S v Oliphant (K/S 38/10) [2011] ZANCHC 4 (3 May 2011)

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[2011] ZANCHC 4
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S v Oliphant (K/S 38/10) [2011] ZANCHC 4 (3 May 2011)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Case No: K/S 38/10
Heard:
01-28/02/2011
01-22/03/2011
Delivered:
03/05/2011
In
the matter between:
THE
STATE
v
FRANS
OLIPHANT
…..............................................................
Accused
JUDGMENT
KGOMO
JP
The accused, a 38 year
old male of Galeshewe, Kimberley, is arraigned before me on ten
charges. The eleventh charge, murder, which
would have been the
culmination of the kidnapping charge (Count 9) was withdrawn for
tactical reasons at the inception of the
trial. Adv (Ms) Catherine
Jansen, a senior state advocate in the office of the Director of
Public Prosecutions, represents the
state and an experienced
attorney attached to the Legal Aid Board, Mr Andries Van Tonder,
appeares for the accused.
Counts 1 to 7 relate
to one complainant, Ms D, of Galeshewe, Kimberley, who was born in
October 1986. She gave evidence in camera
by virtue of the intimate
details of a sexual nature in respect of some of the offences
(S153(3) of the
Criminal Procedure Act
, 51 of 1977 (CPA)).
It is common cause
that during February/March 2006 the accused took a fancy to the then
20 year old Ms D and obtained her cellphone
number from her after
several attempts. This encounter developed into a love relationship
and ultimately into a sexual relationship.
There is a dispute
between Ms D and the accused as regards when the first sexual
encounter took place and when the love relationship
was terminated.
According to Ms D they were first intimate in late 2007 at a place
called Frans’ Farm next to Phutanang
suburb and that their
love relationship came to end in February 2009. The accused on the
other hand contend that their sexual
debut occured in 2006 at the
Karin Muir Swimming Pools and that they parted ways in September
2009. The above summary circumscribes
the period within which the
offences in Counts 1 – 5 are alleged to have taken place.
Counts 6 (Arson) and 7 (Attempted
murder) relate to offences which
are said to have occurred on 14 November 2009.
I wish to state at
this early stage that Ms D was an exceedingly good and honest
witness. At no stage did she embellish her testimony,
nor did she
exaggerate same to portray the accused in a bad light. On the
contrary, were it not for the police ineptitude in
respect of the
assault charge in Count 5 and the kidnapping of Rehanna Kwena
Moshoeshoe (a 15-years old girl) (Count 9) pertaining
to her
disappearance on 21 February 2010, Ms D would only have pursued that
assault charge as well as the Arson and Attempted
murder offences in
respect of which she had layed charges in November 2009. On the
other hand, let it be said already, the accused
was pathetic and a
pathological liar as a witness. Therefore, unless Ms D’s
evidence is inconsistent with the probabilities
or displays clear
error I will prefer her evidence above that of the accused when a
conflict exists. This much Mr Van Tonder
fairly conceded.
I now deal with the
specific offences
.
COUNT 1
:
Assault with the intention to do Grievous Bodily Harm.
The state alleges that
during or about September 2007 the accused wrongfully and unlawfully
assaulted Ms D in Galeshewe, Kimberley,
with the intent to harm her
seriously. Ms D testified that between 2006 and September 2007 the
accused plied her with small gifts
like airtime, chips and
chocolates. They also went to places of entertainment around
Kimberley. They would sometimes go to isolated
spots where they
would just make small talk, kiss and take leave of each other.
More pertinently, a
momentous occasion was the day after the accused had taken Ms D out
to the Choctow Spur in Kimberley where
they had lunch and parted
company around 13h00. The day after the Choctow Spur lunch between
10h00 and 11h00 he drove Ms D to
the ABC Graveyard in Galeshewe. He
locked or caused Ms D to lock all the vehicle doors. He slapped Ms D
and caused her head to
bang against the car window. He tugged at her
braided hair. As he did so he enquired where she had been the
previous day and
what she had been up to. He punched her in the
waist with clenched fists.
The accused also
throttled the complainant intermittently and asked her whether she
loved him. At times she lost her voice as
a result of being
throttled. When she could utter a word she told him that she indeed
loved him. He did not believe her because
he demanded that she
remove her panties for him to inspect her private parts. She
disobeyed him. He did not insist because she
asked for forgiveness
although she had done nothing wrong. The accused admonished her not
to anger “Papa” again and
that he will refrain from
repeating the assaults. He took her home. Her hips were painful
where he pounded her and she sustained
a swelling in the face. She
did not report the incident to the police or to anyone else because
the accused apologised and pleaded
with her to keep the occurrence
to herself.
The accused dismisses
his implication in this occurrence as a total fabrication. His bland
explanation is that not only did he
not assault her but they never
even went to the ABC Cemetery.
I am satisfied that Ms
D did not make up the ABC Cemetery incident and that she was indeed
assaulted and abused as she described.
I am however, not entirely
persuaded that the evidence establishes assault with intent to do
grievous bodily harm. He is no doubt
guilty of assault common.
ON COUNT 1
:
The accused is found guilty of Common Assault.
COUNT 2: Rape
(Read with or as contemplated in S3 read with ss 1, 56, 58, 59 and 60
of Act 32 of 2007, and also read with S 51 of Act 105 of
1997)
The state indicts the
accused with having committed rape in that during December 2007 in
Galeshewe, Kimberley, he raped Ms D or
committed an unlawful and
intentional sexual penetrative act with her without her consent.
Ms D testified that
during December 2007 the accused collected her by car from a
pre-arranged place. She enquired from him where
they were headed to.
He informed her only that it would be convenient for them to park in
the shade and out of sight. He drove
to a place called Frans’
Farm (the identity in names is fortuitous). They kissed and fondled.
The accused proposed that
they engage in sexual intercourse.
Speaking in Afrikaans she gives this narrative (the translation is
mine):
“
I said no,
but he insisted. I said no. He was adamant. He then said he provided
me with everything that I asked of him but I refused
to give him what
he wanted. He said every time when we have to reach that point (“dat
ons moet daar kom”) then I always
have stories.
PP:
When you reach what point? == When we come to the veld.
PP:
Yes = = He insisted. I still refused. I ultimately submitted because
we were in the veld and there was nothing that I could do.
He
undressed himself and put on a condom. I was wearing a short skirt.
He simply pushed it up (to the waist). (She sobbs).
PP:
Drink a bit of water. == He pushed my panty to a side and inserted
his penis into my vagina. He held my hands tight. I told him
that I
will also hold him tight so that he could finish (quickly).”
Ms D testified that
after this unwelcome sexual encounter the accused drove her to an
agreed place where she alighted. He phoned
her later on to enquire
whether she was well and whether she enjoyed the copulation. She
told him she did not because he was
too rough. She enquired why he
was so rough. He told her it was because he had to wait so long (for
this to happen). Asked by
state counsel why she refused to have
sexual intercourse with the accused the complainant said she feared
being caught in the
act (by passers-by).
The implication seems
to be that had the venue been more secluded or more conducive the
consent outcome may have been different.
What I also read into the
situation seems to be more a case that the complainant relented
rather than that she submitted, her
actual words notwithstanding.
She says: “Ek het ingegee” (I gave in). The matter does
not end there though. One has
to look at indicators of what went
before and transpired subsequently, which complicates a decision on
this specific issue:
13.1 The complainant
did not lay a charge of rape until she was approached by the police
in about February/March 2010 after the
disappearance of Ms Rehanna
Moshoeshoe on 21 February 2010. At that stage Ms D was 23 years of
age. She says she did not lay a
charge because the accused expressed
contrition and she forgave his misdeeds.
13.2 It was common
cause that subsequent to the first sexual encounter (on either
version) Ms D and the accused had consensual sexual
intercourse on
numerous occasions. They also continued with their love relationship
until it was terminated by Ms D during February/March
2009.
13.3 More pivotally,
whereas the complainant initially evidently said no, and no means no,
Ms D’s hardened attitude seems
to have mellowed to the point to
which the accused may have interpreted her attenuated conduct as a
change of mind and therefore
consent to sexual intercourse. There was
no assault. I am not in the least suggesting that an assault should
be a prelude to a
conviction on rape.
The accused’s
version, as pointed out earlier in para 3, is that their first
sexual rendezvous was at the Karen Muir Swimming
Pool in 2006.
According to him they never went to Frans’ Farm and that the
alleged act at this place was a figment of Ms
D’s fertile
imagination.
I reject as false the
accused’s denial of the occurrences at Frans’ Farm and I
accept Ms D’s account of the events.
The question that remains
for determination is whether the facts adverted to constitute the
crime of rape. In my view the accused
scorned the complainant; he
abused her; he did not treat her like a lady. Her only complaint to
the accused (and none to anyone
else) when he phoned her was that he
was over-exuberant during the sexual act. Notwithstanding the
complainant’s honesty
and truthfulness and the accused’s
mendacity as a witness I find myself unable to find that the state
proved its rape case
in respect of Count 2 beyond a reasonable doubt.
VERDICT IN
RESPECT OF COUNT 2: RAPE
: The accused is found not guilty and is
acquitted.
COUNT 3: Rape
- (Read with or as contemplated in S3 read with ss 1, 56, 58, 59
and 60 of Act 32 of 2007, also read with S 51 of Act 105 of 1997).
During or about
December 2008 Ms D and her two friends, Ms Motlalepule and Ms
Kgalapa, accompanied the accused to an entertainment
event at the
Kimberley Show Grounds where they met Ms D’s ex-boyfriend by
chance. Ms D exchanged greetings with him. This
excited the ire of
the accused so much so that he promptly ordered that they leave;
prematurely. They dropped off Motlalepule
and Kgalapa (who are
sisters) at their home.
Whilst the two were
driving back home (so to speak) the accused slapped Ms D in the
face. She was a front passenger. She asked
him to allow her to
alight. The accused on the contrary drove faster and told her to
alight with the car speeding. He insulted
her, calling her a
prostitute and pummeled her with clenched fists in the hip. She
screamed and cried. He pulled her hair and
raved on until they
reached an open veld beyond a place called Club 3000. It was then
already after 24h00 at night or the early
morning of the night
before. He ordered her with menaces to undress. As she did so he
continually assaulted her. He threatened
to kill her and said she
did not listen to him and cannot refrain from staying away from
other men. He asked her whether he does
not satisfy her sexually.
When they were both
undressed, Ms D wearing only her brassiere (bra), he asked her to
mount him. She refused. He pulled her braided
hair, jerking her head
backwards. He then gratuitously inserted his finger into her private
parts. She tried to break the grip
on her hair. The accused
simulated sexual thrusts with his finger in her private parts. He
instructed her to suck his penis.
He was not wearing a condom. She
refused. He then banged her head against the steering wheel.
The accused thereafter
insulted the complainant and ordered her out of his vehicle. Except
for her bra and shoes she was still
naked. She left the car in that
state. When she was some distance away he ordered her back, again
with menaces. She boarded the
vehicle because, she says, her clothes
were in the vehicle. She dressed up and the accused drove her to her
place.
Ms D testified that
the accused was still very angry when they arrived at her place. He
ordered her there to undress, which she
did. She remained only with
her bra. The accused undressed himself. He made her lie in contorted
positions. She did what she
was told because she feared being
assaulted once more. She cried. He covered her mouth and scolded
her: “You making noise,
bitch!” He muffled her cries so
that Ms D’s landlady should not be alerted. The accused later
penetrated her sexually
from the rear. No condom was used. He hurt
her. When she complained he told her that is what she was looking
for.
When the accused was
through he took her cellphone and locked her in her room. She asked
him why he did so. He said he would be
back and warned her not to
raise the alarm. It was then around 03h00 in the morning. She was
unable to escape. She feared that
the accused would return at any
time and harm her. She cried and was fearful. The accused returned
at 06h00. He handed back her
phone. He asked her whether she was
alright. She complained of a headache. He went to a nearby shop and
bought her headache tablets.
Ms D states that her
“pre-rape” afflicted bladder was aggravated as a result
of the sexual assault on her. This may
even have been a sequel to
the fist blows to the hip. Her private parts were painful as a
result of the unlubricated sexual intercourse
and the inconsiderate
manner in which the accused went about the encounter. She sustained
a lump to her forehead which resulted
from the accused bumping her
head against the steering wheel. The injury was painful. Motlalepule
Makena noticed the injury and
enquired what happened. Ms D told her
that she fought with the accused. She did not elaborate. Motlalepule
urged her to press
charges. Ms D was reluctant because the accused
threatened to harm her if she did.
