About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2011
>>
[2011] ZANCHC 33
|
|
S v Litsili (K/S 6/11) [2011] ZANCHC 33 (17 November 2011)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTHERN CAPE
HIGH COURT, KIMBERLEY)
Case No: K/S
6/11
Delivered:
17/11/2011
In the matter
between
THE STATE
v
MOLUSI DANIEL
LITSILI
JUDGMENT
PAKATI AJ
1.
The
accused, Mr Molusi Daniel Litsili also known as Danny Boy, appears
before me on three charges. In count 1 he faces a charge
of murder.
In count 2 he is charged with rape in contravention of section 3 read
with sections 1 and 56 of the Criminal Law (Sexual
Offences and
Related Matters) Amendment Act, 32 of 2007 (“the Act”),
alternatively sexual acts with a corpse in contravention
of section
14 read with section 1 of the Act. In count 3 he is charged with
theft. The incidents are alleged to have taken place
during the early
hours of 12 June 2010 in Saul City, in the district of Kimberley.
The accused, a male person aged 40 years, is
alleged to have killed
and raped his mother, the deceased, Caroline Madira-Mokotla Letsili.
It is further alleged that he stole
the deceased’s cell phone
and an amount of R150-00 before fleeing to Johannesburg.
2. The accused was
represented by Mr J Cloete on the instructions of the Legal Aid
Board. He pleaded not guilty to all the counts.
In his plea
explanation he denied all the charges. The following admissions were
recorded in terms of section 220 of the Criminal
Procedure Act, 51 of
1977 (“the CPA”) (Annexure A):
“
1 I admit
that the deceased was my mother.
I
admit that I stayed with the deceased in the house where her body
was found.
The identity of
the deceased is admitted as Caroline Madira-Mokotla Litsili and that
she was 61 years old.
I admit that the
body of the deceased was found by Matlhogonolo Edward on 18 June
2010 at approximately 10h00.
I admit that the
deceased did not sustain any injuries from the time she was
discovered by [Ms] Edward until the post mortem.
The
contents of the post mortem report are admitted.
I accept the
photo plan with key thereto as compiled by [Constable] Matlawe as
correct and is attached as exhibit “C”.
I admit that the
blood of the deceased was found on the shoes with laces. These shoes
are visible on photos 26 and 27 of exhibit
“C”.
I admit that the
blood of the deceased was found on one of the jeans that can be seen
on photos 26 and 27 of exhibit “C”.
I admit that the
deceased was found in the condition and under the circumstances as
can be seen on photos 4 to 8 of exhibit “C”.
I
admit that the deceased had a cell phone.
I
admit that the cell phone number of the deceased was 0825828474.
I admit that the
cell phone handset of the deceased had a unique IMEI number
353521007080417.”
3. According to Ms
Boitumelo Litsili, sister to the accused, she stayed in Bloemfontein,
and still is, when the incident took place.
The accused stayed with
the deceased. She last saw the deceased alive in January 2010 and
last spoke to her telephonically around
07 June 2010.
4. The deceased used
to visit Ms Litsili in Bloemfontein. On such occasions she would
inform her in advance. She would then pick
her up from Bloemfontein
railway station. On 06 June 2010, the opening of the World Cup games,
the deceased sent her a short message
service (“sms”)
saying, “
I am afraid.”
Ms Litsili testified that
she did not have enough airtime but she phoned the deceased the
following day enquiring about the contents
of her sms. The deceased
told her that she should not worry herself about it but did not
mention why she was afraid. After this
call the deceased told her
that she wanted to come to Bloemfontein but did not have money. Ms
Litsili also did not have same.
5. Ms Litsili
established that a phone call was made from the deceased’s cell
phone on 12 June 2010. She stated that she
did not speak to the
accused from the day the deceased’s body was discovered till
his arrest on 28 October 2010. The accused
did not attend the
deceased’s funeral which took place in mid June 2010.
6. Ms Lillian
Moleboheng Mopu, a friend to the deceased, testified that on 11 June
2010 she was seated at home with the deceased
and others playing
cards. The deceased drank two glasses of beer and left her premises
before 23h00. Prior to the World Cup Games
there were nights which
the deceased spent at her place. There were no prior sleeping
arrangements between them and the deceased
did not explain why. She
noticed that something scared the deceased at her place. The Tuesday
or Wednesday prior to 11 June 2010
she accompanied the deceased to
her place to fetch some money because the deceased wanted to buy
cigarettes from her. At deceased’s
home they found the accused.
