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[2024] ZANCHC 70
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S v Mongale (K/S4/2023) [2024] ZANCHC 70 (2 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No: K/S4/2023
Heard on:24 –
28/07/2023;
28 – 01/09/2023
& 22/01/2024
Delivered on:
02/05/2024
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
THE
STATE
and
WILLIAM
MONGALE
ACCUSED
JUDGMENT
MAMOSEBO
J
[1]
The accused stands indicted on two counts: Count 1: Assault with
intent to cause grievous
bodily harm; Count 2: Murder read with the
provisions of s 51(2) of the Criminal Law Amendment Act 105 of 1997
(CLAA).
[2]
He pleaded not guilty to both counts and filed a signed written plea
explanation in
terms of s 115 of the Criminal Procedure Act, 51 of
1977 (CPA) marked exh “A”. He confirms that
although he pleads
not guilty to murder read with s 51(2) of the
CLAA, his legal representative has explained the court’s
sentencing jurisdiction
of life imprisonment irrespective of the
prescribed minimum sentences as well as what the competent verdicts
entail. His
plea explanation pertaining to the assault charge
is that Neo MacDonald Molatedi, the complainant, pushed him with a
750ml beer
bottle. He produced a nail clipper and opened the
built- in nail file with his teeth and used it to stab him on his
shoulder
in self-defence. He denies stabbing him with a knife
or having had the intention to cause him grievous bodily harm.
[3]
In as far as the plea explanation pertaining to the charge of murder
is concerned
he denied stabbing the deceased, Tshepang Ernest Lukang.
The accused made the following admissions in terms of s
115(1)(b)
deemed to be formal admissions made in terms of s 220 of
the CPA:
3.1
That the body of the deceased was correctly identified as that of
Tshepang Ernest Lukang;
3.2
That the body did not sustain any further injuries from the time the
deceased was declared
dead until the medico post-mortem examination
was conducted by Dr Tebogo Charles Kanaomang on 25 October 2022;
3.3
The content of the report on the post-mortem examination compiled by
Dr Tebogo Charles Kanaomang
is acknowledged as correct; and
3.4
That the cause of death was blood aspiration.
The s 170A of the CPA
application for evidence of minor witnesses to be obtained through an
intermediary
[4]
At commencement of the trial, because the State intended to call two
minor witnesses,
it made an application in terms of s 170A of the
CPA. Ms Wilma Roux, with 26 years’ experience as a social
worker,
of which, 6 years was in her capacity as a probation officer,
was called to testify. Her evidence that the two minors,
Oarabile
M and Tumisang C M testify through an intermediary was
supported by her written reports marked exhibits “E”, “F”
and “G”. She recommended that the two witnesses
testify through a Setswana speaking intermediary and
in camera
.
It cannot be gainsaid that child witnesses should be exposed to as
little stress and mental anguish as possible. I
was satisfied
at the end of her evidence and after cross-examination that the minor
children might be exposed to undue mental stress
and suffering unless
the recommendation is endorsed and ordered that their testimony be
heard through an intermediary, Ms Angela
Kedisaletsi Louw.
[5]
It is opportune at this stage to highlight the practical challenges
this Court experienced
through the dysfunctional intermediary
equipment in Court. It is prudent that the Court Manager and/or
the Registrar ensure
that the CCTV cameras are functional at all
times to avoid the inevitable consequence of having to postpone cases
involving minor
accused and/or witnesses whose testimony must be
obtained through an intermediary. This case was unfortunately
no exception.
As pointed out by Ngcobo J, then, in
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development, and Others
2009 (2) SACR 130
(CC) at
para 2:
“
[2]
…Our constitutional democracy seeks to transform our legal
system. Its foundational
values of human dignity, the achievement of
equality and the advancement of human rights and freedoms, introduce
a new ethos that
should permeate our legal system. Consistent with
these values, s 28(2) of the Constitution requires that in all
matters concerning
a child, the child's best interests must be of
paramount importance.”
[6]
Further challenges which were highlighted in this matter
necessitating attention and
cooperation by the criminal justice
cluster is the availability of juvenile witnesses to probation
officers to enable them to complete
and make reports available to all
the relevant stakeholders timeously. I have noted with concern that
the accused’s legal
representative was handed a copy of the
probation officer’s report literally at the doorstep of the
trial proceedings. All
parties need to exercise more care in the
interests of the administration of justice.
The version of the
State
[7]
The State’s case is predicated on the following evidence. The
incidents
occurred on 22 October 2022 at Laundry’s Tavern in
Warrenton. Dr Tebogo Charles Kanaomang holds an MBChB degree as
well as a Bachelor of Surgery obtained in 2009 at the University of
Pretoria. He served the Department of Health in various
capacities. More important, he served as a Medical Officer:
Forensic Pathology from 2014 to April 2023 and is currently
self-employed. The experienced doctor, whose credentials are
undisputed, conducted the post-mortem on the body of the deceased,
Tshepang Earnest Lukang, identified to him by Forensic Pathology
Officer A Nkadimeng on 25 October 2022. The deceased’s
reputed age is 24 years.