Motlalepule
corroborates in broad outline the account given by Ms D on the
events that took place in her presence. In particular
that the
accused abruptly terminated their excursion to the Kimberley Show
Grounds. She also observed an abraded lump on complainant’s

forehead and stated that the complainant reported that the accused
drove her into the veld and assaulted her, but did not expatiate.
The accused denies
that he assaulted the complainant on the occasion of the Kimberley
Show Grounds excursion. In fact he states
that he never went to such
a place with the complainant, Motlalepule and Kgalapa. He says they
went elsewhere and there was a
fifth person, a male, with them. He
further denies that he drove complainant into the veld in the
vicinity of Club 3000 where
it is alleged he indecently assaulted
her. He also denies that he raped the complainant on that occasion.
This alleged rape
incident is different from what occurred in respect of the rape
charge in Count 2 on which the accused has already
been exonerated.
In respect of Count 3 what stands out is that the accused was angry
that Ms D exchanged greetings with her ex-boyfriend.
He cut their
night out short. He dispatched complainant’s friends
unceremoniously so that he could be alone with her. He
assaulted her
as punishment. Matlalepule confirmed the visible injury. He
indecently assaulted her in the veld at Club 3000;
then drove her to
her residence where, far from being loving, displayed some sadistic
sexual deviant behaviour. After ravaging
her he incarcerated her
from 03h00 to 06h00 and removed her means of communication –
her cellphone. He threatened to harm
or kill her if she reported the
incident. She screamed and cried at all these places where he
maltreated her. She clearly and
unequivocally said “NO”
to his sexual approaches but he nevertheless imposed himself upon
her. The mandatory corroboration
in sexual cases was outlawed in
S
v Jackson
1998(1) SACR 470 (SCA) at 474f – 477j.
Complainant clearly
did not consent to sexual intercourse on this occasion. In any event
there is no way that she could have given
any valid consent under
the circumstances already described.
VERDICT in
respect of Count 3: Rape
: The accused is found guilty as charged.
COUNT 4: RAPE
(Ditto).
The state accuses the
accused that he raped Ms D on numerous occasions between January
2009 and April 2009. The evidence at some
point became blurry
because it was common cause that on occasion the pair had consensual
sexual intercourse during this period.
To illustrate my point
I quote excerpts that reflect the most crucial portions of Ms D’s
evidence. In fact, outside of these
quotations there is very little
to discover that is material to this charge.
Ms D secured a
detached fairly decent dwelling at Retswelele, Galeshewe, which she
rented from Ms Sandra Pholo. The year was 2008.
The couple’s
relationship had in the meantime soured to the point of being stormy
and sometimes even acrimonious. Ms D
explains (the translation is
mine):
29.1 “
PP
:
If you say it got worse, what got worse = = Frans phoned me
incessantly enquiring whether I was home. If I was at work he wanted

to know what time I will be home. If I received calls he wanted to
know who called and what we discussed.
PP:
How did he know you received calls? == He always inspected my
cellphone to check who called and what time the call was made.
PP:
Yes == He carried on like that. When I arrived home I found him
there. Waiting for me.
PP:
Yes == Sometimes before I departed for work he was already there even
when I reported on duty at 06h00 in the morning ---.
PP:
He
would arrive before that time (06h00)? == Before it, yes, so that we
could have sex before I go to work ---.
PP:
When it came to the sexual relations what was your feeling? == I
would say no, I am tired. I would say I am about to report for
duty.
He would say no, I will be quick. If I told him I don’t want to
have sex he would say who should he get sex from; I
am his
girlfriend. I must give him what he wanted.
PP:
What would you then do? == He always pinned me down, always. If I cry
he tells me to shut up.
PP:
When he pins you down like that what then follows? == I would push
him away. He would grip my hands. He would then perform quick
sexual
thrusts. I would then just lie still so that he could finish.
Court:
Who undresses who? == He undressed himself--. He would lift my nighty
(nightdress) and remove my panty. We always fought when we
reached
that stage.
29.2
PP:
This practice where the accused just comes and demands sex and you
refuse and he nevertheless proceeds to have sex with you, for
what
period did this endure? == From late December (or from just after
December) 2008 until February 2009.”
During February 2009
the accused pestered the complainant so badly – morning, night
and day – that she decided that
she has had enough and
terminated the relationship. She did so in no uncertain terms: by
telling him it was all over; by not
answering his calls; by not
opening for him except when he collected his personal belongings or
when she later had the security
of her new boyfriend, Mr CT. She
also emphatically rejected any sexual advances or sweet talk.
In my view the
evidence in this respect is too diffuse and fluid to enable the
accused to make or advance a proper defence. This
is so because
apart from what has been addressed in this rape charge (Count 4) it
was common cause that the couple intermittently
had consensual sex.
These latter escapades, and they were escapades, were not identified
or isolated either by way of occurrences
or by specific or
approximate dates. Inherent in this portion of Ms D’s evidence
is serious prejudice to the accused. For
this reason there is no
need to deal with the version or the defence of the accused on this
charge which, anyhow, amounts to
a lukewarm bland denial.
COUNT 4: RAPE
–
The accused is found not guilty and acquitted.
COUNT 5:
Assault
with the intent to do Grievous Bodily Harm.
In this count the
accused is said to have assault Ms D in her residence described in
Count 4, above. Ms D testified that on a
particular day in June 2009
(at least three months after she had broken off their love
relationship) Sandra Pholo (her landlady)
phoned her at work to warn
her that the accused was prowling her street and that she must
access her place unobtrusively by using
a back entrance. On her
arrival Sandra waited for her to ensure she was safe. She was scared
and whiled away time at Sandra’s
place. Later she ventured to
her place to put away the stuff she brought from work and told
Sandra she would be back.
Shortly after she had
entered her dwelling the accused let himself in unannounced. He
closed the door behind him. She told him
he was unwelcome. He
responded: “
Papa just want to talk.”
He asked Ms
D to hug him. She refused. He hugged her against her will and clung
onto her. She tried to push him away but was
unable to. He pushed
her on the bed and throttled her with both hands. She tried to
scream but, understandably, could not. The
accused vice-locked
complainant’s legs with his. She tigerishly clawed his face
with her nails. His face bled and some
skin-tissue lodged in her
nails.
The accused,
apparently after a brief respite, throttled the complainant again.
This interlude must have allowed Ms D a brief
scream. She heard a
frothy sound as someone was filling a container from a tap next to
her place. The accused must have heard
that as well because he
released his grip on her throat. She shouted as loud as she could:
“
Sorry Papa”
. As her vocal cords recovered she
shouted. “
What are you doing!”
She then heard
Tumi (Boitumelo), Sandra Pholo’s daughter, calling out to
Sandra : “
Ms D is inside her room with Frans, they are
fighting.”
As Sandra approached
she spoke aloud and said: “Frans does not have ears. I don’t
know what he wants here. I told
him already that he must keep away
from my premises.” The accused was very angry. He left Ms D’s
dwelling. Sandra
asked him what was happening. He said he had done
nothing to Ms D. Sandra enquired why the accused’s face was
full of scratches
and complainant’s neck was blue. He told
Sandra to ask the complainant what happened and left the premises
through the
backyard. The matter was reported to the police at
Kagisho Police Station. Strange enough the police would not
investigate the
complaint and told Ms D that they deemed this to be
a domestic violence issue for which she should obtain a restraining
order.
Tumi and Sandra also
testified. They confirmed the complainant’s version in all
material respects on aspects which occurred
in their presence.
Sandra further testified on how the accused prowled their street
earlier during the day of this incident;
how she warned complainant
to be vigilant and what measures were put in place to safeguard her
on other days. Tumi and Sandra
were good, credible and undiscredited
witnesses. I accept their and Ms D’s evidence on this aspect
without reservation.
The accused’s
version is that in June 2009 he and Ms D were still in love and that
he had visited her as his girlfriend.
He denied assaulting her. He
accused these three witnesses of having conspired to implicate him
falsely. He has no explanation
why he literally fled from the scene
of crime and why he did not respond to Sandra on what took place
between them. It is evident
that he decamped because he did not want
Sandra and Tumi to see the scratch marks to his face tattooed by Ms
D.
The accused had no
business being on the premises. He was a jilted bitter former lover
who trespassed on the premises. He certainly
intended to cause Ms D
serious bodily harm. She was fortuitously saved from serious harm by
Tumi’s tap running water. I
reject his account as false. I am
satisfied that the state proved its case on this count (Count 5)
beyond a reasonable doubt.
VERDICT ON COUNT
5
:
Assault with the intent to do grievous bodily harm.
Guilty as charged.
COUNTS 6 & 7
: Arson and Attempted Murder.
These counts will be
treated together in that the Arson charge gave rise to the Attempted
Murder allegation on the lives of Ms
D and her boyfriend Mr CT.
These incidents took place during the evening of 14 November 2009.
A bit of background on
what transpired after the accused assaulted the complainant as
described in Count 5 is necessary. The complainant
testified that
there was a period of about a month during which the accused did not
phone or contact her or lurk around her premises.
The phone calls
then started pouring in from him. Shortly thereafter the accused had
the temerity to text (SMS) her his full
names, identity number and
residential address and dared her to interdict him. After the lapse
of sometime, apparently a matter
of weeks, he enquired whether Ms D
carried out her legal threat. The complainant never obtained the
interdict. The reasons are
not material for a decision in respect of
Counts 6 and 7.
Ms D, feeling being
stalked and harassed by the accused, who had also bombarded her with
text messages and threats to her life,
acquired a new cellphone
number. The accused then sent his friend, Mr Robert Edwards (who
testified on these matters and the
kidnapping charge in Count 9),
and complainant’s friend, Carol, to plead for forgiveness and
to tell Ms D that he still
loved her. He also sought her contact
numbers through them, to no avail.
During November 2009,
but before her place caught fire on 14 November, Sandra phoned Ms D
over several days to alert her that
the accused is back on the beat
prowling her neighbourhood and cautioned her resultantly to watch
her back. The complainant also
saw the accused on several occasions
in the vicinity when she was off duty. He was just loitering.
On the night to which
the Arson and Attempted murder charges relate (14/11/2009) Ms D was
in the company of her boyfriend, Mr
CT, in her residence. It was
before 20h00. She heard the distinctive knock of the accused on her
door. The knocker did not identify
himself/herself. She peeped
through a window but saw no one. The couple immediately thereafter
decided to visit Mr CT’s
mother in Madalane Section in the
Kimberley area. Ms D reported to Sandra what had happened and told
her they would be back later
that evening.
At around 22h00 Tumi,
referred to in Count 5, phoned Ms D and reported that her place was
on fire. Complainant thought Tumi was
joking. It took Sandra to
nudge the pair into rushing back. On seeing the destruction of her
property, Ms D had done fairly well
in accumulating some assets, she
passed out and regained her consciousness much later in Sandra’s
house. To add insult
to injury the complainant paid for the
refurbishment of her burnt out place, let alone replacing her own
household goods.
The state relies on
circumstantial evidence bolstered by an alleged confession the
accused made to David Moshoeshoe, a fellow
prisoner at Kimberley
prison.
The state adduced
evidence to show that the accused is passionately possessive. This
was shown by the accused throwing tantrums
at the Kimberley Show
Grounds when Ms D merely exchanged greetings with her ex-boyfriend.
Robert Edwards, his friend, says the
accused shielded Ms D from him
like an alpha-male even though he made no move on her. The evidence
thus far adverted to and other
instances that need not be canvassed,
is demonstrative of the fact that the accused just about kept Ms D
under 24/7 surveillance.
If he could he would have kept her in a
capsule to which only he had access.
The accused has
threatened Ms D face-to-face that if he cannot have her no one
would. He would kill her and commit suicide. He
repeated this to
Robert Edwards, prompting him to try and mend relations between the
pair to avert such a catastrophe. It was
common cause that before
the arson incident, but after Ms D nullified their relationship, the
accused saw her and Mr CT together
in Ms D’s room. He summoned
Ms D’s aunt to mediate. When she could or would not do so he
used Ms D’s cousin,
Letlhogonolo (Tlhogi) as a ploy and decoy
to gain access to her residence. Once he was inside he caused a
scene and drew a knife
on Mr CT.