The deceased asked the accused where her money was. The accused
answered arrogantly: “
You know where the money is, don’t
ask me where the money is.”
The deceased took the money and
they left.
7. Ms Marope Maria
Kale, also a friend of the deceased, was present at Ms Mopu’s
place when cards were played with the deceased
and others. She left
Ms Mopu’s premises around 22h00 to her house in the company of
the deceased because the deceased wanted
cigarettes from her. The
deceased lived in the next street. After she had given her cigarettes
she watched the deceased until she
waived to her indicating that she
was fine as she entered her home. That was the last time she saw her
alive.
8. Mr Ishmael
Moipolai, also known as Oupatjie, testified that the accused is a
relative from his father’s side. On 11 June
2010, the opening
of the World Cup Games, he was at his home at Klub 2000. At 15h30 the
accused joined him and they watched the
football game together. They
consumed liquor. When the game was over around 17h00-18h00 the
accused told him that he was hungry
and wanted to go home. Seeing
that the accused was moderately drunk he walked him to his parental
home. The accused’s mother
was not home at that stage. The
accused was wearing blue jeans and yellowish brown shoes (exhibit 2
and 3).
9. At the time of
the incident the deceased was working at the Home Based Care Centre,
an initiative by the Department of Health,
as a nurse. Ms
Matlhogonolo Edwards testified that she worked with the deceased. On
11 June 2010, the Friday, the deceased was
on duty but on 14 and 15
June, the Monday and Tuesday, the deceased did not report for duty
and no report was received from her.
On 17 June 2010, after the
public holiday of 16 June 2010, she again failed to report for duty.
On 18 June 2010 Ms Edwards phoned
her. The voice message from her
cell phone reported that the number did not exist. Because this was
strange she proceeded to the
deceased’s home to investigate.
She and the deceased were expected to compile a report regarding
their work that day. On
her arrival she noticed that both burglar
gates on the doors were locked. She knocked on the front door and a
bedroom window but
there was no response. She noticed the house keys
lying outside the house.
10. Ms Edwards
requested a neighbour, whose name she could not recall, to assist her
to open the door. The neighbour refused. Ms
Edwards then opened the
house using the key. She started by opening the burglar gate and the
door slowly. She noticed deceased’s
thigh facing upwards as
seen on photo 4, 5 and 6. She retreated. She borrowed a cell phone
from the neighbour and summoned the
police. She stated that no one
else was inside the house with the deceased. She did not get inside
the house with the police when
they inspected the scene. No one
entered the house from the time that she unlocked the door until the
police arrived.
11. Mr Isaac
Matlawe, a constable employed by the South African Police Services
and attached to the Criminal Record Centre (“LCRC”),
visited the scene where deceased’s body was found. He called Mr
Gerhardus Esterhuysen, the investigating officer, to assist
him. W/O
Esterhuysen showed some points to constable Matlawe who took photos.
W/O Esterhuysen collected some exhibits on the scene.
They noticed
that the blood on the scene was already dry. W/O Andre Mc Anda, who
is based at the LCRC in Kimberley and trained
in forensics to
retrieve DNA, also assisted constable Matlawe on the scene. Other
photos were taken during post mortem examination
on 21 June 2010.
12. W/O Mc Anda took
possession of the spade (exhibit 1) that he found on the deceased’s
chest and a bucket and a knife (exhibit
4) that he found on the
kitchen table. He also took possession of an empty condom wrapper on
the kitchen floor but no used condom
was found. The knife appeared to
have blood marks on it but when tested forensically the reaction was
found to be weak.
13. In the small
bedroom W/O Mc Anda found yellowish brown shoes (left shoe exhibit 2
and right shoe exhibit 3). Another pair of
white Levi tekkies, a pair
of blue Levi jeans as well as a pair of blue and red buttoned jeans,
visible on photos 28 to 32, were
dispatched for biological
investigation in Cape Town. The blood visible in the kitchen and the
main bedroom was in crusted form.
The officer took some of the
exhibits for fingerprints to be uplifted at Kimberley laboratory. The
DNA results of the yellowish
brown shoes and the jeans belonging to
the accused matched the DNA of the deceased (exhibit “D”).
Apart from the deceased’s
blood on her long pants her blood was
also found on the jeans and the shoes belonging to the accused.