[8]
The doctor noted a 1cm incision on the left upper chest wall, just
underlying the
medial 3
rd
of the clavicle (collar bone).
The wound has sharp edges. There were no other associated
external injuries. In
as far as the thoracic cage and diaphragm
are concerned, the doctor recorded that there was no rib or clavicle
fractures present.
The sternum and diaphragm are intact. There
is a stab wound through the 1
st
intercostal space (between
the 1
st
and 2
nd
ribs) into the chest cavity.
Intercostal space refers to the muscle between the ribs. There
is 800ml of blood in the
left chest cavity. There is blood
inside the oesophagus, trachea and bronchi.
[9]
The doctor recorded the chief post-mortem findings on the body as:
“
A
body of a Black adult male with a single stab wound on the left upper
chest wall, as depicted above and on the provided sketch.
The
sharp blade penetrated the left chest cavity through the 1
st
intercostal space and went through the upper lobe of the left lung,
extending into the pulmonary blood vessel within the lung.
There
is blood in the left chest cavity. Both lungs are congested and
there is a leopard skin pattern appearance in
the lung parenchyma,
which is consistent with blood aspiration. There is blood in
the trachea, bronchi, and oesophagus. The
stomach is full of
blood. There is minor subendocardial bleeding on the posterior
wall of the left ventricle of the heart
(suggestive of significant
blood loss).
”
As a result of his
observations, he concluded that the cause of death is blood
aspiration.
[10]
Dr Kanaomang further explained that blood aspiration is when a person
swallows the blood which
goes into the parenchyma (lung tissue)
coming through the trachea (windpipe) into the lungs. According
to the doctor blood
in the left chest cavity of the deceased caused
him to collapse and he was breathing blood in and out after falling.
The
nature of the wound is V-shaped on the one side while the
other side is more U-shaped. That means that apart from the
wound
being caused by a sharp object the make of that object was not
double but single-edged. The deceased’s bleeding was
mainly internal despite blood droplets on the ground. Excessive
blood seen on his face came from his mouth as he was trying
to
breathe. The doctor estimated the depth of the wound to have
been between 5 – 10cm. There were neither sharp
nor blunt
injuries observed on the deceased’s head. The doctor
refuted the allegation that the wound could have been
caused by a
nail file from a nail clipper.
[11]
Neo Macdonald Molatedi (Neo) knows the accused because they grew up
together and attended the
same primary school. The evening of
the incident, around 21:00, he found the accused at Laundry’s
Tavern and shared
his liquor. The accused also gave him three
cigarettes. The accused was busy arguing with the deceased,
whom he referred
to as “Green”. He could not hear
what the argument was about because the music was loud.
[12]
Neo observed that the deceased was holding a 200ml bottle of Old Buck
Gin and a closed okapi
knife pressed against the bottle during the
argument. Since the tavern was filled to capacity with patrons,
they occupied
the veranda outside the tavern. There was
sufficient lighting outside the tavern. The accused produced a
knife from
his pocket and opened it with his teeth. Neo
intervened. For his trouble the accused stabbed him with his
knife.
[13]
Neo left the scene and entered the tavern where he made a report to
Theko, one of the employees
at the tavern whose surname is unknown to
him, and showed him his injury. Theko went outside while Neo
remained inside the
tavern. He did not witness the deceased
being stabbed. Later it was reported to him that Green had died
and the police
arrived at the tavern. It was put to Neo that
the accused took out a nail clipper and unclipped the built-in nail
file with
his teeth which he used to stab Neo in self-defence because
Neo had pushed the accused using a 750ml beer bottle. Neo
denied
pushing the accused with a beer bottle and disputed that the
object that the accused had was a nail clipper. He did not
receive
any medical treatment and the wound has healed. He
pointed to a less than 1 cm scar for the record.
[14]
Tumisang C M is a 16-year old minor who testified through an
intermediary and
in camera.
His guardian was present
throughout his testimony. Oarabile M is his friend. They,
together with Serapelo and Monnapule,
were standing opposite the
garage and across the street, at Laundry’s Tavern on 22 October
2022. It was around 19:00
at night. The deceased appeared
and entered the tavern and as he came out the accused, referred to as
“Mawila”
was standing outside. He cannot explain
what happened and did not notice them talking but only saw Mawila
stabbing the deceased
in the area of the throat. The accused
first put his arm around the deceased as if he was hugging him and
the other hand
was lifted in a stabbing position. He stabbed
the deceased with an okapi knife while they were both still next to
the garage
inside the tavern premises. He indicated photo 3
point 4 as depicted on Exh “B”. He explained that an
okapi is
a folding knife. He saw the accused folding the knife
after the stabbing.
[15]
The deceased exited the tavern premises and entered the passage.
Tumisang followed the
deceased into the passage and asked him
if he was okay but was met with no response. He continued to
walk next to him until
he collapsed. Tumisang returned to the
tavern and sought help from the patrons. He left with the other
patrons to where
the deceased had collapsed. He observed blood
oozing from the deceased’s mouth. He left the scene
thereafter.