State counsel argued
vehemently that the accused had a strong motive and ample
opportunity to eliminate both Ms D and Mr CT. She
submitted that
when he set the place on fire he was merely fulfilling his earlier
threat.
This is where the
evidence of David Moshoeshoe comes in on this subject-matter. David
testified as follows:
“
PP:
Ja ==He mentioned a lady by the name of [Ms D]. He said Ms D was his
ex-girlfriend and then he said Ms D was trying to spite him,
so Ms D
had to open another case against him. And then he said that
previously he tried to burn Ms D inside the house where she
was
living, but [un]fortunately Ms D was not there in the house.
PP:
He
tried to burn Ms D in the house where she was living. == Ja, but Ms D
was not in the house. That is what he told me.
COURT
:
But unfortunately she was not in the house? == Ja, unfortunately she
was not in the house.
PP
:
Yes == And he said that if he can get bail, if he can go out on bail,
he will kill Ms D. But from the facial expression that he
gave me I
could see that he meant what he said.”
David testified how he
had gained the accused’s confidence. The details on how he
went about will emerge when the kidnapping
case, Count 9, is dealt
with. David proceeded to say that he did not know Ms D before the
accused spoke about her. The accused
was in his sound and sober
senses and was not coerced or unduly influenced when he made this
and other statements to be addressed
in Counts 8 (the theft of a
laptop) and Count 9.
Mr Van Tonder, for the
accused, contended that the attitude or version or defence of his
client is that all these statements attributed
to his client, in
particular by David, never took place. In elaboration he stated that
his client was not and indeed could not
have been forced or unduly
influenced to make the statements that he was not the author of. The
accused elected at the trial-within-a-trial
stage not to controvert
the evidence pertaining to the statements imputed to him. I
accordingly admitted the accused’s
statements in evidence.
At the close of the
trial, having heard accused’s evidence on this aspect as well,
which amounts to a bare denial, I have
no reason to change my
earlier ruling having regard to the question of credibility on both
sides. David was an impressive witness
with a phenomenal memory and
a head for detail. It will be seen much later that the state
produced independent evidence to corroborate
his evidence on a
number of matters he testified to or there exists circumstances
reducing the risk of a wrong conviction. See
S v Hlapezula and
Others
1965(4) SA 439 (A) at 440D - H.
Ms D and Mr CT
testified that they had switched off the electric lights and the
electric stove was also off when they left. There
were no fuelled
lights (candles, paraffin or gas lights) on.
The undisputed
evidence of Captain Gerrie Steenkamp, a trained escort of a Fire
Investigation Dog, testified that his dog did
not detect or catch
the scent of any accelerant like petrol, diesel, spirits, paraffin,
turpentine or the like. The investigation
by him was only carried
out on 16 November 2009 (two days later) because he was the only
trained/expert officer in the Northern
Cape Province and was
committed elsewhere. According to the captain the fire was started
at the curtain of a broken window which
caused the bed and bedding
underneath it to catch fire, which fire engulfed the place and
destroyed the contents.
There may be some
discrepancy in the evidence of David and Capt Steenkamp. During the
cross-examination of David by Mr Van Tonder
the following emerged:
“
PP:
Did he tell you how he set fire to the house? == Ja. He did.
PP:
How did he burn the house? == He said that he poured petrol around
the house and lit it.
PP:
Did he tell you the time that he set fire to the house, did he know
whether Ms D was inside or not? == He didn’t indicate,
but it
appeared to me that he did not know because for the fact that he
mentioned that his intention was to burn Ms D. It simply
meant that
he did not know that she wasn’t inside.
PP:
Now I want you to comment on this if you can. The evidence regarding
the arson case showed that the fire was started at a window
of the
house or the room. == I won’t have knowledge of that because he
did not mention that to me. All I know is just that
he burned the
house.”
In my view this
discrepancy is not material because the accused admitted in the
statement to David to burning the place with the
specific intention
to kill Ms D. Mr Van Tonder conceded that David’s evidence on
this point is fatal against his client if
accepted.
When the accused
failed to secure the assistance of David to have the docket
involving Ms D destroyed, he independently contacted
an
administration clerk at the Kimberley Magistrate’s office, Ms
Meschia Kedibone Boikanyo, several times with a view to
having the
docket disappear from the prosecutor’s office for a fee. The
accused conceded making the enquiry about the docket
but claims that
he did so just for his information.
As I pointed out
earlier, David did not know Ms D and knew nothing about the arson
and attempted murder. I am satisfied that the
accused confessed to
David concerning Counts 6 and 7. Taking into account all the
evidence alluded to above, some pieces of which
are very strong and
others less so, the cumulative cogency thereof ensnare the accused
in a net from which he cannot escape.
VERDICT ON COUNT
6 AND 7 (Arson and Attempted Murder
): The accused is found guilty
as charged on both counts.
COUNT 8: Theft of
a laptop computer.
The evidence against
the accused, though circumstantial, is overwhelming. A substantial
part of the evidence was adduced on whether
the accused purchased
the laptop from one Moliko or Moleko and whether this nebulous
individual worked for Stuttafords Van Lines
furniture removals or
for an entity called Work Force Group that outsources its workers
commercially to other employers for a
specific or undetermined
period. Said with due deference, most evidence on this count was
presented
ex abudante cautela.
It is common cause
that the laptop belongs to the 14 year old Vera-Ann Van den Broek.
That much was testified to by herself, her
mother (Mrs Elizabeth
Maria Meijers) and Const. Barend Christiaan Jovner, a forensic
analyst of electronic equipment, attached
to the Cyber Crimes Unit
of the South African Police Service (SAPS). The latter examined the
laptop forensically and linked its
rightful ownership to Vera-Ann
whose residential address was also sourced through this method. It
is an Acer laptop valued at
R10 000-00.
Vera-Ann, her mother
and sister were relocating from Kimberley to Langebaan, Western
Cape. During the morning of 04 December 2009
three employees of
Stuttafords, among them the accused, were packing the goods and
household effects belonging to Mrs Meijers
and her daughters. The
naive and trusting Vera-Ann concealed the laptop underneath her
underwear in a large sports bag. These
garments were not a put-off
to the thief who extricated it. No one saw the nimble-fingered
thief.
The goods were stored
at the Stuttafords warehouse for a few days, apparently because two
different families co-ordinated their
removal. When the truck
arrived a few days later at Langebaan the laptop was gone. Mrs
Meijers reported the loss. Stuttafords
informed her that there was
nothing that could be done for her because the goods were not
insured. Mrs Meijers testified that
she could not afford the
insurance but was surprised at her daughter’s naivety or
immaturity.
Cathy Riet, Ronel
Roderick, Christiaan de Lange, Joe Modikwane, Itumeleng Johannes
Potele, Faried Camroodien, Tsholofelo Moncho
and Tebogo Mokwena
testified to effect that the accused had access to the laptop during
the time that the goods were packed at
Queens Road 5, Kimberley, and
after they were temporarily off-loaded at Stuttaford Van Lines
premises. It is common cause that
when the goods arrived at
Langebaan with the truck, the laptop was already removed or
concealed where only the accused knew.
None of the witnesses knew a
Moliko or Moleko who worked at Stuttaford Van Lines or the Work
Force Group. The accused adjusted
his testimony by saying that the
workers were known by their full names and not their nicknames at
work as Moleko or Moliko was.
The probability is that the accused
furtively slid the laptop into the knapsack that, it was common
cause, he carried with him.
The laptop was
unwittingly discovered through David. Having wormed his way into the
accused’s trust the accused confided
in David that he wanted
the dockets pertaining to the cases of the disappearance of Rehanna
Moshoeshoe (Count 9) and, in particular,
the one pertaining to
charges layed by Ms D against him to disappear for a fee. David,
playing along, offered to come to his
rescue through some of his
friends. David told him to produce an agreed amount of money for the
bribe first.
Pursuant to this
arrangement the accused wrote the following letter to his cousin,
Philadelphia “Delfie” Paatjies:
– Exhibit “D”
(translated):
“
Delfie it is
Frans. Give the laptop to my friend Schweps please. He will sell it
for me and bring the money. I will appreciate it
thank you. Don’t
worry he will help me. I miss you [plural] and the children a lot.
Please visit me.
540 E.K Banda
Street, Retswelele
Case 234-02-2010:
Kagisho Police.”
“
Schweps”
is the name that David is popularly known by. It is a derivative of
his surname “
Moshoeshoe”,
not a coldrink.
David said the
following under cross-examination by Mr Van Tonder:
“
Van
Tonder
:
What did he tell you? == He said to me that he worked at Stuttafords.
Yes? == So there was
one couple somewhere in Kimberley whom they had to remove their
furniture. Apparently according to him the
couple had split or
divorced. So the other one was heading to Cape Town. So the stuff
that they packed into the truck, he managed
to steal a laptop which
was in a box.
Did he tell you what
he did with the box that the laptop was in? == No. He didn’t.
He just told me that he took it home. He
did not tell me what he did
with the box. But I assumed that maybe he destroyed it.
So he didn’t
tell you how he managed to steal the laptop?
== As I have said he
told me that the laptop was in the truck. So he stole it and he hid
it in the truck. So when they came back
from Cape Town, that is when
he took it home.”
David gave the letter
to Rehanna’s mother, Mrs Moshoeshoe, who gave the letter to
the police. The police recovered the laptop
through the aid of the
aforesaid Philadelphia Paatjies.
There is no doubt in
my mind in light of the aforegoing evidence, and the other evidence
that need not be dealt with, that the
accused stole the laptop. That
explains why he did not keep it at his home. Moleko or Moliko is
merely a ghost created by the
accused. The state has therefore
proved the theft of the laptop beyond a reasonable doubt.
VERDICT: COUNT 8
– Theft of the laptop:
The accused is found guilty as
charged.
COUNT 10:
Assault with the Intent to do grievous bodily harm.
It is convenient to
deal with this charge at this stage. On 06 March 2010 whilst the
accused was being interrogated on various
charges canvassed in this
trial he attempted to commit suicide by cutting his wrist and trying
to disembowel himself with a broken
bottle during a break. Warrant
Officer John Chris Seeley, who was upfront in a dash to prevent him
from ending his life, narrowly
avoided being struck by the broken
bottle which the accused hurled at him. Warrant Officer Seeley and
the other police staunched
the accused’s profuse bleeding.
The shards which were
caused by the bottle shattering against a wall in the interrogation
room are clearly depicted in the photos
taken of an undisturbed
scene of crime.
The accused denies the
allegation and falsely claims that he was tortured. He even, wonder
upon wonder, denies that he tried to
commit suicide! The evidence
against him is overwhelming. No less than seven witnesses (including
two Colonels) testified on
the same aspect. Whereas the state must
be commended for its endeavour to present a watertight charge the
evidence on this aspect
was a bit over the top.
In the end the state
proved no more than an attempt to do grievious bodily harm. The
intent was there. The missile, a dangerous
weapon, did not find its
mark. The apprehension of danger by Seeley and the instillation of
fear in him was fleeting.
VERDICT: COUNT 10
–
The accused is found guilty of attempted assault to do
grievious bodily harm.
COUNT 9: The
kidnapping of Rehanna Moshoeshoe a 15 year old student of Girls High
School, Kimberley.
The state charges that
the accused abducted Rehanna on Sunday 21 February 2010 from
Galeshewe, Kimberley. It is common cause that
she has, after more
than a year, not been found nor has she made contact with her
loving, but divorced, parents or with her best
friend, Keneilwe
Grace Motaung, who gave the Court some insides on what Rehanna
planned on doing on Sunday, 21 February 2010
when they communicated
via Mxit deep into the night on Saturday, 20 February 2010.
For tactical reasons
the state withdrew the charge of murder against the accused at the
inception of the trial. Having listened
to the evidence I appreciate
the dilemma the state finds itself in. This is best illustrated by
the people she is/was part of,
namely her parents Mrs Moshoeshoe and
Mr Moshoeshoe. Mrs Moshoeshoe would want us to speak of her vanished
daughter in the present
tense because she hangs on to her faith, a
wing and a prayer that Rehanna is alive somewhere but unable to make
contact. Her
father maintains that he is a realist and heaps high
praise on the police that they left no stone unturned to locate his
daughter.