14. W/O Esterhuysen
testified that the inside rooms were in a mass. Cupboards and
pedestals were left opened. The bed in the main
bedroom was not made
up and there was a lot of dry blood on the floor. He noticed what
looked like a shoe print on the floor. In
the bucket found on the
scene there were fingerprints which could not be identified. No
foreign DNA was found on the samples of
the deceased sent for
forensics. He also discovered that the cell phone belonging to the
deceased was missing. He applied for a
section 205 subpoena (exhibit
“F”) in terms of the CPA for Vodacom to assist in the
investigation. The result was that
on 12 June 2010 at 09h52 a call
was made from Kimberley using the deceased’s cell phone
handset. On the same day another
call was made at 11h55 (two hours
later) from Bloemfontein from the same hand set. The number phoned
was 079 277 9549 which belonged
to Mr Godwin Malefane, a friend to
the accused. No further calls were made from the deceased’s
cell phone since then.
15. Mr Louis Cronje,
a warrant officer in the Dog Unit Kimberley, testified that the shoe
print visible in photo 16 which he lifted
is similar to the shoes
which were retrieved from the crime scene (exhibit 2 and 3). The
implication clearly is that the person
who stepped on wet blood or
wet surface, wore exhibits 2 and 3. It was common cause that the
shoes belonged to the accused.
16. A search for the
accused started from 18 June 2010. An application for the section 205
subpoena was made to South African Social
Security Agency (SASSA)
where the accused received a social grant in order to obtain his
identity number. In an effort to trace
the accused they made use of a
television programme called ‘Duty Calls’ and news papers.
During September 2010 W/O
Esterhuysen went to Randburg after
receiving information that the accused was arrested in Randburg on a
charge of loitering but
was unable to locate him. The accused was
arrested on 28 October 2010 with the aid of undercover police.
17. Mr Bongani
Ronald Msuthwana is a member of the SAPS stationed in Galeshewe as a
detective in the Dog Unit. His duties entail
tracing the most wanted
suspects and arrest them. On 28 October 2010 he was in Randburg on
under cover duty tracing the accused.
He located him in the Church of
England in Randburg. He went outside with him. He noticed that one of
his cheeks was swollen. When
he asked whether he needed medical
attention he said he was not feeling pain. He explained accused’s
rights to him, arrested
him and took him to Randburg Police Station
as a suspect in transit. The following day he transported him to
Kimberley.
18. Mr Rudolf
Louwrens, a Captain in the Galeshewe Cluster and Head of the Serious
Crimes Unit who also works with the Hawks, was
on duty on 29 October
2010. The accused was introduced to him by W/O Esterhuysen. Captain
Louwrens in turn introduced himself to
the accused. He informed the
accused of the allegations against him. He noticed that his left
cheek was swollen. After explaining
to him his constitutional rights
he asked if he was prepared to make a warning statement regarding the
allegations. The accused
told him that he would write everything down
the following morning because he suffered from a toothache. The
accused was taken
to hospital the same night. W/O Esterhuysen took
him to hospital again the following morning, a Saturday.
19. On 31 October
2010 the accused was prepared to make a warning statement which was
taken down by Captain Louwrens. Ms Jansen
for the State submitted
that the statement taken down by Captain Louwrens complied with the
provisions of section 217 of the CPA
and that was not in issue as Mr
Cloete for the accused confirmed this.
20. Dr Sonata
Wolraven, who performed the autopsy on the deceased, recorded the
chief post mortem findings as follows:
“
1
.
The
body of an adult female with extensive head injuries:
Multiple
incision-lacerations (blunt/sharp trauma) to the head and face;
Incision wounds
to the face and hand (sharp trauma);
Multiple
underlying skull fractures;
Bilateral
mandible and maxilla fractures.
2. Congealed
blood in the airways.
3. Naked lower
body.”
21.
According
to Dr Wolraven the spade fitted in well as the assault weapon regard
being had to the injuries (incision-laceration) sustained
by the
deceased. The doctor recorded in para 1 of exhibit “B1”
attached to exhibit “B” (the post mortem
report) as
follows:
“
A large
number of injuries were recorded. Of these, multiple
incision-lacerations, mostly over the head, were noted which suggest
blunt/sharp force trauma consistent with injuries sustained from a
blow with the edge of a spade. Whether this edge was the end
edge of
the spade or the side edges is debatable and certainly the injuries
could have been sustained from both the end edge and
the side edges
of the spade. Furthermore, a number of contusions and abrasions were
sustained over the body – these are consistent
with blunt force
trauma and may well have been sustained from blows to the body with
the flat side of the spade.”
22. Dr Wolraven also
found multiple bruises of the upper and lower arms. She interpreted
these wounds as defence wounds when the
deceased parried the blows.