Tumisang identified the accused in court (dock
identification).
[16]
Oarabile M is a 15-year old Grade 4 learner who also testified
through an intermediary and
in camera
. His guardian was
present throughout his testimony. He attends school at
Warrenton Public Primary School. He
knows that he celebrates
his birthday on the 16
th
of June but does not remember the
year when he was born. I admonished him to tell the truth. He
confirmed having been
at Laundry’s Tavern on Friday
21
October 2022, the evening
before the fatal incident. He and his
friends, Monnapule, Tumisang and Serapelo were standing at a fence
when they encountered
the accused. The accused informed them
that he was going to kill someone the following day.
[17]
On Saturday 22 October 2022, Oarabile and his friends returned to the
tavern and stood as depicted
at point 3 of photo 3 of Exh “B”
in front of the tavern, when they saw the deceased entering the
tavern. At that
stage the accused stood talking under the
veranda with Tiny and Peke. The deceased bought beer inside the
tavern and returned
to the veranda where he stood at point 4 at photo
3 of Exh B. The accused was in possession of cigarettes and
packets of
Clorets gum. Oarabile moved to a point just behind
the boundary wall to purchase Clorets gum from the accused who was
standing
there in the company of the deceased, Peke and Tiny.
[18]
According to Oarabile, the deceased lit a cigarette and the accused
requested a puff (colloquially
referred to as a “
skyf”
when somebody requests to share the same cigarette). The
deceased said he will do so but did not. The accused picked
up
an empty 750 ml beer bottle and hit the deceased on the forehead but
the bottle did not break. The deceased wanted to
know the
reason for the assault from the accused. His response was that
the deceased was trying to disrespect and undermine
him. The
accused then grabbed the deceased by his neck as if he was hugging
him. He used his other hand to produce
a silver knife which he
unclasped with his teeth. He then stabbed the deceased with
that knife on the collar of his neck.
Green, the deceased,
thereafter exited the tavern premises through the entrance and
immediately turned left into a passage.
Peke Shomoleile, who at
the time was wearing flip flops (push-ins) which were not of the same
brand on his feet, followed
the deceased who was wearing new Adidas
tekkies. Tumisang also followed Peke and the deceased. The
deceased collapsed
in the passage. Peke took the deceased’s
tekkies and put them on and left his flip flops at the scene. Peke
returned
to the tavern. Oarabile went with all the other
bystanders to where the deceased had fallen and noticed a bottle of
Old Buck
Gin, a wallet and two unidentical flip flops. After
the deceased was stabbed, the accused and Tiny left the tavern
together.
The deceased’s brother arrived armed with an
axe. Oarabile left the scene. Earlier, before the
deceased was stabbed,
Oarabile saw Neo trying to intervene between
the accused and the deceased.
[19]
Tiny Mpiti is a 23-year old female and a friend of the accused since
2015. She was at Laundry’s
Tavern on 22 October 2022. As
she was exiting the tavern she saw the accused holding Green, the
deceased, by his T-shirt
with the same hand that had a box of Clorets
gum underneath his armpit. With his free hand he produced a
knife that he unfolded
with his teeth. She did not approach the
two but sat on top of Peke’s lap. She took the accused’s
beer
and entered the tavern. She did not witness the stabbing.
However, there were rumours inside the tavern that the accused
had killed a person but she ignored them. After it was
announced that the tavern was closing, the accused gave her money
to
buy another beer. He walked her to her boyfriend Xolani
Shomoleile’s place.
[20]
At Xolani’s one-roomed residence, the accused informed Xolani,
within her hearing distance,
that he had hit the deceased with a
bottle on his forehead and also stabbed him but that he does not know
where on his body he
had stabbed the deceased. She then slept
leaving the accused chatting to Xolani, who was already lying on the
bed. The
information divulged by the accused was prompted by
her telling him that people were talking at the tavern that he had
killed a
person. She saw the knife that the accused had from a
distance as the accused was unclasping it. She had also seen it
earlier during the day in town, at Tony’s tavern, when he used
it to open a wine bottle. The entire knife was silver
or
shiny. She refutes the claim that the accused used a nail
clipper and maintains that it was a small knife.
[21]
Xolani Lennox Shomoleile was asleep in his room on 22 October 2022
around 23:00 when his girlfriend
(Tiny), and William (the accused),
arrived. They were talking about what had happened at the
tavern. Tiny informed
the accused that there were rumours that
he had killed a person. The accused’s response was that
the deceased (Green)
had asked for tobacco from him and he hit the
deceased with an empty bottle on his head. He explained that he
held the deceased’s
hand with his one hand while he took out a
knife with the other and stabbed the complainant “Kaka”,
also known as Neo,
on his shoulder. Kaka was intervening
between the accused and the deceased. The accused said he
stabbed the deceased
on his “
krok”
referring to
his throat where it meets with the collar bone. The accused
left and he went to sleep.