In his own words, he says: “
I believe that
Rehanna is no more.”
The present tense it shall be because
the accused is in no jeopardy of being convicted of murder.
The crime of
kidnapping has been defined and described in the
South African
Criminal Law Procedure
,
Volume II, Third Edition
by
Milton
as follows :
“
Kidnapping
consists in unlawfully and intentionally depriving a person of
liberty of movement and/or his/her custodians of control.
This definition was
approved and followed in
S v Blanche
1969(2)
SA 359 (W) at 360D;
S v Els
1986(1) PH
H73 (A);
S v Mellors
1990(1) SACR 347 (w)
at 350i. The definition of Snyman Criminal Law 437 is:
‘
Kidnapping
consists in unlawfully and intentionally depriving a person of
his/her freedom of movement and/or, if such person is
a child,
his/her custodians of their control over him/her.’”
I also align myself
with these definitions.
First, how Rehanna
came to know the accused. The day that Rehanna’s parents would
wish to curse is Saturday, 23 January
2010. This is Keneilwe
Motaung’s account. She was in the company of Rehanna, walking
in Galeshewe. A black BMW 1C of the
latest model drove past them.
They just loved the car, and were not interested in its occupants,
who turned out to be the accused
and the aforesaid Robert Edwards.
Of importance is that Rehanna supplied her cellphone number to the
accused, who tested the
correctness thereof by phoning the number.
This is how she captured his number: +2782 488 7854. The vehicle was
driven by Robert.
It was his car.
The accused introduced
himself as Thabo, a fictitious name that he used to deceive those
who did not know him. Whether Robert
and Keneilwe exchanged contact
numbers is of no consequence because they were never subsequently in
touch. The accused asked
whether he could phone Rehanna later. She
agreed. Keneilwe and Rehanna walked to their original destination
whilst the accused
and Thabo drove off. Later that same afternoon
(Keneilwe estimates it could have been 17h00) Thabo (the accused)
called Rehanna
and said they were in Green Street, West End suburb,
and enquired whether they could meet. The issue was left hanging.
Around 20h00 –
21h00 whilst these girls were watching movies (films) at the home of
a girlfriend, Nanase, the accused phoned
Rehanna again. Rehanna
reported this to Keneilwe and suggested that they should go out.
Keneilwe testified: “Hey man, I
was like – we are not
going there.” Rehanna’s brother, Hussain Moshoeshoe, who
was present, vehemently opposed
the meeting. In the end Rehanna’s
father took the siblings and Keneilwe home. Little did Hussain know
or suspect that he
will hear a lot in two months’ time about
Thabo/Frans Oliphant. The calls that accused made to Rehanna on 23
January 2010
will be dealt with at a convenient stage.
Keneilwe never met
Thabo after this initial encounter nor did she and Rehanna ever
speak about him until Saturday 20 February
2010 – a day before
her disappearance. They spent the whole eve of Rehanna’s
disappearance together at church and
later watching TV, chatting and
just relaxing. Rehanna made no mention of the accused (Thabo) until
later during the night when
they were at their respective homes. A
few snippets from Keneilwe’s evidence relating to the Mxit
chat she had with her
best friend Rehanna and what Rehanna’s
thinking was follows:
78.1 “
And why
and when did she mention Thabo? ==
She mentioned Thabo
at night. She asked me to guess who is taking me shopping. Then I
guessed wrong and then she told me it was
him.
COURT:
I missed something there. It was at night? == At night on mxit.
She asked me I should guess who is taking her shopping and I guessed

wrong and then she told me that it was him.
It was Thabo? ==
Thabo.”
78.2 “
Ms
JANSEN
: And what was your reaction when she said Thabo
was taking her shopping? == I put a face, like an astonished face.
Sorry? == I put a
grim face, like a shocked face on and then I was like really! And I
asked her when?
And what was
Rehanna’s reaction? === She told me we are leaving tomorrow. I
did not question like why is he taking you there
or what are you
going to do. I only asked her when and she told me tomorrow and then
after that she told me that they were going
to Identity and he will
give her R800-00.
COURT:
They are going to Identity and what about R800-00? == And he was
going to give her the R800-00 for the clothes.
Identity is a
clothing store? Is it? == Yes.
Ms JANSEN
:
Where is this Identity Store? == There are two of them. She did not
mention – she was not specific. She just said Identity.
There is one in town
and there is one in the mall?==She did not like – be specific.
Yes. == And then she
asked me like do I not want to go with her, to go shopping tomorrow.
COURT:
This is the following day now? == This is the same night.
No, she said do you
not want to go with her the following day. == The following day.
Ja. == And then
after that I told her by then that okay cool, we could go together.
And then later on we started to make jokes of
what could happen, like
I told her that they are going to rape us and kill us.”
[79] Rehanna told
Keneilwe that the accused was going to buy her clothes for the Lira
Concert to be staged on Saturday 27 February
2010 (Lira is a popular
South African lady singer). Keneilwe thought that she had persuaded
Rehanna to defer the shopping to Friday
26 February 2010, a day prior
to the Lira Concert. The girlfriends stopped chatting on Mxit between
23h00 and 24h00 because Keneilwe
says she felt drowsy.
On Sunday 21 February
2010, the eventful day, Keneilwe spent the day at home. She did not
attempt to speak to Rehanna for the
entire day. Before she went to
school on Monday, 22 February 2010, Rehanna’s mother arrived
at Keneilwe’s parental
home and enquired whether Rehanna had
slept over there the Saturday night. She gave a negative answer.
When asked where Rehanna
could be or what could have happened to her
Keneilwe said she had no idea. She thought she was covering up for
her missing friend
to avoid conflicting versions when Rehanna shows
up.
Rehanna, who was her
school mate, did not show up at school that Monday morning.
Enquiries were pouring in to the principal, staff
and learners from
various quarters. The enormity of the situation sunk in and Keneilwe
co-operated fully with the authorities
and Rehanna’s mother in
particular, as her evidence reflects. On Wednesday, 24 February
2010, Keneilwe called Rehanna on
her cellphone without any success.
She then sent messages on Rehanna’s Mxit page and on her
facebook, which messages went
unanswered.
Keneilwe says that
Rehanna was her parents’ pride and joy. Her mother spoiled her
a lot. Her father, she says, was a bit
strict but was apparently
fair and loving. Asked about Rehanna’s personality she says:
“
Wow okay, she is very trusting with everyone. She was the
kind of person like if – between me and her, I am the one who

always had the bad attitude. She was quite always happy and should
you cry, she cries with you.”
Keneilwe displayed
such a mature and calm disposition. Occasionally swallowing hard
when she spoke of her friend’s disappearance
or when she put
her foot down as when she told Rehanna that was not the route to
follow. Keneilwe spoke directly in English and
did not use an
interpreter. She was an exceedingly good witness. Indeed Mr Van
Tonder, accused’s counsel, stated in cross-examining
Keneilwe:
“
Now, the
accused agrees with rather a lot of your testimony. I am just going
to tell you or show the points where he disagrees with
you.”
The only aspect of
significance that counsel probed was whether Keneilwe was certain
that the “
Thabo”
that Rehanna referred to was the
same Thabo that they had met on 23 January 2010. Keneilwe said it
was because that was the only
Thabo that the two of them knew. This
aspect subsequently became a
non sequitur
(non-event) as the
accused himself or through his counsel conceded at least that there
was an agreement to meet Rehanna for shopping
the following weekend
(26/27 February 2010). The accused also admitted (there was no way
past the phone records) that he was
in telephonic contact (verbally)
and via SMS with Rehanna until after 23h00 during the eve of her
disappearance (Saturday, 20
February 2010).
Rehanna was staying
with her mother, only. Hussain, her brother, stayed with his father
elsewhere. Mrs Moshoeshoe testified that
on Saturday, 20 February
2010, Rehanna arrived home at 18h00 from the afternoon session of
the Seventh Day Adventist Church (a
Saturday Church) which she
attends with Keneilwe. Rehanna did not leave home that evening. Mrs
Moshoeshoe knew nothing about
the many calls Rehanna received or
communications she was involved in that Saturday evening.
The Sunday morning, 21
February 2010, Mrs Moshoeshoe woke up first and did some household
chores. She relates Rehanna’s
last moments with her:
“
Ms
JANSEN
:
Yes you can continue. == And now and then when I went into the house
I heard her phone ringing in the bedroom. And then at about
past
08:00 she woke up. She went to wash herself and in-between her phone
was ringing. So at the time when she went out it was
around past
09:00, but I am not sure, but it’s after 09:00. I was still
outside watering the lawn. She stood at the door
saying then Mums I
am coming back now. I asked her where she was going to.
Ms JANSEN
:
Yes? == She said she is going to town. I asked her what she was going
to do in town. She said she was meeting Keneilwe. I asked
her what
were they going to do in town, herself and Keneilwe. She said there’s
someone that deposited money for her in Keneilwe’s
bank
account. I asked who was it and she said its just someone. I asked
her, how do you know that that person has deposited [the
money] in
the bank. She said Keneilwe called her saying she should come now to
town. I said to her, since you know that we are
busy with a funeral,
you must come back and cook; go to my bag, take out the electricity
card and R100-00 and buy electricity.
Ms JANSEN
:
Yes? == She took them and went out of the gate, and before she went
out I asked her why is her phone so busy so early in the morning.

Then she said to me it is Keneilwe calling her.
Ms JANSEN
:
Mrs Moshoeshoe are you fine, can we continue? == Yes, that was the
last time I saw her.”
Rehanna only carried a
lady’s bag with her. With the aid of the police (basically
using a check list) it was established
that she took no change of
clothes or a tooth brush or make up or washing rag or additional
money, apart from the R100-00 to
purchase the electricity coupon.
Mrs Moshoeshoe stated that she had more money in her own bag and
Rehanna did not pilfer any.
This is strongly indicative thereof that
Rehanna expected to be home sooner than later, as she promised.
What is immediately
apparent from the evidence of Rehanna’s mother and Keneilwe,
whose evidence I both accept to this point,
is that Rehanna was
reticent to inform her mother who this secret person was whom she
expected money from or she was meeting
with.
Mrs Moshoeshoe
assisted with the funeral arrangements of her aunt on that fateful
Sunday. That is the funeral she reminded her
daughter of. When Mrs
Moshoeshoe left for the funeral at 13h00 Rehanna had not returned.
Mrs Moshoeshoe returned home at 17h00
but Rehanna was still not
home. She thought Rehanna was still with Keneilwe and went back to
the place of the funeral at 18h00.
When Mrs Moshoeshoe came home at
21h00 the house was in darkness. She became concerned and phoned
Rehanna but her phone was off.
She phoned Keneilwe but her phone was
also off. She waited and later went to sleep. At 04h00 the following
morning when she woke
up Rehanna was still not home. She called
Rehanna’s father and brother to enquire whether she put up
with them. The answer
was in the negative. The search was on. The
family spread out, starting with all Rehanna’s friends and
family.
Rehanna’s
parents obtained the accused’s cellphone number from Cell C as
a received call (a person that phoned Rehanna)
as well as the number
that Rehanna called on Sunday 21 February 2010. On advise Rehanna’s
father phoned the accused’s
number from a public phone. His
evidence will be dealt with separately later on.
Mrs Moshoeshoe called
a family friend, Mr Themba Ngwenya, where Rehanna sometimes puts up
with his daughter with her (Mrs Moshoeshoe’s)
permission. She
gave him the accused’s cellphone number on Monday 22 February
2010. She listened in on part of the conversation
between the
accused and Ngwenya. How this was contrived is explained by Ngwenya
at a later stage.
Both Mrs Moshoeshoe’s
cellphone and Rehanna’s were registered in Mrs Moshoeshoe’s
name because they were contract
phones. She and Rehanna exchanged
phones because Rehanna preferred the phone her mother was using.
After the investigation had
been underway Mrs Moshoeshoe, in
desperation, phoned the accused’s number that she had received
from Cell C earlier. What
popped up is that Rehanna had saved
accused’s number under the name: “Stalker!!” (Note
the two exclamation
marks).
Mrs Moshoeshoe had in
the meantime located Rehanna’s bank card that Rehanna was
unable to locate on Saturday 20 February
2010 and the day
thereafter. No unauthorized withdrawals have been made from
Rehanna’s account nor has Rehanna since operated
on the card.
