessary intention. The accused`s
testimony is that there was no
intention, as it was a mistake or an accident and he went to great
lengths in an attempt to explain
how the accidental shooting
occurred.
[27] The State led
evidence of a single witness insofar as the commission of the murder
is concerned (or eye-witness).
It is now trite that
evidence of a single witness can be accepted to be sufficient for a
conviction in terms of
section 208
1
anc" HREF="#sdfootnote1sym">
1
of the
Criminal
Procedure Act 55 of 1977
if such evidence is clear and satisfactory
in every material respect
2
.
It is also trite that
“
there
is no rule of thumb, test or formula to apply when it comes to
consideration of the credibility of the single witness. The
trial
judge will weigh his [or her] evidence, will consider its merits and
demerits and having done so, will decide whether it
is trustworthy
and whether despite the fact that there are shortcomings or defects
or contradictions in the testimony, he [she]
is satisfied that the
truth has been told. The cautionary rule referred to by De Villiers
JP in 1932 [in the first Mokoena case]
may be guided to a right
decision but it does not mean that “the appeal must succeed if
any criticism, however slender, of
the witnesses’ evidence were
well founded”
(per
Schreiner JA in R v NHLAPO AD 10 November 1953) quoted in R v
BELLINGHAM).
“
It
had been said more than once that the exercise of caution must not be
allowed to displace the exercise of common sense.
3
”
[28] The state’s
single witness, Ms Radebe testified in a simple straight forward and
clear manner. At the end of her evidence-in-chief
and
cross-examination, I was satisfied that her evidence, despite being
that of a single witness was satisfactory in all material
aspects. I
could find no reason not to accept it in its entirety, especially in
light of the concession made by the defence counsel.
Her version was
also where relevant, corroborated by the other two state witnesses.
Both these witnesses were credible. I had no
reason not to accept
their evidence to the extent that it corroborated Ms Radebe’s
testimony.
[29] On the other hand,
the defence’s witnesses’ version had 1many important
contradictions which I need not mention
in my judgment. His version
has such a lot of improbabilities that one can only come to the
conclusion that it is a made up story.
It does not tally with the
overwhelming evidence by the state.
[30] Having considered
the probabilities and improbabilities of this case and taking into
account the concession made by the defence,
I accept the version of
the prosecution as a credible and reliable account of what happened
on the 31 October 2011 at Ventersburg.
I am satisfied that the
State has proved its case beyond reasonable doubt in respect of the
murder charge as set out in Count 1.
[31] Accordingly, I
find the accused guilty of murder as charged.
___________________
D. S. MOLEFE, AJ
Counsel
on behalf of the
State:
Advocate
M. Moroka
Counsel
on behalf of the
Defence:
Justice
Centre Bloemfontein
Advocate
K Pretorius
1
Section
208
of the
Criminal Procedure Act 51 of 1977
provides: “A
court may convict an accused of any offence alleged against him on
the single evidence of a competent and
credible witness…”
2
R
v Mokoena
1932 OPD 79
at 80
3
S
v Sauls 1981(3)SA 172(A)