[22]
Gabriel Theko Medupe is 52 years old. He was unemployed but,
over weekends, including the
night of 22 October 2022, he worked as a
casual worker at Laundry’s Tavern. His tasks included
removing empty crates
in the tavern and ensuring that there was
order. He was inside the tavern and at some point, he took the
empty crates outside
the tavern and stood next to the boundary wall
in front of the toilets within the tavern premises. He saw the
accused standing
with his back against the boundary wall, holding
another person with his right hand while unclasping a knife with his
teeth. He
saw the shiny blade part of the knife held by the
accused. They stood facing each other. He did not know
the person’s
name but later learnt that it was Green. He
ran towards them to intervene. He stood between them and
separated them
by pushing them apart. The deceased had a bottle
of Old Buck Gin and a closed knife in his one hand. After
separating
them the deceased left and went into a passage next to the
tavern.
[23]
When Theko entered the tavern, Neo Molatedi approached him, bleeding
from the left side of his
chest. Neo’s T-shirt had a
bloodstain. As he was shown bloodstains on his own T-shirt he
assumed it was from
Neo’s injury. A few minutes later
they were alerted that somebody had died outside and his body was on
the street.
Theko walked to the passage and found the deceased
lying on his back. Upon close scrutiny he realised that it was
the
same person that he had separated from the accused. He had
blood on his face. When he separated them, the deceased had
no
blood on his face. The deceased was still breathing as he
noticed blood oozing from his mouth. Kidi summoned the
police
and Theko left. The police seized Theko’s T-shirt and
handed it over to the forensic laboratory for DNA testing.
Theko
saw a knife, not a nail clipper, in possession of the accused.
[24]
Tebogo Marvin Malgas is a member of the South African Police Service
(SAPS) attached to the Local
Criminal Record Centre (LCRC). Of
his 14 years’ experience as a SAPS member, 12 years were in the
LCRC. He was
summoned to attend the scene by Sgt Shomoleile of
the Warrenton Police Station who pointed the scene out to him.
Malgas took
the photographs and picked up a knife, with a black
handle and silver blade but it is not a clasping knife, and sent it
to the
Forensic Science Laboratory (FSL) on 26 October 2022 under the
seal number PA 5002897942 for testing. He did not receive any
feedback. Sgt Shomoleile had expressed suspicions that it may
have been the murder weapon. He compiled two photo albums,
one
on 06 February 2023 and the other on 21 July 2023. When Malgas
arrived the emergency services had already left the scene.
[25]
Malgas compiled the second album with the assistance of witness
Oarabile who reportedly stood
about nine meters from the deceased
when he was stabbed, as depicted on point 4 of photos 3 and 4 whereas
point 5 depicts where
the deceased stood when he was stabbed.
The knife found at the scene was 92.1meters from where the body of
the deceased was
found.
[26]
Sgt Gaobuse Andries Shomoleile has been a SAPS member attached to the
Crime Prevention Unit for
the past 15 years. His duties entail
attending to complaints, patrolling and generally preventing crime.
On 22 October
2022 he was on duty patrolling the area when the charge
office contacted him reporting an incident in that area. He
attended
the scene in the company of Sgt Moremi. Upon arrival
they found many bystanders, the person who had made the call to the
police and a person lying on the ground. He observed that the
person lying on the ground had his eyes and mouth open.
No one
could explain to him what had happened. After a short while the
ambulance arrived and the person was certified dead
on the scene.
Next to the body of the deceased was a black and purple bag
containing his identification and a cellphone,
sandals that appeared
to be grey and a green hat. He expressed the view to Malgas
that the knife could have been the murder
weapon because it was not
far from the bloodstains or drops on the ground.
Before closing its case,
the State made available to the defence all the witnesses that it did
not call. The State further
informed the Court that the
forensic results pertaining to the bloodstain on the T-shirt were
still outstanding. There was
also not enough DNA obtained from
the knife PA5002897942 sent to the FSL as confirmed in the affidavit
of Capt. Remembrance Xoliswa
Medupe compiled in terms of s 212 of the
CPA exh “H”.
The
State closed its case
.
The defence case
[27]
The accused did not proceed with his case immediately at the close of
the State’s case
but sought a postponement for the DNA results
on the T-shirt which was sent to the FSL on 29 November 2022.
The Court granted
the defence a postponement until 22 January 2024
for this purpose.
[28]
Section 167 of the CPA deals with the examination of a witness or
person in attendance and stipulates:
“
The
court may at any stage of criminal proceedings examine any person,
other than an accused, who has been subpoenaed to attend
such
proceedings or who is in attendance at such proceedings, and may
recall and re-examine any person, including an accused, already
examined at the proceedings, and the court shall examine, or recall
and re-examine, the person concerned if his evidence appears
to the
court essential to the just decision of the case.”
[29]
On 22 January 2024 and on the basis of s 167 Mr Theko Medupe, a
witness who had already testified
for the State, was recalled to
testify on the blood stain of the deceased’s blood that was
found on his T-shirt on the night
of the incident. He could not
explain how the deceased’s blood had ended up on his T-shirt as
he was not aware that
the deceased was bleeding.