Mr Moshoeshoe
confirmed Mrs Moshoeshoe’s evidence on aspects of the case
relating to him. He is the one who phoned the cell
number supplied
by Cell C from a public phone. He asked who was talking. The voice
on the other side identified himself as “Frans”.
He
asked this “Frans” whether he had “any knowledge
of a girl by the name of Rehanna. And then that person
on the other
side dropped the phone and when I tried again, the phone was on
voice mail.” The voice mail said something
like: I am Frans
Oliphant, please leave your name and number etc. The matter was then
reported to the police.
On 27 February 2010 Mr
Moshoeshoe received his daughter’s cellphone from a young man
called Itumeleng Booysen who told him
that he had picked it up with
the electricity card in the veld. It was common cause that it was
Rehanna’s phone and that
the electricity card, with a
distinctive number (which need not be reflected here) which Mrs
Moshoeshoe identified in court,
was hers. Booysen explains in due
course where and when he picked up the phone and how he linked it to
the missing Rehanna.
Rehanna’s
parents explained how they were rudely rebuffed by the accused when,
after following all the proper channels,
and as a last-ditch effort
to trace their daughter, they attempted to speak to him in prison.
His rights were fully explained
to him by the prison authorities (a
Mr Malgas) on his right to remain silent and the implications of
what he may disclose. The
accused would not even greet them or shake
their hands. He told them that if they had come to see him about
their daughter’s
case then he should be returned to his cell,
which he was. Despite being rude I will treat this incident as one
in which the
accused was merely exercising his constitutional right
to remain silent, with no adverse inference.
I must bring in the
family friend, Mr Ngwenya, at this point. He is a blind businessman,
very articulate, intelligent and possessed
of a retentive memory. He
testified that Mrs Moshoeshoe supplied him with what turned out to
be the accused’s cell number
on Monday, 22 February 2010. This
was done after Mr Moshoeshoe had already spoken to the accused. That
the accused spoke to both
of them on the phone is common cause. What
was discussed is not always consonant between the two camps.
Ngwenya testified that
he phoned the accused’s cellphone number (082 488 7854). The
“
recipient on the other side answered. I introduced myself
as Ngwenya and requested his name. He then said his name is John. I

said John may I speak to Kwena. [Kwena is Rehanna’s Setwana
name]. He then said Rehanna is not with him at that stage. I

immediately realized that indeed he does know who I am speaking
about, therefore I can continue and find out where she is. He
said
to me that he was busy at work and that he would call me later to
tell me where Rehanna is or was. I then insisted to say
no, no, no
just tell me where, because I need to speak to her quickly, I really
need to. He said his supervisor was “streng”,
he could
not speak to me. But I insisted to say, just tell me where she is. I
need to speak to her and then in haste he said
to me: ‘Thabo
my friend’, and he hung up.”
Ngwenya called
Rehanna’s mother and told her he spoke to John, the person
whose contact number she supplied. She reminded
him that he was
misled because the voice mail speaks of Frans Oliphant. Ngwenya says
he was annoyed with himself because Mrs
Moshoeshoe had given him the
name “
Frans Oliphant”
but it had slipped his
mind. He redialed the number using both his cellphone and his
landline and asked Mrs Moshoeshoe to listen
in to their
conversation. He said to him: “
Hallo, Mr Oliphant --- you
are Mr Oliphant, and he confirmed. I said to him I am looking for
the child, I want to speak to the
child. He said to me this time
round he did not know where the child was.”
Ngwenya said he
changed his approach and asked the accused: “
When last did
you speak to the child, when did you see the child? He said to me he
spoke to the child on the 19
th
, I think it
was on a Friday. And I said to him no, no, it’s not the last
time that you spoke to the child. Mr Oliphant,
no it was not so,
just when did you speak to the child the last time, if anything? I
said, no, no I have records that you did
not speak to her only the
last time on the 19
th
like you are
presenting to me, like you are saying. He then said no, he spoke to
the child the last time, to Rehanna, the last
time on the 19
th
,
or the 20
th
. And I said to him no, no, that
still is not true, that can’t be correct because I mean you
spoke to the child at least,
according to the records, on the 21
st
of Sunday. And he was very evasive, he did not admit to that.”
Ngwenya asked him how
he got to know “the child”. The accused said he met her
in January (2010) in Nobengula Street,
Vergenoeg. Rehanna and a
friend asked for a lift and he dropped them off in Number 5 Section.
He said he was with his friend.
Ngwenya enquired whether the friend
was Thabo that he referred to earlier and accused said yes. The
accused repeated that his
boss was strict and that he would phone
back later. He then hung up. Ngwenya tried several times to call him
but his calls went
unanswered. It is common cause that the accused
never returned Ngwenya’s call. The phone records and the
various experts
who spoke to the records back-up Ngwenya that the
last call he made to the accused was registered on Tuesday 23
February 2010
at 10h33:22.
Mrs Moshoeshoe
confirmed listening in to the conversation between Ngwenya and the
accused. She says she was too stressed and anxious
to focus on the
exchanges or to recall all that was said. She recalls that the
accused acknowledged that he was Oliphant; that
he claimed that his
boss is strict and he could not talk; that Ngwenya tried very hard
to have him disclose the whereabouts of
Rehanna and he said she was
not with him; that he promised to revert to Ngwenya and hung up and
that Ngwenya redialed without
success.
Neither Mrs Moshoeshoe
nor Ngwenya were discredited as witnesses and I accept their
evidence as credible. Ngwenya was relaxed
and Mrs Moshoeshoe
remarkably composed under the circumstances. I detected no rancour
in them. Their evidence was not embellished
or adapted. I therefore
accept their evidence as truthful.
Now about the
discovery of Rehanna’s cellphone and her mother’s
electricity card.
Itumeleng Booysen did
not strike me as a particularly bright young man. At age 22 he was
still in grade 11 (old Standard 9). He
is a deeply religious person
and I am satisfied that he was honest with the Court and gave
credible testimony. I asked Colonel
Perumal, the Provincial Commander
for the Anti Corruption Task Team who headed the Task Team
investigating the disappearance of
Rehanna, the following question:
“
Court
:
In
your interview with Itumeleng Booysen, did he strike you as a
particularly clever person? === My Lord, the first thing that I

considered is whether there was a possibility that he was actually
involved in Rehanna Moshoeshoe’s disappearance because
if I
would refer My Lord to the charts that have been handed in behind me,
My Lord would notice that at one point on the way to
church, he comes
very close to one of the persons who was a suspect in the
investigation at the time, Mr Frans Oliphant –
he actually
comes very close to passing near Mr Frans Oliphant’s house and
that was my first consideration: Is there a possibility
that he might
be involved in the disappearance of the girl and I must say, My Lord,
the interview we had with him, the follow-up
with Gideon Rossouw,
that short space [of time] later, within a matter of 15 minutes,
showing the phone to somebody in church,
let me to believe that there
cannot be a possibility that he could have been involved in the
disappearance of the girl, My Lord.
To be involved and in a few
minutes, show an item that you took from the victim to somebody else
and tell them you found it, My
Lord, that didn’t sit well with
me, and I then drew the conclusion, My Lord, that he could not have
been involved. But he
doesn’t strike me as a very intelligent
person as well, My Lord. He appeared to be of average intelligence,
My Lord.”
Booysen says that on
Sunday 21 February 2010 he was on his way to church; the Moria
Apostolic Church in Zion. He was running late.
The Church service
starts at 11h00. It is not too clear whether he checked his time
although he suggested that he may have. The
church is some distance
away, so he was running. He took a short route, a footpath, that
traverses an expanse of open veld behind
the Provincial Legislature
building. He first picked up Mrs Moshoeshoe’s electricity card
just next to the footpath, clearly
visible, and a short distance
away Rehanna’s cellphone – similarly exposed.
In my view the person
or persons who discarded these articles either wanted them to be
discovered or were surprised by Booysen
or another pedestrian. This
view is strengthened by the evidence of Mr Lionel Khiba, Rehanna’s
uncle. It is convenient
to interpose his evidence at this point. He
testified that Rehanna’s mother, his cousin, asked him to run
some errands
pertaining to their aunt’s funeral. He lost his
way in collecting an equipment elsewhere required for the funeral.
He phoned
Rehanna for directions. It was Sunday 21 February 2010 at
10h37. The phone rang, it was picked up for about 10 seconds and
then
dropped. He says: “
No, no one was talking. I just kept
on saying Rehanna, Rehanna, but there was no response and then it
was dropped. I tried calling
it again, but it just rang after that.”
Mr Khiba did not disconnect but Rehanna’s phone did.
The phone records of
Cell C, testified to by Mrs Sibongile Makhubu, a compliance
administrator, whose evidence was not challenged,
confirms that at
10h37:27 Rehanna’s phone (084 607 3773) received a call,
recorded as “
MTC
”, which stands for Mobile
Terminating Call – this relates to an incoming call, and that
this call was from Mr Khiba’s
cellphone (073 2987 157) and the
duration was indeed 10 seconds and the date was also in fact 21
February 2010 (Exh H, Annexure
A, p6 of 6).
The picture that this
set of facts conjures up is that when Mr Khiba phoned Rehanna she
either deliberately chose not to answer
the phone or she was not in
control of the situation. She was in some danger and her assailant
would not let her answer the phone.
Mr Booysen and/or a pedestrian
surprised them – hence the hurriedly discarded phone and
electricity card. Rehanna’s
assailant also removed her
sim-card. Booysen says he discovered the phone without it. The
motive for removing the sim-card was
plainly sinister and suggests
itself.
Booysen says he looked
around (not he searched around) but saw no one. He went to church
and was a bit late for the service. He
immediately informed his
friend, a fellow worshipper, Mr Thabo Rossouw, whom Colonel Parumal
alluded to earlier (para 104) of
his discovery. A statement to this
effect was obtained from Mr Rossouw. As Booysen scrolled through
Rehanna’s phone (evidently
using a substitute sim-card) he saw
some photos and deleted them. He says he did so because he wanted to
keep the phone for himself.
He thought it was his good fortune to
have picked it up. He fortunately also retained Mrs Moshoeshoe’s
electricity card.
The following day,
Monday 22 February 2010, Booysen showed one of his school mates,
Tsholofelo, the phone. She also scrolled through
it and noticed a
photo of Rehanna that had been stored and was overlooked by Booysen.
She enquired whether Booysen knew her.
He said he did not.
Tsholofelo informed him that the girl had gone missing. (The
probabilities are that it may have been on another
occasion,
Wednesday 24 February 2010, when Tsholofelo alerted him to the
missing girl in the photo).
Booysen says it took
him long (several days) to believe Tsholofelo. In fact it took an
announcement on Radio Teemaneng, a local
radio station, on Saturday
(27/02/2010) to prod a person of his uptake into action (no
disrespect intended). This is when and
how he traced Rehanna’s
father (a school principal) with the aid of some of his friends.
We dwell on the
probable scene of crime. Col De Waal, the Provicial Commander of
Organized Crime, Northern Cape, testified about
plotting out the
routes taken by and points pointed out by Booysen and also mapped
out other points of relevance. He used the
Global Pointing System
(GPS) for this purpose. It is a satellite driven system which plots
or maps out or tracks the path one
walks or follows.
The distance from
Booysen’s home to his church is 3.7km. The electricity card
and Rehanna’s phone were 46 meteres
apart when discovered. The
accused’s and Rehanna’s respective homes were identified
to De Waal by the investigating
team. The measured distance from
accused’s home to the point where the cellphone was located
(as the crow flies) is 608
meters, but following the meandering
footpath works out at 750 meters. Rehanna’s home does not
feature on Col De Waal’s
google map but the distance from her
home to where her cellphone was discovered is a mere 1.2 km. (This
latter distance was omitted
from De Waal’s evidence but it was
common cause during argument that that was in fact his evidence. The
explanation for
the omission can be ascribed to the fact that he
probably gave the distance whilst facing the google map on the wall
behind him).
From the above
dimensions it is clear that the probable scene of crime is within
walking distance from the homes of both the accused
and Rehanna.
Based on the accepted evidence of the complainant Ms D in Counts 1
-7 it is evident that the accused is familiar
with the general area
where Rehanna’s phone and the electricity card were found.
Besides, the area is in the immediate
vicinity of his house.