The base of the skull was fractured and the lacerated brain tissue
could be seen through the wound.
According to her the fracture of the
base of the skull is usually caused when one side of the head is
supported while there is
a blow to the other side. This kind of
fracture is not possible if the victim receives the blow while
standing as the head must
collide with a hard object on the other
side. Dr Wolraven also found that the deceased sustained fractures of
ribs 3 (anterior)
and 5 (lateral) on the left. There were also post
mortem (after death) antero-lateral rib fractures of ribs 3 to 10 on
the right.
She stated that the deceased sustained these fractures
after the heart had stopped beating. She also observed that the brain
was
decomposed because there was green staining. She intimated that
the green staining was consistent with the lapse of about 6 days,
when the deceased was discovered. She concluded that the cause of
death was severe head injuries.
23. The accused
testified in his defence that on 11 June 2010, the day of the opening
of the World Cup Games he watched the games
with Moipolai at
Moipolai’s house. They consumed liquor in the process. When the
game was over he walked home in the company
of Moipolai. His mother
was not at home. He went to the shop to buy food because he was
hungry. He ate the food at home and went
to the neighbour’s
house where he and the neighbour sat by the fire and drank liquor. He
was later called by his mother.
He then went home. His mother gave
him a sum of R20-00 and went to Ms Lillian’s place. He then
slept.
24. The following
morning, the 12
th
of June 2010, his mother woke him up and
wished him a happy birthday. She gave him R150-00 to spend on
himself. He took some of
his savings, and the R150-00 that his mother
gave him and his ID and went to buy himself a cell phone. When he
left home he took
his mother’s cell phone. On his way he met a
gentleman who accused him:
“You and Jomo took my cell phone
when I slept and passed out.”
He told the man that Jomo was
the one who searched him. The man called his friend and they drew
knives on the accused. Because
he was frightened he fled to his
friend, Malefane, in Bloemfontein. He denies killing and raping his
mother. He also denies stealing
the deceased’s cell phone and
money. He maintained that before he left for Bloemfontein there was
no quarrel between him
and his mother. He said he left home to look
for work.
25. That the
deceased was murdered is common cause. The crisp issue to be
determined is the identity of the perpetrator. The accused
pleads an
alibi and maintains that he was not present when his mother was
murdered. He testified that he has been falsely implicated
as the
murderer and rapist. He acknowledges that on 11 June 2010 he was
wearing the blue and red buttoned jeans (exhibit “F”)
and
the yellowish brown shoes (exhibit “2 & 3”). He
states that he was moderately drunk. This was confirmed by
Moipolai.
The accused also admitted that he was at home with his mother on the
same evening (11 June 2010). He stated that nothing
sinister happened
between him and his mother that evening.
26. If the accused
went to Bloemfontein because he was scared of the attempted assault
on him by the unnamed attackers he was at
least expected to inform
his sister and his mother about his whereabouts and why he fled. That
he never phoned or visited his sister
in Bloemfontein even though he
knew she lives there is strange. When asked to explain this he first
said that he was heavily intoxicated.
When it was put to him that he
could not have been intoxicated for three days on end he said: “
First
of all I left Kimberley and I was not supposed to leave because I was
still under correctional supervision and I did not want
anybody to
know my whereabouts.”
This, in my view, clearly shows that
he was running away from Kimberley because of what he knew happened
at home. He remained on
the run until he was hunted down.
28. After taking the
deceased’s cell phone the accused made the last call on 12 June
2010. He explained that the reason why
he did not make further calls
was that the phone got lost. It does not make sense that the accused
took the deceased’s cell
phone along when he went to town to
buy his own cell phone. He later explained that he kept the cell
phone because he was expecting
a call from someone.
29. Malefane
informed the accused that people were looking for him because his
mother passed on. When he was asked during cross
examination whether
he phoned his sister about what happened to his mother he said he did
not comprehend what Malefane was saying
to him over the phone. Even
though the accused knew that his mother had died he called none of
his relatives. He said he did not
have anybody’s contact
numbers. Strange enough, he testified that whilst in Randburg he
phoned Malefane on 15 October 2010.
30. The accused
could not explain how deceased’s blood landed on his shoes and
the blue jeans he wore on 11 June 2010. He
also could not explain his
shoe print similar on the blood-soaked or liquid-smeared bedroom
floor. He said that when he left his
shoes they were clean. This
implies that someone wore his shoes and his blue jeans, killed his
mother, raped her and walked around
the house. He stated that it was
possible that the perpetrator spilt blood on his clothing and shoes
to set him up.