[30]
The accused testified in his defence and did not call any witnesses.
He is 32 years of
age and his highest level of education is
Grade 7. On 22 October 2022 he was with
Tiny Mpiti at Laundry’s
Tavern selling cigarettes and Clorets
gum. He was approached by Neo asking him for cigarettes. Neo
then trampled one
box of Clorets. He enquired from Neo what he
was doing. Neo pushed him on his chest using a 750 ml bottle of
beer.
He produced a nail clipper from his pocket and pulled out
the filing part of the nail clipper with his teeth, and stabbed
Neo
with it on the upper part of the right chest. The reason for
the stabbing was that he was acting in self-defence because
Neo had
pushed him with a beer bottle and had threatened him by saying that
he will not leave the tavern. He denied any involvement
in the
murder.
[31]
The accused saw the deceased at the tavern. The deceased asked
him for a sip of the autumn
harvest wine which was contained in a
2-litre bottle which he last had when he returned from circumcision
school offering the accused
beer in exchange. The deceased
entered the tavern and emerged with Black Label beer but the accused
told him that he preferred
not to mix alcohol and would rather have
Castle beer. The deceased took out a ‘hookah pipe’
and invited him to
take a few puffs but he declined the offer. The
deceased left to smoke the pipe outside. Not long thereafter,
Nene
and Lesego made a report to the accused that the person he was
chatting to earlier, referring to the deceased, was lying in the
passage with blood in his face. They took the accused to the
spot where the deceased was lying and found many bystanders
already
there. The police were also on the scene and cordoned
off the area, clearly to prevent contamination. The
accused
returned to the tavern. He left with Tiny to her boyfriend,
Xolani’s, place. He denied telling Xolani
or Tiny that he
had hit the deceased with a bottle and stabbing him. He denied
arguing with the deceased.
The
defence case was closed.
The law
[32]
It is trite that the burden of proof rested upon the prosecution to
prove its case beyond reasonable
doubt. The following remarks
by Nugent J in
S
v Van der Meyden
[1]
bear repeating:
“
The
onus of proof in a criminal case is discharged by the State if the
evidence establishes the guilt of the accused beyond reasonable
doubt. The corollary is that he is entitled to be acquitted if
it is reasonably possible that he might be innocent (see,
for
example, R v Difford
1937 AD 370
at 373 and 383). These are not
separate and independent tests, but the expression of the same test
when viewed from opposite
perspectives. In order to convict,
the evidence must establish the guilt of the accused beyond
reasonable doubt, which will
be so only if there is at the same time
no reasonable possibility that an innocent explanation which has been
put forward might
be true. The two are inseparable, each being
the logical corollary of the other.”
The issues and the
analysis of the evidence
The assault on Neo
MacDonald Molatedi
[33]
The assault on Neo Molatedi is not placed in dispute by the accused.
In fact, he admits
formally that he produced an object used to
stab Neo on the right side of his chest towards the shoulder. The
dispute pertains
to the object used to commit this offence as well as
the form of intent. While Neo maintains that it was a knife the
accused
is adamant that it was the built-in nail file of a nail
clipper. The State is of the view that despite the nature of
the
injuries, the accused had the necessary intent to cause Neo
grievous bodily harm.
[34]
Neo avers that he was intervening between the accused and the
deceased when the accused produced
a knife and whilst pushing him
(Neo) away said ‘
can’t you see that he has a knife’
,
referring to the deceased. The accused then stabbed him (Neo)
at that time whilst pushing him away. The version of
the
accused, on the other hand, is that he never had an altercation with
the deceased. The accused claims that Neo stepped
on his box of
Clorets gum, a version that was never put to Neo during his
cross-examination, and that caused him (the accused)
to produce a
nail clipper and stab him (Neo) on his shoulder. Neo was not a
single witness. Oarabile testified that
he saw Neo intervening
when the accused had accosted Neo. Xolani also repeated the
confession made to him by the accused
that Neo had intervened between
him and the deceased. I am not persuaded that the cautionary
rule finds application because
the accused also admits that he
stabbed Neo but he did so in self-defence. The situation did
not call for self-defence because
he was the aggressor. The
evidence is overwhelming that he could not and did not use an
embedded nail clipper file but a
knife.
[35]
The question that remains to be answered is what was the intention of
the accused when he stabbed
Neo? Was there an intention to
cause him grievous bodily harm?
[36]
According to Snyman
[2]
assault
consists of any unlawful and intentional act or omission (a) which
results in another person’s bodily integrity being
directly or
indirectly impaired, or (b) which inspires a belief in another person
that such impairment of [his or] her bodily integrity
is immediately
to take place. The elements of the crime are the following: (a)
conduct which results in another person’s
bodily integrity
being impaired (or the inspiring of a belief in another person that
such impairment will take place); (b) unlawfulness;
and (c)
intention.