The evidence of Lerato
Mampe, elaborate, detailed and credible as it may be, shows no more
than:
115.1 The accused has a
predilection for young attractive woman;
115.2 When he has set
his sights on such women he pursues them relentlessly, and bombards
them with phone calls and/or text messages;
115.3 That he gains
their trust, buys them small gifts and promises them “a better
life”, but delivers nothing to that
end;
115.4 That he is a
sexual predator and goes to great lengths to create an opportunity to
have sex;
115.5 That on Sunday,
21 February 2010, when Rehanna went missing the accused was certainly
in the company of Ms Mampe and his friend
Robert Edwards after 13h00;
115.6 That during that
period he did not have a vehicle of his own and used Robert’s
vehicle to transport him and Lerato.
Lerato was taken home around
17h00.
115.7 That Ms Mampe was
unwittingly used as a decoy by the accused to deflect attention away
from the plight of Rehanna Moshoeshoe.
Robert Edwards
describes the accused as his friend and vice versa, although the
accused later suggested that “friend”
did not really
mean a friend. Robert corroborates Keneilwe’s evidence in
broad outline on what took place on 23 January
2010 when he and the
accused met Rehanna for the first time. He confirmed that he was the
owner of the black BMW that Keneilwe
and David Moshoeshoe spoke
about. The latter two testified before Robert. Before Robert
testified the accused had given his counsel
false instructions that
he did not have a friend with a black BMW. As a result it was
canvassed with all the accused’s
relatives, about five of
them, and acquaintances whether the accused did not have such a
friend. Of particular significance is
that David was portrayed as a
liar when he testified that the accused confided in him that his
“friend with a black BMW
left with Rehanna.”
Robert and the accused
have known each other from their teens and became friends from that
time. The accused owned what is termed
a Juice Den, which he sold to
Robert when he (accused) ran into financial trouble. It is also at
that stage that Robert came
to know Ms D. The accused did not trust
Robert in the company of Ms D who, Robert says, dressed
provocatively. The accused complained
to Robert that Ms D has
another lover, Mr CT. He said he had done so much for her but all
that he gets from her is unrequited
love. He threatened to murder Ms
D and commit suicide. Robert mediated but Ms D was in mortal fear of
the accused. She showed
and read to Robert threatening SMS texts
that she received from the accused.
Concerning Rehanna’s
kidnapping, Robert testifies that the accused contacted him
telephonically during the late afternoon
of Saturday 20 February
2010 and told him that he has a date with a girl who remained
anonymous. He enquired whether the house
of Robert’s friend,
one Jean, in Green Street, that Robert looks after is available.
Robert confirmed the availability.
The accused undertook to contact
him the following day (Sunday 21 February 2010).
On Sunday 21 February
2010 Robert was from his home on his way to switch off the lights of
Jean’s house in Green Street.
He decided to call in at the
accused’s home en route because the accused promised to phone
him in any event. It was then
past 09h00. The accused’s wife
informed him that the accused had gone to cut his hair in town. He
left a message with her
that the accused must phone him as his
airtime had expired. The phone records show that the accused phoned
Robert after 09h00,
which is indicative of the fact that the accused
left his home before Robert arrived.
At about 13h00 the
accused phoned Robert and requested him to collect him at 17h00 to
honour his appointment with his aforementioned
date. Robert and the
accused had a change of plans and drove to Green Street in Robert’s
car at 15h00. They watched TV
and at 17h00 collected the aforesaid
Lerato Mampe. No mention was made of Rehanna. The accused’s
hair was uncut.
On Friday, 26 February
2010, the accused’s wife phoned Robert and informed him that
the accused has been arrested. Robert
and the accused’s wife
visited the accused at Witdam Police Station on Sunday 28 February
2010. The accused informed him
that he has been charged with
Rehanna’s kidnapping, not Lerato Mampe’s as he
suspected. The accused told Robert that
the reason for his arrest
was that he was the last one who had “contact” with
Rehanna.
Robert enquired from
the accused where he had been from the time that he (Robert) was at
his home around 09h00 until 13h00 when
the accused phoned him.
Robert assumed that accused phoned him from his (accused’s)
home. The accused informed him that
he was unable to cut his hair at
a place called Last Stop Taxi Rank at Kentucky in town (Kimberley).
Robert asked him whether
no one saw him in town or did he not
withdraw money at an ATM there, in which event he could produce the
ATM receipt (which bears
a date and time) as proof. The accused told
him no one saw him because he walked to town. Robert asked him:
“Frans, you
had money with you, how come you had to walk such
a long distance?” The accused did not answer him.
Robert tried to speak
to the accused before his arrest on Friday 26 February 2010 but his
phone was off. On Sunday 28 February
2010 at Witdam Police Station
he asked the accused why he was unavailable on his phone before his
arrest. The accused informed
him that he dropped his phone and it
shattered. He destroyed the sim-card accidentally by stepping on it.
Robert told him: “You
must have destroyed your sim-card
deliberately because you were aware that the police are on your
tail.” The accused did
not answer him. It must not go
unnoticed that co-incidentally the sim-cards of both Rehanna and the
accused have now disappeared.
Robert testified
further that the accused warned him that the police will be
interviewing him in due course and that he must tell
them
everything. Of course the accused knew that Robert does not have any
implicatory evidence against him. The accused also
asked Robert
personally and through a released prisoner to arrange legal
representation for him. Robert says he declined on the
basis that he
appeared to be “a semi-suspect” in that mention was made
of his black BMW having been involved in Rehanna’s

transportation. Robert co-operated fully with the police and
satisfied them that before, during and after Sunday 21 February
2010
Jean was in Cape Town with his BMW and was even caught speeding and
produced the speeding summons.
I am satisfied that
Robert Edwards was a frank and credible witness. He is a
no-holds-barred witness whose evidence came out warts
and all. He
confronted the accused when he thought he was dishonest. For example
with the sim-card destruction story and the
incredulity that he
could have gone to town, far off, on foot; that although he claimed
that he went to cut his hair he had done
nothing of that sort.
In my view if Robert
was complicit in Rehanna’s kidnapping he would have pulled his
punches to avoid antagonizing himself
against the accused. I accept
his evidence and reject the accused’s where same is at
variance. I point out that the police
had nothing adverse or
incriminatory to say about Robert. In Court the accused never
pointed an accusing finger at Robert. I
nevertheless treated
Robert’s evidence with caution where he was a single witness
and because the accused seems to have
implicated Robert in his
statement to David Moshoeshoe. In
S v Hlapezula
1965(4)
SA 439(A) at 440 D-E Holmes JA warned:
“
It is well
settled that the testimony of an accoplace requires particular
scrutiny because of the cumulative effect of the following
factors.
First, he is a self-confessed criminal. Second, various
considerations may lead him falsely to implicate the accused,
for
example, a desire to shield a culprit or, particularly where he has
not been sentenced, the hope of clemency. Third, by reason
of his
inside knowledge, he has a deceptive facility for convincing
description – his only fiction being the substitution
of the
accused for the culprit. Accordingly, even where sec. 257 of the Code
has been satisfied, there has grown up a cautionary
rule of practice
requiring (a) recognition by the trial Court of the foregoing
dangers, and (b) the safeguard of some factor reducing
the risk of a
wrong conviction, such as corroboration implicating the accused in
the commission of the offence, or the absence
of gainsaying evidence
from him, or his mendacity as a witness, or the implication by the
accomplice of someone near and dear to
him; see in particular R v
Ncanana 1948(4) SA 399 (AD) at pp. 405-6; R v Gumede, 1949(3) SA 749
(AD) at p 758; R v Nqamtweni and
Another 1959(1) SA 894 (AD) at pp.
897G – 898D.”
I now deal with
the evidence of David Moshoeshoe, Rehanna’s uncle.
He
and Rehanna’s father are brothers. David and the accused know
each other because they stayed in the same neighbourhood.
They
clearly did not know each other’s full names. The accused knew
him as Schwepps, his popular name, and he knew the
accused as Frans.
At one stage in their lives David was the accused’s customer
when the latter owned a Juice Den and the
roles were reversed when
David owned a Vodacom Container dispensing public phone facilities.
David testified that
during February 2010, shortly after the disappearance of Rehanna, he
stood behind the accused in a queue
to register their names to use
the public phones located in the courtyard of the Kimberley prison
precinct. Both of them were
awaiting trial prisoners. Prison warder
Colin Matthews supervised the registration. Matthews asked the
accused why he kidnapped
Rehanna. The accused’s response was
that Rehanna left with his (accused’s) friend in a black car.
Matthews then said
he learned that Rehanna’s remains were
discovered in a black plastic bag, to which the accused responded by
denying that
her remains were found. Matthews asked how the accused
knew because he had been incarcerated. The accused said he just
knew.
After Matthews’
departure the accused approached David and told him that he looks
familiar. David reminded him where the
familiarity emanates from.
They discussed frankly what each one of them was in for. David asked
the accused what linked him to
the kidnapping of Rehanna. The
accused alluded to the phone calls he made to Rehanna. The accused
asked David to devise a plan
which could exculpate him in court. The
accused suggested getting rid of the dockets. David decided to lead
him on in order to
glean information from him that could unravel
Rehanna’s case.
David created a legend
around two of his prisoner friends who he said had connections in
high places who could assist in defeating
the ends of justice along
the lines suggested by the accused. He told the accused that he
needed to produce money upfront to
pay for the favours. The accused
then wrote exhibit D which solved the theft of Vera-Ann’s
laptop. See paras 57 –
66 (above). To show that the accused
was determined to have the dockets (including the one relating to Ms
D) destroyed the evidence
of Kedibone Boikanyo, the administration
officer at the Kimberley Magistrate Court, is highly significant.
Her evidence lends
veracity to the evidence of David on this aspect.
The accused also
mentioned to David that his friends Robert (Edwards) and Shaun would
raise the required amount and that his wife,
whom he said worked at
the “soup Kitchen”, would contribute R1000-00.
As David was probing
further, the accused somewhat opened up and told him that the police
are aware that on a previous occasion
he and his friend gave Rehanna
a lift and dropped her off at Section Number 5, Galeshewe. He
repeated to David that on the day
of Rehanna’s disappearance
his unnamed friend left with Rehanna in a black BMW (only on this
occasion he specified the
make of the car). All this information was
transmitted onward to the police.
David also explained
that the accused informed him that on the morning of Rehanna’s
disappearance he told his wife that
he was going for a haircut in
town, but found the salon closed. David asked him whether he did not
know that the salon does not
open on a Sunday. The accused intimated
that that Sunday was the exception as he usually has his hair cut in
Galeshewe (where
he is resident). The accused informed David that
the hair-cut story was a bother regard being had to his alibi as
there was a
one-and-a-half lapse that he could not account for when
the police questioned him. He needed David to assist him to plug
that
gap.
David, to keep the
façade alive, promised to contact his friend who, in reality,
owns a phone shop to backdate a receipt
to the day on which Rehanna
went missing to take care of the lacuna. The transaction would
pretend to show that his phone had
been repaired or he bought a
phone. The accused only had to furnish him with on obsolete phone
number and advance money for the
favour. The plan was put on hold
because the accused failed to provide the money for the bribe.
David testified that
during the accused’s bail application in June 2010 it emerged
that he (David) was related to Rehanna.
The accused, in evidence,
made a feeble attempt to persuade the Court that he knew David and
his family tie to Rehanna well before
Rehanna’s disappearance
and would not have entrusted him with such implicatory evidence. Mr
Van Tonder, his counsel, fairly
sums his client’s case up by
conceding that the letter, Exhibit D, that accused gave to David
when he thought David would
be acquitted in the robbery case, was
deadly against the accused.
I refrain from dealing
in detail with two further discussions David had with the accused.
The one relates to the analogy drawn
between the accused’s
case and an episode in a soapie called “Scandal” where
the main protagonist, David Nyathi,
is accused of his wife’s
murder and the second discussion relates to a scene in TV on a
programme called “Medical
Detectives”. The first reason
for this approach is that the accused’s utterances are of
dubious relevance; secondly,
the discussion was too vague and
general and thirdly; the body of the victim was never found in the
“Medical Detectives”
episode but the perpetrator was
nevertheless convicted of the murder. The evidence is too tenuous to
be held against the accused.