The accused’s explanation is not only false
but it is also laughable.
31. The accused
first testified that when his statement was taken he was not
intoxicated and made it freely and voluntarily. He
later claimed to
have been intimidated and threatened to make the statement because
Captain Louwrens tightened the handcuffs to
pinch him and assaulted
him on his private parts.
32. What is
surprising about this version is that a medical note (J88) completed
by the doctor who examined the accused only noted
1cm laceration on
the left wrist and the laceration was 48 hours old. This finding was
consistent with the fact that the accused
was handcuffed from
Randburg on the 28 October 2010 until 29 October 2010 when he was
examined. The fact that he was assaulted
in his private parts was
never put to Captain Louwrens when he testified.
33. The accused
testified that when he made admissions to Captain Louwrens he
repeated things that the Captain dictated to him.
He testified that
he was shown the photo album in Randburg already and when he came to
Kimberley W/O Esterhuysen and Captain Louwrens
also showed it to him.
According to him that is how he knew that his mother was hit with a
spade and was left lying on the kitchen
floor. He therefore had to
give a statement that would fit what he saw in the photos. When asked
why he mentioned in his statement
matters that were not relevant to
the charge; for example, mentioning the fact that he was given
R500-00 by Dr Deon Thuys, he said:
“...I talked about this
money because it is the cause of this incident.”
He stated
in his statement that he fought with his mother. However, he later
denied that he fought with his mother but said he
mentioned this
because he was lying and was just giving a statement.
34. W/O Esterhuysen
testified that Captain Louwrens had no prior knowledge of the matter
before he took down the statement. Captain
Louwrens corroborated this
evidence. What is unexplained about this is that if W/O Esterhuysen
and Captain Louwrens showed the
photos to the accused prior to the
statement being taken from him why was this not put to the witnesses
when they testified? The
accused explained that the reason why his
counsel was not instructed on this issue is because when the police
testified they never
mentioned the photos.
35. The deceased
sustained some vaginal injuries. In respect of rape Dr Wolraven made
the following note regarding the vaginal fluid
seen in photo 8 of
exhibit “C” and other vaginal wounds and expatiated in
paras 1-4 of exhibit “B2”as follows:
“
1. To the
best of my knowledge, the following possibilities exist for what the
white fluid seen draining from the vaginal introitus
could be:
Women of post
menopausal age, as the deceased was, stop producing cyclical fluids
as women of premenstrual age do. They [often]
suffer from vaginal
dryness. This suggests that it is highly unlikely that the fluid was
a secretion from the deceased’s
body. However, it must be
considered that it may have been a lubrication type of gel applied by
the deceased, as treatment for
vaginal dryness.
While I am
informed that DNA testing was negative, the following reasons for
negative DNA on seminal fluid must be considered:
Time lapse from
deposit to sampling – the longer seminal fluid is exposed to
environment, the smaller the chances of a positive
test become.
None production
of sperm by the accused (azoospermia)
Use of condom –
“messed” remaining fluid does not contain viable sperm
Use of
spermacide
Ejaculation
outside the vagina...
All three wounds
described showed no vital reaction which means that they were
sustained after the deceased’s heart had stopped
beating.
These injuries
are INSIDE the vagina – on the posterior vaginal wall and would
have had to be caused [by] penetration. A blow
from the spade or a
fall could at the very most have caused external bruises but NOT the
internal injuries found at post mortem.
A penis violently
penetrating into the vagina (after the deceased had died) could cause
these lacerations.”
The doctor confirmed
the correctness of her post mortem notes.
36
.
No one
witnessed the incidents. The evidence is therefore circumstantial in
nature. In
S v REDDY AND OTHERS
1996 (2) SACR 1
(A)
at 8c-g
Zulman AJA held:
“
In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece-meal basis and to subject
each
individual piece of evidence to a consideration of whether it
excludes the reasonable possibility that the explanation given
by an
accused is true. The evidence needs to be considered in its totality.
It is only then that one can apply the oft-quoted dictum
in
R
v BLOM
1939 AD 188
at 202-3, where reference is made to
two cardinal rules of logic which cannot be ignored. These are,
firstly, that the inference
sought to be drawn must be consistent
with all the proved facts and, secondly, the proved facts should be
such ‘that they
exclude every reasonable inference from them
save the one sought to be drawn.’ The matter is well put in the
following remarks
of Davis AJA in
R v DE VILLIERS
1944 AD
493
at 508-9:
‘
The court
must not take each circumstance separately and give the accused the
benefit of any reasonable doubt as to the inference
to be drawn from
each one so taken. It must carefully weigh the cumulative effect of
all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be drawn. To put the matter in another way; the
Crown must satisfy the Court,
not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond reasonable
doubt inconsistent with such
innocence.’”