[37]
The slightest touch by one person on another amounts to assault. It
is not a requirement
of the crime that the perpetrator should injure
his or her victim for the offence to be committed. In as far as
the element
of lawfulness is concerned, the causing of the impairment
on the complainant must be unlawful. Couched differently, the
accused
person must have a ground of justification. For the
element of intention to be present, the accused must have intended to
apply force to the person of another and
dolus eventalis
is
sufficient. See
S v Erasmus
2005
(2) SACR 658
(SCA) at
para 10.
[38]
Based on the two conflicting versions, the accused’s version of
stabbing Neo for having
stepped on his Clorets box is a fabrication
at variance with what was put to the witnesses, i.e. that Neo had
pushed him with a
beer bottle and that he had acted in self-defence.
Neo said it was at the time of his attempt to intervene between
the accused
and the deceased that the accused had inflicted his
injury. It must be borne in mind that he was armed with a
knife. Having
regard to the sensitive area where he stabbed
Neo, the accused evidently wanted to cause him grievous bodily harm
(GBH). That
grievous bodily harm did not eventuate, does not
expunge the intention.
[39]
To sum up: Neo, Oarabile and Xolani are credible witnesses and gave
reliable evidence. On
the other hand, the accused fabricated
his evidence of self-defence. He was not under any imminent
danger from Neo because
Neo was unarmed. I am therefore
satisfied that the State proved beyond a reasonable doubt that the
accused assaulted the
complainant, Neo Macdonald Molatedi, with the
intention of causing him grievous bodily harm. As Brand JA has
pronounced in
Erasmus
[3]
,
the necessary form of intent being
dolus
eventualis
was present.
The murder of Tshepang
Earnest Lukang
[40]
It is incontrovertible that the deceased was killed at Laundry’s
Tavern on the night of
22 October 2022. Regard being had to the
testimony of Dr Kanaomang, it cannot be gainsaid that one stab wound
on the deceased
led to the blood aspiration that caused his death.
Therefore, the first issue to be determined is who the assailant was.
It is significant to move from the premise that this incident
was observed by different witnesses from different vantage points.
[41]
The proper approach to the evaluation of the evidence has been laid
down by the Supreme Court
of Appeal in
S
v Chabalala
[4]
as follows:
“
[15]
…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.”
[42]
As stated earlier, the State led the evidence of two minor witnesses
who testified through an
intermediary. Mr Steynberg, for the
accused, attacked the role of the intermediary claiming that while
she was correctly
sworn in as an intermediary and fulfilled her
functions relaying questions to the witnesses, she also acted as an
interpreter as
she relayed and interpreted the evidence given by the
two witnesses back to the Court. Invoking
S
v Bongani
[5]
and
S
v Mponda
[6]
,
Steynberg
submitted that this Court should reject the evidence as inadmissible
as the intermediary was not sworn in as an interpreter.
It is
sensible and pragmatic to deal with this attack first as it will
determine what weight, if any, to attach to the evidence
of Oarabile
and Tumisang.
[43]
The interpreter allocated to these proceedings, Mr Thomane, is an
experienced senior interpreter
who interpreted from commencement to
finalisation of this trial. As much as the witnesses were
Setswana speaking and the
intermediary and the interpreter were
conversant in Setswana, Mr Thomane was the interpreter in the
proceedings and the roles were
clear. This aspect was in fact
clarified in chambers with the legal representatives at the inception
of the trial. I
took the liberty of checking the record of
proceedings for the dates 27 July 2023 and 28 August 2023. The
record shows the
names of the minors responding. Where Ms Louw
spoke, the record shows her name but it was in the initial stages
where the
Court addressed her directly or where she was pointing out
that the microphone was dysfunctional and they were unable to hear or
follow the proceedings. Ms Louw, throughout the proceedings,
kept giving the microphone to the minors to speak. On
28 August
2023 I remarked that Mr Thomane is interpreting for the Court in its
entirety and the intermediary is responsible for
the person sitting
next to her. Meaning that she must simplify what is put to him
at his level. I am therefore of the
view that the interpreter,
Mr Thomane, had performed his functions as was required of him. It
therefore follows that the
attack by the defence on the purported
dual role played by the intermediary lacks merit and stands to fail.
Resultantly,
the evidence of the minor state witnesses,
Oarabile and Tumisang, will be taken into consideration in the
assessment of the evidence
of the murder offence.
[44]
Mr Steynberg argued that because the state witnesses’ evidence
is riddled with contradictions
and improbabilities it should be
rejected and the accused acquitted. The SCA has definitively
pronounced in
S
v Mkohle
[7]
on
contradictions in the witnesses’ evidence and said:
“
Contradictions
per se do not lead to the rejection of a witness' evidence. As
Nicholas J, as he then was, observed in S v Oosthuizen
1982 (3) SA
571
(T) at 576B-C, they may simply be indicative of an error. And (at
576G-H) it is stated that not every error made by a witness affects
his credibility; in each case the trier of fact has to make an
evaluation; taking into account such matters as the nature of the
contradictions, their number and importance, and their bearing on
other parts of the witness' evidence.”