In any event, the accused has not been
charged with murder. See
R v Nhleko
1960(4) SA 712 (A)
at 721 E -722B where
Schreiner JA
held as follows:
“
It has been
held by this Court that the fact that no body or part of a body had
been found is not an insuperable bar to finding
a person guilty of
murder. Such were the circumstances in
R
v Sikosana
which
is unfortunately only reported briefly in 1950(2) PH H 148 [Footnote:
see full report at 1960(4) SA 723]. In that case the
appellant was
charged with the murder of his wife and there was a large body of
evidence relating to their relations and the circumstances

immediately prior to her disappearance. It is clearly wrong to hold
that in such cases the Crown must prove the corpus delicti,
the fact
of an unlawful killing, according to a higher standard of certainty
than that required to identify an accused as the killer,
and this is
made clear in the judgment of Van den Heever JA in Sikosana’s
case. But the absence of a body may be a very good
reason for holding
that the Crown has not proved its case beyond reasonable doubt, for
it lets in the possibility that the person
in question may still be
alive. We were referred to articles in
68 LQR 391
, and
73 SALJ 181
where similar cases are collected and discussed.
But whatever may be
the position in such cases, we were informed by counsel for the
appellant that no reported case has been traced,
and I have found
none, in which, not merely has no body or part thereof been found,
but no person has been shown to have been missing.
This clearly
introduces another wide range of possible sources or error. Where the
evidence of supposed eye-witnesses to the murder
is alone available
it must indeed very rarely be the case that the tiers of fact can
properly be convinced beyond reasonable doubt
of the accused’s
guilt. Take the one factor of motive. It is true that a crime, even
murder, may be proved without the motive
being established. But it is
always very important to consider whether the accused had or may well
have had a particular motive
for killing the deceased. And if nothing
is known about the person who is said to have been killed the tiers
of fact are without
an important field of information. They cannot
say whether there was any association between the accused and the
deceased which
made the killing of the latter by the former likely or
not unlikely, or whether some other person would be antecedently a
more
probable perpetrator.
From various angles
it would be most exceptional for proof of a murder beyond reasonable
doubt to be reached where no body or part
of one is found and no
person is shown to have disappeared.”
This to my mind,
informed the state’s approach.
Of relevance though is
that the accused informed David with reference to Rehanna’s
case that he has done a “clean
job” and that the police
have nothing against him. What the clean job is is unclear. What is
clear is that he claimed to
have done a “job” on
Rehanna. The furthest that this statement can be taken is that the
accused knew and had something
to do about the disappearance of
Rehanna. This knowledge and conduct by him is consistent with what
Ngwenya testified to and
what the phone records reveal.
As pointed out earlier
the accused’s counsel conceded that David Moshoeshoe was a
very good witness. I agree. I choose to
deal with only one aspect of
the evidence of the only defence witness, apart from the accused’s,
Mr Collin Matthews. The
police evidently only made contact with
Matthews when they were alerted by David to the conversation
Matthews had with the accused
relating to the disappearance of
Rehanna. Matthews’ statement was only obtained on 28 April
2010 whereas the conversation
took place on 19 March 2010. The
statement is a criptic one-paragrapher. Matthews testified that he
informed the accused that
he learned that “the child’s
body” was discovered in a plastic bag and that the accused
responded that he knew
nothing about it.
Matthews was
parochial. He said he and David “
het gesels”
(they discussed). However, what stands in the statement is hardly a
discussion (geselskap). Matthews states that the prisoners
usually
approach the telephone booth in the sequence (volgorde) in which
they have been registered. However, he disputes the
fact that
“
volgorde”
constitutes a “
queue”
,
a word used by David. Matthews says he called the accused aside but
cannot dispute that David stood a pace or so close-by and
that there
was nothing that could have prevented David from eavesdropping.
David was certain that he did not conflate the conversation
that he
heard Matthews had with the accused and his follow-up inquisition in
the absence of Matthews. What is paramount is that
what took place
is not a thumb suck by David. Indeed Mr Van Tonder was constrained
to concede that if David wanted to inculpate
the accused seriously
he could have done so, but never did so throughout his evidence.
I caution myself that
David was a single witness, had an interest in the outcome of the
case and was presented with a fertile
motive to subvert the truth
due to his close family tie to Rehanna. I have already dealt with
the circumstances which reduce
the risk of a wrong conviction, like
the laptop question (ExhD), the docket issue which was backed up by
Ms Boikanyo and even
(though peripherally) Mr Matthews’
evidence. See
R v Mokoena
1956(3) SA 81 (A) at pp 85 -
86.
On the probabilities
on the discussion that the accused had with Mr Matthews I therefore
prefer the evidence of David, in conjunction
with how David followed
up the issue. The worth or relevance of this evidence is that
whereas the accused exculpates himself
from being complicit in
Rehanna’s disappearance he does betray knowledge that he saw
her on Sunday 21 February 2010.
The telephonic
contact between the accused and Rehanna.
I now reflect the full
catalogue of the telephone contact and text messages between the
accused and Rehanna from 23 January 2010
(the first contact) and 21
February 2010 (the day of Rehanna’s disappearance):
140.1 On 23 January
2010 between 18h10:06 and 20h46:54 the accused made seven calls to
Rehanna. Rehanna made only one call to him
at 20h27 (a call-back or
please call me) to him in that period.
140.2 On 24 January
2010 at 15h01 the accused called Rehanna and at 17h45 on the same day
he sent her an SMS. Rehanna made no call
to the accused.
140.3 On 27 January
2010 between 07h12:52 and 19h55 the accused called Rehanna three
times and sent her an SMS at 22h55. No call
from Rehanna to the
accused was made.
140.4 On 29 January
2010 the accused called Rehanna twice. She did not call him.
140.5 On 31 January
2010 the accused called Rehanna seven times and sent her three text
messages. No communication went the other
way from Rehanna.
140.6 On 02 February
2010 at 07h06 the accused sent Rehanna an SMS, to which she did not
respond.
140.7 On 03 February
2010 at 16h58 the accused called Rehanna. She made no call to him on
that day. A lull followed until the storm
broke on 19 February 2010.
140.8 On Friday, 19
February 2010 the accused phoned Rehanna four times between 06h23 and
23h14:29. He also sent her six text messages,
the last of which was
recorded at 23h17. Rehanna’s responses were made at 06h30 when
she phoned him and 17h42 when she sent
him an SMS.
140.9 On Saturday, 20
February 2010, the eve of Rehanna’s disappearance, the accused
phoned Rehanna on three occasions. The
telephone billing system
reflects that on this Saturday the accused was the only person who
phoned Rehanna. The calls were made
between 22h10 (this first call
lasted over 8 minutes) and 23h02 (this last phone call lasted 71
seconds). For the first time ever
the pattern of SMSes reflect that
there was in fact a sustained text message dialogue between the
accused and Rehanna. In other
words Rehanna was responsive or
receptive to what accused conveyed to her:
(a) Accused: SMS at
22h21 and 22h23: Rehanna SMS at 22h24.
(b) Accused: SMS at
22h26: Rehanna SMS at 22h28;
(c) Accused: SMS at
22h31 (at 22h51 he phones Rehanna, the second of the three phone
calls – and speaks to her for 59 seconds).
(d) Accused: SMSed at
22h51:42; 22h51:50 and 22h56. There is no response from Rehanna. The
communication for the evening is concluded
by the accused phoning
Rehanna at 23h02, as pointed out already.
140.10 The fateful day,
Sunday 21 February 2010, commences at 07h47:56 when the accused
phoned Rehanna and spoke to her for 74 seconds.
At 09h19 he phones
her again and speaks to her for 13 seconds. At 09h52 Rehanna phones
the accused and speaks to him for 27 seconds.
140.11 In summary: From
23 January 2010 to 21 February 2010 Rehanna phoned the accused on
only three occasions and dispatched only
four text messages to him.
Otherwise it was the accused snowing her under phone calls and SMSes.
What must be brought
into reckoning at this pivotal stage is that Rehanna’s uncle,
Lionel Khiba, phones her at 10h37:27
on Sunday 21 February 2010 for
directions to a particular destination. The phone is picked up for
10 seconds but no one answers.
Coincidentally the accused’s
wife also phoned him at 10h37:39 and 10h38:58 but her phone calls
also went unanswered. The
accused’s explanation that he did
not pick up his wife’s calls because he was at a noisy area at
the time is fiction.
He must have been highly occupied by preventing
Rehanna from answering her uncle’s call. Itumeleng Booysen’s
presence
at that crucial juncture exacerbated the situation for the
accused.
It should further be
borne in mind that none of the calls made by or received by the
accused or Rehanna were registered to any
power station or reception
station (also referred to by the cellphone experts as “
base
stations”
) in Kimberley town, where Rehanna said she was
heading to purchase clothes or draw money and where the accused
claimed he had
gone in a vain attempt to cut his hair. More
pertinently, the evidence show that they were in and around
Galeshewe and West End
which are in close proximity to where Booysen
picked up Rehanna’s cellphone and her mother’s
electricity card.
This evidence also
destroys the accused alibi. This is moreso the case if regard is had
to the fact that the accused told Robert
that he walked to town. At
07h47, 09h19, 09h52, 10h37 and 10h38 (the latter when his wife
phoned him) he was certainly not in
town. This is what the base
stations demonstrate. Even on the accused’s own admission at
10h37 when Rehanna was accosted,
he was not in town but at a mini
market in John Daka street in Galeshewe.
According to Colonel
Parumal and Colonel Luis, the investigating officer, none of the
CCTV footage that was painstakingly traversed
showed that the
accused or Rehanna was in town or the shops mentioned by Keneilwe
Motaung where Rehanna would be making the purchases
from. The shop
assistants were also interviewed with the same result. The police,
in great numbers, “got down to brass
tacks” in their
quest and search for clues. Nothing positive turned up. Sniffer
canines were employed and the accused’s
clothing that he was
wearing on that fateful Sunday proved negative. The clothes had
already been laundered. The sewerage manholses
located in the
vicinity of the probable scene of crime were inspected and turned up
no positive clues. The evidence does not
excluse the possibility
that they may have swallowed Rehanna.
The accused’s
defence in respect of Rehanna’s kidnapping
.
The accused say he
phoned Rehanna on Saturday 20 February 2010. He explains
(translated):
“
In between
our conversation there were interruptions. There were calls that she
(Rehanna) received, messages that she received.
She would first
respond to them. I would be required to drop the call and call back
later. This happened over different times (verskillende
tye).”
The accused continues:
“Rehanna asked me whether I liked festivals. She wanted to
know whether we could attend on [27/02/2010].
I said it would depend
on Robert [Edwards]. He does not like festivals. If Robert was
interested then we will attend.”
The accused says he
phoned Rehanna on Sunday 21 February 2010 because they had a
wonderful conversation the previous evening but
were disrupted by
the Mxit chat she had with someone else. “I joked with her and
said you and your Mxit.” He asked
Rehanna whether she did not
go to church and Rehanna reminded him that she attends church on
Saturdays. The inescapable conclustion
is that Rehanna communicated
contemporaneously with the accused and Keneilwe. This appears to be
common cause.
The accused says he
had already at 09h58 boarded a taxi to town when Rehanna phoned him.
“She sounded uncomfortable (ongemaklik)
to make her request.
She asked me to buy her airtime.” He told her he had no money.
“
The reasons why I say she sounded uncomfortable is because
she used the Afrikaans word ‘tog’ (please).”
The accused contradicts himself here because he told Robert that he
walked to town. It is difficult to fathom why Rehanna could
have
been desperate for airtime when her father gave her a monthly
allowance of R500-00 and her mother explained that Rehanna’s

phone was on contract. Rehanna also left some money untouched in her
mother’s handbag when she left that Sunday morning,
plainly to
meet the accused. She would nevertheless not phone him for airtime
when they were due to meet in a short while.
The accused’s
alibi is not only incomprehensive but also muddled. At the bail
hearing, the proceedings of which forms part
of the record, the
following exchanges emanate from the accused’s
cross-examination by the state:
“
PP:
Riana made a call to you round about 09:52.. I believe that you are
now in town and she already left her place of residence. What
was the
conversation all about? == I do not remember the details.
PP:
But
you admit that she called you? == Yes, I received a call from her.
PP:
And I believe that you are already in town now? == I do not know
where I was.
PP:
Because you left - when did you leave your place of residence, what
time? == It must be to 08:00, past 08:00.