37. I am satisfied
that the perpetrator who killed and had sexual intercourse with the
deceased is the accused. This explains how
the deceased’s blood
came onto his blue jeans and shoes. The accused was unable to give an
acceptable explanation of the
presence of blood on the aforesaid
items.
38. As far as the
charge of theft is concerned I am persuaded that the accused had no
lawful reason to take the deceased’s
cell phone. She could not
consent to its removal because she was dead. In fact the removal of
the phone and the violence are so
closely connected that a verdict of
robbery would still have been competent if he faced such a charge
from the beginning.
39. The principle to
determine what form of intent to murder an accused should be
convicted of has been authoritatively formulated
in the following
terms by Holmes JA in
S v SIGWAHLA
1967 (4) SA 566
(A)
at
569 G-H – 570 A:
“
The
next question is whether the State proved beyond reasonable doubt
that the appellant intended to kill the deceased. At this
stage I use
the word intention in the sense of dolus directus, i.e. where the
will is directed to compassing the death of the deceased.
It is
sometimes said that a person is presumed to intend the reasonable and
probable consequences of his act. As to that, I had
occasion to point
out in
R
v. Sacco,
1958
(2) SA 349
(N)
at pp. 351H to 353C, that it is simpler to speak of inferences of
fact than of presumptions; that the practical approach is to
eschew
piecemeal processes of reasoning, and to look at all the facts at the
end of the case, and from that totality to ascertain
whether the
inference in question can be drawn; and that inferences do not affect
the incidence of the onus of proof - they assist
its discharge.
Stabbing
cases are usually a matter of degree, and intention must not be
inferred by hindsight from the fact of death. The part
of the body
injured is relevant, but in the present case the deceased was walking
and the appellant jumped forward as he struck.
Hence it cannot be
inferred beyond reasonable doubt that he actually aimed at the heart,
as distinct from the general area of the
upper body. Accordingly, the
fact that the thrust did land with fatal consequences above the heart
does not, in all the circumstances,
necessarily give rise to the
inevitable inference that the appellant intended to kill, in the
sense of directing his will toward
the bringing about of the death of
the deceased
."
40. Notably large
amount of force was used in hitting the deceased with the spade. The
severity of the head injuries sustained by
the deceased was to the
extent that the deceased could not have survived because of blood
found in the airspaces. It is not possible
that the accused left the
deceased alive as he wants the court to believe. What is clear is
that the accused continued to assault
the deceased after her heart
had stopped beating. This is evident from the medical evidence that
there were post-mortem (after
death) antero-lateral rib fractures of
ribs R3 to R10. The sexual act was also committed post mortem. The
deceased was an elderly
woman of 61 years and defenceless. The
accused wanted this court to believe that she was armed with the
spade when he disarmed
her of it. The assault on her was vicious and
gruesome resulting in the injuries already described which led to her
death. The
evidence of Dr Wolraven is clear that the deceased was
already dead at the stage when the accused had sexual intercourse
with his
mother. The accused’s conduct complies with the
definition of having sexual intercourse with a corpse.
41. The manner in
which the deceased met her demise with specific reference to the
injuries found during the post-mortem examination
and her cause of
death, satisfy me that the only reasonable inference that can be
drawn is that the accused assaulted the deceased
with the direct
intention to kill her.
42. I am satisfied
that the state proved its case beyond a reasonable doubt. I find that
the accused’s version is a fabrication
and I reject it as
false.
The following
verdicts are returned:
On count 1
(Murder): The accused is found guilty of the murder of Caroline
Madira-Mokotla Litsili with
dolus directus
as a form of
intent to cause her death.
On count 2
(contravention of section 14 read with section 1 of the Criminal
Law( Sexual Offences and Related Matters) Amendment
Act 32 of 2007:
The accused is found guilty of sexual act with a human corpse.
On Count 3
(Theft): The accused is found guilty of theft of the cell phone and
R150-00 belonging to the deceased.
________________________
B M PAKATI
ACTING JUDGE
On
behalf of the State
Adv
C Jansen
Instructed
by
Director
of Public Prosecutions
On
behalf of the Accused
Adv
J Cloete
Instructed
by
Kimberley
Justice Centre