The
defence attacked Oarabile’s version in that his police
statement did not include the aspect of the accused having hit
the
deceased with a bottle. His response was that he remembered
this aspect after furnishing the statement and during his
testimony.
The SCA in
Mkohle
[8]
reiterates
the general rule that a witness’s previous consistent statement
has no probative value (Hoffman and Zeffert
The
South African Law of Evidence
4
th
ed at 117
).
An
exception to the rule occurs where it is suggested that the witness’s
story is a recent invention. This was not the
case with
Oarabile.
[45]
It is true that on face value one can see contradictions in the
witnesses’ versions of
events. There is also conflicting
evidence on whether the deceased had a knife or not. I do not
think the contradictions
materially affect their credibility neither
do they support the rejection of their evidence. In actual
fact, I find that
there was corroboration on material respects. It
is significant to remember that Neo and Tumisang are two
unsophisticated
minors. It cannot be expected that the
testimony of the witnesses would be perfect and similar in all
material respects because
they relied on their recollection of
events.
Assessing the accused’s
evidence
[46]
I am mindful that the accused does not bear any
onus
to prove
his innocence. In short, the accused’s version was that
Neo had asked him for a cigarette but that he had
stepped on a box of
his Clorets gum. The accused said when he enquired from Neo
what he was doing, Neo pushed him with a
750ml bottle of beer. The
accused states that he acted in self-defence when he produced a nail
clipper from his pocket, pulled
out its nail filing part with his
teeth, and stabbed Neo on his right shoulder.
[47]
The accused’s version is farfetched. It cannot be
reasonably possibly true. The
witnesses testified that the box
of Clorets was under his armpit. It is unfathomable how Neo
could then have trampled on
it. A more plausible explanation is
that Neo never trampled on the Clorets box. It is also
inexplicable why Lesego
and Nene would report the deceased’s
death to the accused if he did not partake in causing the injury that
had led to his
death. The evidence by Tiny has the ring of
truth that the tavern patrons started talking amongst themselves
about the accused
having killed the deceased which led to her
enquiring from him whether it was true. What is also noteworthy
is the narration
by Xolani and Tiny of the events as confessed to
them by the accused. Neither Tiny nor Xolani witnessed the
stabbing but
testified to what the accused had relayed to them that
night. There is no basis to find that their version might have
been
a fabrication. I am of the view that the accused did not
proffer a truthful account of the incident.
[48]
This incident was not static. As already stated, the witnesses
observed it from different
vantage points. Whereas it is
contended on behalf of the accused that the estimation of the size of
the knife by all the
witnesses does not correlate with the estimated
size of the blade as indicated by the doctor, the witnesses are all
unsophisticated
and theirs was but an estimate of a shiny knife. A
common thread that ran through their evidence was that the object
used
to attack the deceased was not a nail clipper but a knife. The
accused’s friend, Tiny, who was with him earlier at Tony’s
tavern saw him opening a wine bottle with the same silver or shiny
knife which he had used that night at Laundry’s tavern.
It
can be accepted that the accused related what transpired freely and
voluntarily. The light inside the premises at
the veranda
provided the illumination, which was adequate for the witnesses to
identify the assailant. There can be no issue
on the identity
of the perpetrator as the witnesses knew the accused. The
defence challenged the fact that Oarabile was not
afforded the
opportunity to identify the accused as the assailant and that created
a gap in the state’s case. I disagree.
Oarabile
refers to the accused as “
Mawila”
and they reside
in the same street. The accused knows Oarabile by his middle
name, “
Oakanang”
. Oarabile implicated the
accused from the previous night and the accused did not even say
anything in that regard. Oarabile
placed the accused on the
scene. There can be no doubt that Oarabile and the accused are
known to each other.
[49]
Oarabile gave detailed evidence and painted a graphic picture of the
accused’s pre-planned
killing of an unidentified person the
next day. He made his observations standing outside the tavern
premises but had a clear
and unobstructed view of what was happening.
His narration of what transpired is not only sensible but also
coherent and
credible. He bought Clorets gum from the accused
just before the stabbing occurred. He observed how the accused
produced
the knife which he unclasped with his teeth whilst his (the
accused’s) other hand restrained the deceased. He was
able
to point out where the deceased was stabbed and how he was
stabbed. Oarabile saw the accused hitting the deceased with a
beer bottle on his forehead but that it did not break. This
piece of evidence is corroborated by Xolani who was not even at
the
scene of the incident but came to know about the incident as narrated
by the accused himself.
[50]
There is corroboration for the version that the accused opened the
knife with his teeth. The
witnesses are also adamant that the
weapon was a knife and not a nail clipper as contended by the
accused. Dr Kanaomang’s
evidence ruled out the nail
clipper as the weapon that could have killed the deceased.
[51]
In as far as the improbabilities alleged by the accused are
concerned, the following is noteworthy.
Neo’s version can
not be assessed in isolation when he said after the stabbing when he
tried to intervene, he returned to
the tavern to report to Theko.
There is nothing in the evidence that indicates the time lapse
between Neo’s stabbing
and the stabbing of the deceased.