PP:
So
you will agree with me that when this call from Riana came, you were
already in town? == When what call came?
09:52 sir? ==
Riana’s call?
PP:
Yes, when she called you, you were already in town? == No I was on my
way back home by that time.
PP:
You
were not in town? == I was on my way back home.
PP:
Where were you? == I went back home with a taxi, so I must be in the
taxi. Because I arrived at past 10:00 to 11:00 at home.”
During the course of
this trial the accused said he left his home for a haircut in town
just before 10h00 or around 10h00. If
that is the case Robert would
have found him at home. Robert testified acceptably that he popped
in at accused’s home around
09h00 and found only his wife.
Robert left a message with her that the accused should call him as
his (Robert’s) airtime
had expired. This explains why the
accused phoned Robert at 09h48 (according to the phone records).
During this trial
accused had a difficultly to explain where he was when Rehanna
phoned him at 09h52 – four minutes after
he had allegedly
phoned Robert from a taxi ostensibly bound for town. He therefore
had to retain himself in the taxi because
he could not have been on
his way back from town in four minutes after seeking to cut his
hair. The accused was also aware that
none of his calls were made or
received in town according to the cellphone experts who testified
before him. The accused therefore
materially contradicted his
evidence at the bail proceedings. This is also in conflict with what
he told Robert: that he walked
to town. I am therefore not surprised
that the accused approached David Moshoeshoe and requested him to
assist him to devise
a fraudulent alibi.
Asked by state counsel
to reconcile the contradictions and inconsistencies at the bail
proceedings and now at trial stage the
accused said he was “not
himself” and he “was depressed.” He implied that
his evidence at the bail proceedings
be therefore ignored. In doing
so the Court would be allowing and countenancing the accused to
perjure himself. A court is not
at liberty to discard or ignore
admissible evidence. See
S v Nomzaza
1996(2) SACR 14
(SCA). In
S v Dlamini
;
S v Dladla
;
S
v Joubert
;
S v Schietekat
1999(2) SACR 51 (CC)
at 98c-f the Constitutional Court, per
Kriegler J
, held:
“
There is no
warrant for creating a general rule which would exclude cogent
evidence against which no just objection can be levelled.
The trial
court must decide whether it is a valid objection, based on all the
peculiar circumstances of the particular case, not
according to a
blanket rule that would throw out good and fair evidence together
with the bad.”
I fully comprehend Mr
Van Tonder’s sensible approach in argument that the accused’s
alibi cannot stand. It now boils
down to what offences the state has
proved against the accused. The consequences of a failed alibi have
been comprehensively
stated in
S v Thebus and Another
2003(2) SACR 319 (CC) at 349C – 354B. In
S v Nkomo
1966(1) SA 831 (AD) at 833C-D the Court held:
“
By falsely
denying all connection with the burglary, accused No. 2 not only
failed to give any explanation exculpating himself from
complicity in
the murder but, if anything, tended to confirm the above indicated
inference against him. In this regard I am in
entire accord with the
observations of MALAN JA, in
Rex
v Mlambo
,
1957(4) SA 727 (AD) at p. 738, namely:
‘
If an accused
deliberately takes the risk of giving false evidence in the hope of
being convicted of a less serious crime or even,
perchance, escaping
conviction altogether and his evidence is declared to be false and
irreconcilable with the proved facts a court
will, in suitable cases,
be fully justified in rejecting an argument that, notwithstanding
that the accused did not avail himself
of the opportunity to mitigate
the gravity of the offence, he should nevertheless receive the same
benefit as if he had done so.”
In
S v Shabalala
1986(4) SA 734 (A) at 736 C-D the Court held that the “effect
of the falseness of an alibi on an accused’s case is
to place
him in a position as if he had never testified at all. See also
R
v Dhlomo
1961(1) PH H54.”
In summary this
is what happened to Rehanna
.
During the evening of
Saturday 20 February 2010 the accused convinced Rehanna that he
would buy her clothes in Kimberley the following
day and was
prepared to disburse R800-00 for this purpose. Rehanna would wear
the clothes to the Lira concert.
Rehanna confided this
offer by the accused in her best friend Keneilwe Motaung. Keneilwe
cautioned against going out with the
accused unchaperoned and
dissuaded her instead to defer the shopping to the following weekend
when she (Keneilwe) would accompany
them.
The Persuasive guile
of a sex predator clicked into gear. The gullible, trusting Rehanna,
who was overtaken by the folly of youthful
excitement, was unable to
discern the bait to the trap laid by the accused. On Sunday 21
February 2010 at 07h47:56 the accused
calls Rehanna. Evidently
pursuant to the previous evening’s promise to do the shopping.
At 08h00 Rehanna’s mother
noticed Rehanna having a bath.
Rehanna was clearly receptive to what the accused told her a mere 13
minutes before and was preparing
herself.
At 09h19 the accused
phones Rehanna again to ascertain progress and her whereabouts. This
is roughly the time that Rehanna’s
mother sees her leave. At
09h52, in other words 33 minutes later, Rehanna phones the accused.
At 09h19 the accused’s reception
station (base station) from
which he makes the call, is recorded as Kimberley West 3 (it is in
Galeshewe). At 09h52 when Rehanna
phoned the accused the call is
transmitted from the same base station (Kimberley West 3).
Incidentally when the accused’s
wife phoned the accused at
10h38 from the common home she shares with the accused in Galeshewe
the call was transmitted from
the same base station (Kimberley West
3). This is merely to illustrate that none of these calls were made
from town.
What is stated
hereinbefore demonstrates that between 09h19 and 09h52 the accused
and Rehanna were in fairly close proximity to
each other. At 10h37
and 10h38 the phone calls by both Mr Khiba and the accused’s
wife, made respectively to Rehanna and
the accused, (twice at 10h37
and once at 10h38), went unanswered. In respect of Rehanna this
happened 45 minutes after she had
phoned the accused.
After Rehanna’s
call at 09h52 there is no phone record that the accused ever phoned
Rehanna or communicated with her. The
converse is also true. At the
bail proceedings the accused ascribes his abrupt loss of interest in
Rehanna variously to the fact
that he did not know her personally or
she was not his girlfriend or lover. In this Court he was basically
indifferent. He says
the reason was that there was no relationship
of any kind between them or there was no need for him to phone her,
even in the
face of the whole broader Kimberley community running
helter-skelter to locate her, fearing the worst.
It is unthinkable and
improbable that Rehanna could have gone to meet someone else in the
veld that she did not even communicate
with. The phone records show
that on the Sunday of her disappearance she only communicated
(orally) with the accused by phone
and no one else. In my view the
accused lured her surreptitiously to the open stretch of veld to
have sexual intercourse with
her. She must have repelled his
unwelcome advances. The situation must have gone out of hand, much
to Rehanna’s peril.
This reconstruction is
not far-fetched conjecture because her attacker, the accused,
prevented Rehanna from speaking to her uncle
Khiba. They must have
been at the place where Rehanna’s phone was found by Booysen.
The accused twice did not pick up his
wife’s calls which
followed closely on Khiba’s call. The accused removed
Rehanna’s sim-card from her phone.
He therefore decided to
make her disappear fearing that she will press charges against him.
As David Moshoeshoe says: He made
a clean job of it. When Rehanna’s
phone was examined by the police it was discovered that he had
deleted Rehanna’s
name from it and all the calls he made to
her and she to him. He did not try to contact Rehanna because
according to Mr Ngwenya
he betrayed knowledge on Monday 22 February
2010 that he knew where Rehanna was. He knew that she was unable to
communicate because
of what he did to her.
The conclusion to
which I come is consonant with the authorities referred to by the
Supreme Court of Appeal in
S v Reddy and Others
1996(2)
SACR 1 (SCA) at 8c -9f:
“
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 ---. 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.'
Best on Evidence
10th ed 297 at 261 puts the matter thus:
'The elements, or
links, which compose a chain of presumptive proof, are certain moral
and physical coincidences, which individually
indicate the principal
fact; and the probative force of the whole depends on the number,
weight, independence, and consistency
of those elementary
circumstances.
A number of
circumstances, each individually very slight, may so tally with and
confirm each other as to leave no room for doubt
of the fact which
they tend to establish. . . . Not to speak of greater numbers, even
two articles of circumstantial evidence,
though each taken by itself
weigh but as a feather, join them together, you will find them
pressing on a delinquent with the weight
of a mill-stone. . . .
Lord Coleridge, in
R
v Dickman
(Newcastle Summer Assizes, 1910 - referred to in
Wills on Circumstantial Evidence 7th ed at 46 and 452-60), made the
following
observations concerning the proper approach to
circumstantial evidence:
The law does not
demand that you should act upon certainties alone. . . . In our
lives, in our acts, in our thoughts we do not deal
with certainties;
we ought to act upon just and reasonable convictions founded upon
just and reasonable grounds. . . . The law
asks for no more and the
law demands no less.'”
The correct approach
which a court should adopt in evaluating evidence, not merely
circumstantial evidence, has been lucidly stated
as follows in
S
v Chabalala
2003(1) SACR 134 (SCA) at 139i – 140b
(para 15):
“
[15]
The trial court's approach to the case was, however, holistic and in
this it was undoubtedly right:
S
v Van 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.
”
Rehanna appropriately
dubbed the accused a “
stalker!!”.
Ms D
graphically depicted the accused as a stalker. Ms Mampe completed
the picture. Very poignant are the words of Sting, the
frontman of a
music band called “The Police” who wrote a song about an
obsessive stalker. The lyrics in the first
two stanzas read:
“
1. Every
breath you take. Every move you make. Every bond you break. Every
step you take. I'll be watching you.
2. Every single day.
Every word you say. Every game you play. Every night you stay. I'll
be watching you. O, can't you see. You
belong to me. How my poor
heart aches with every step you take.”
The accused, under
false pretences, made Rehanna take her last known steps to her
disappearance.
I reject the accused’s
versions (he had several versions) of events on the kidnapping
charge. I am satisfied that the state
has proved its case beyond a
reasonable doubt that the accused abducted Rehanna Kwena Moshoeshoe
on Sunday, 21 February 2010,
after rendering her malleable over a
period of time.
I am not called upon
to decide what ultimately happened to the hapless girl. A note of
caution must be sounded, though, that a
crime of murder does not
prescribe. The time will come, maybe in the distant future, if
Rehanna does not resurface alive, in
order for the family to get
closure, that an application will be made to presume her to have
died. At that stage the accused
may then be indicted for murder by
the prosecution authority. See generally
Bothma v Els &
Others
2010(1) SACR 184 (CC).
VERDICT: Count 9:
Kidnapping
–
The accused is found guilty as charged.
I recapitulate
my orders:
COUNT 1: Assault
with the intention to do grievous bodily harm:
THE ACCUSED IS FOUND
GUILTY OF COMMON ASSAULT.
COUNT 2: Rape
:
THE ACCUSED IS FOUND
NOT GUILTY AND IS ACQUITTED.
COUNT 3: Rape
:
THE ACCUSED IS FOUND
GUILTY AS CHARGED.
COUNT 4: Rape
:
THE ACCUSED IS FOUND
NOT GUILTY AND ACQUITTED.
COUNT 5
:
Assault with the intent to do grievous bodily harm:
ACCUSED IS FOUND
GUILTY AS CHARGED.
COUNT 6: Arson:
THE ACCUSED IS FOUND
GUILTY AS CHARGED.
COUNT 7:
Attempted Murder:
THE ACCUSED IS FOUND
GUILTY AS CHARGED
COUNT 8: Theft of
a laptop computer:
THE ACCUSED IS FOUND
GUILTY AS CHARGED.
COUNT 9: The
kidnapping of Rehanna Moshoeshoe a 15 year old student of Girls High
School, Kimberley:
THE ACCUSED IS FOUND
GUILTY AS CHARGED.
COUNT 10:
Assault with the Intent to do grievous bodily harm:
THE ACCUSED IS FOUND
GUILTY OF ATTEMPTED ASSAULT TO DO GRIEVIOUS BODILY HARM.
_____________________
F
DIALE KGOMO
JUDGE
PRESIDENT
Northern
Cape High Court, Kimberley
On behalf of the
State
:
Adv C G Jansen
Instructed by: Director
of Public Prosecutions
On behalf of the
Accused
:
Mr A Van Tonder
Instructed by: Legal
Aid Board