Despite the knife having been produced, it is not improbable
that Theko arrived to intervene
after Neo had left. That
explains the deceased’s blood on his T-shirt. Whether he
denies that the blood belonged
to the deceased and maintains that it
is Neo’s is beside the point because DNA results showed that
the blood on Theko’s
T-shirt matched the deceased’s
blood. It cannot be correct, as contended by the defence, that
Oarabile implied that
the stabbing must have happened immediately
after the opening of the knife.
[52]
Hearing differs from person to person informed by different factors
and health conditions. It
cannot be improbable for a 15-year
old’s hearing to be better than an older person’s
hearing. The attack on Oarabile’s
hearing of the
conversation between the deceased and the accused can, without more,
not be sustained. It is incorrect to
argue it as an
improbability that because Neo and Theko could not hear the
conversation it stands to reason that Oarabile could
also not have
heard it.
[53]
The account of Neo, Theko, Tiny, Tumisang and Oarabile is direct
eyewitness testimony.
They could not have mistaken the
assailant because the illumination was good and they knew each other.
The significance of
the accused’s evidence is that he
unwittingly placed himself on the scene of crime. There is no
suggestion, let alone
evidence, that any of the patrons present at
Laundry’s Tavern could have carried out the murder. The
irrefutable evidence
is that the accused had caused the deceased’s
injury that had led to his death.
[54]
Snyman
[9]
writes that the test
in respect of intention is subjective and can be inferred from the
objective facts proved by the state. What
remains
uncontroverted is that the accused was in possession of a knife which
he aimed at the deceased’s upper body which
blow landed on the
deceased’s left upper chest wall, just underlying the medial
3
rd
of the clavicle. In
S
v Sigwahla
[10]
the
court dealt with the aspect of ‘intention to kill.’ Of
importance, following the court’s analysis of
the
Sigwahla
case,
is first, the part of the body that is injured is relevant; secondly,
the fact that the accused was indeed armed with a knife
and had
advanced at the unsuspecting person resultantly causing a 1 cm
incision that led to internal bleeding and eventual blood
aspiration,
inferentially shows that the blow was aimed at the vulnerable part of
his body. Holmes JA reasoned:
[11]
“
In
my opinion the only reasonable inference from those facts is that the
appellant did subjectively appreciate the possibility of
such a stab
being fatal. In other words I hold that there exists no reasonable
possibility that it never occurred to him that his
action might have
fatal consequences, as he was advancing on the deceased with the
knife in his hand and as he was raising his
arm to strike and as he
was aiming a firm thrust in the general direction of the upper part
of his body.”
[55]
Considering the weapon used and the part of the body that was aimed
at as well as the comments
made to Oarabile and his friends the night
before the incident, I find that the accused had the direct intention
to kill the deceased
without any lawful justification.
[56]
The evidence that the accused caused this death is overwhelming and
irrefutable. The accused
was presented with direct and credible
evidence by the state. With regard to the credibility of the
witnesses, I considered
the totality of the evidence presented
including inconsistencies, probabilities and improbabilities, the
strength and weaknesses
of either versions as well as their weight.
The evidence of the state witnesses corroborated each other in
material respects.
Where there were inconsistencies in the state
case, I found them not to be adversely affecting the state’s
case. The
witnesses were able to paint a picture of the
incident through the chronology of the events of that evening.
Even if the
State’s case cannot be said to have been without
blemish in the versions of the individual witnesses, the totality of
the
evidence, nevertheless, presented a formidable case against the
accused.
[57]
I am satisfied that the state has discharged its duty to prove its
case beyond reasonable doubt.
The accused intentionally stabbed
the deceased without any justification. The accused’s
version is far-fetched
and untenable. I therefore reject the
version of the accused not only as not reasonably possibly true but
indeed fabricated.
On a conspectus of all the evidence in this
case I return the following verdict against the accused:
1.
Count 1: I find the accused guilty of
assault with intent to do grievous bodily harm.
2.
Count 2: I find the accused guilty of
murder with
dolus directus
as the form of intent.
MAMOSEBO J
THE HIGH COURT
NORTHERN CAPE
DIVISION, KIMBERLEY
For the State
Adv E Mafunisa
Instructed by:
The Director Public
Prosecutions
For Accused:
Mr H Steynberg
Instructed by:
Justice Centre,
Kimberley
[1]
1999
(1) SACR 447
(W) at 448f -g
[2]
Snyman’s
Criminal Law, seventh edition updated by SV Hoctor , Lexis Nexis p
395
[3]
Para
38 above
[4]
2003
(1) SACR 134
(SCA) para 15
[5]
2001
(1) SACR 670
(C) at 673 E – G and
[6]
2007
(2) SACR 245
(C) para 35
[7]
1990
(1) SACR 95
(A) at 98E – F
[8]
Para
45 above
at
p99D
[9]
Snyman’s
Criminal Law, seventh edition, Lexis Nexis, p389
[10]
1967 (4) SA 566
(A) at 570
[11]
At 570H