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[2024] ZANCHC 75
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S v Ratel (K/S 17A/2023) [2024] ZANCHC 75 (21 June 2024)
FLYNOTES:
CRIMINAL – Evidence –
Hearsay
–
Contents
of extra-curial statements disavowed – Admittance as
evidence – Statements made voluntarily – Extensively
cross-examined on contents of statements which were admitted into
evidence – Statements pivotal to state’s case
–
Contents admitted against accused in interests of justice –
Accused acted violently towards deceased –
Culpability for
murder established beyond any reasonable doubt –
Law of
Evidence Amendment Act 65 of 1988
,
s 3(1)(c).
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No: K/S 17A/2023
Heard on: 13 –
17/11/2023;
27/11 –
01/12/2023;
27 – 31/05/2024
Delivered on:
21/06/2024
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
JACOB
RATEL
Accused
JUDGMENT
MAMOSEBO
J
[1]
The accused, Mr Jacob Ratel, faced four counts: Murder read
with
s 51(1)
of Act 105 of 1997 and three counts of assault with
intent to do Grievous Bodily Harm (assault GBH). Before
pleading to the
charges, he confirmed that his legal representative,
Adv. K Biyela, had explained to him the provisions of the Criminal
Law Amendment
Act (the CLAA).
[2]
The accused pleaded not guilty to all four counts in terms of s 115
of the Criminal
Procedure Act, 51 of 1977 (CPA). His plea
explanation, which his legal representative confirmed was in
accordance with his
instructions, was the following: In Count 1, he
denies causing the death of the deceased; the allegations relating to
counts 2
to 4 are denied and the State was put to the proof thereof.
[3]
The accused made written formal admissions in terms of s 220 of the
CPA, signed by
both himself and his legal representative, admitting:
3.1
the identification of the body as that of R[...] L[...] L[...] by
S[...] B[...] v[...] R[...];
3.2
the report on a medico-legal post-mortem examination compiled by Dr
Lemaine Fouché;
3.3
that the body of the deceased sustained no further injuries from the
time that it was removed
from Sewende Laan until a post mortem
examination was performed thereon by Dr Fouché on 19 May 2021
at Kimberley; and
3.4
the sworn statement, key to sketch plan and photographs by W/O
Gaonathebe McNulty Diphephenyane
attached to the Kimberley Local
Criminal Record Centre.
Count 1: Murder
[4]
This is how the events in Count 1 unfolded. Dr Lemainé
Fouché
is an experienced Principal Forensic Pathologist whose
credentials are not disputed. On 19 May 2021 she conducted the
post
mortem examination on the body KDR 138/2021 and compiled a
report in terms of s 212(4)(a) of the CPA marked Exh D. Attached
to the report are diagrams with injuries observed by the doctor for
easy reference. The body had not only reached
rigor mortis
,
that means it had stiffened, but also hypostasis (discolouration) on
the posterior surface of the trunk and limbs. The injuries
and
the discolouration make the photos too ghastly to view. The
doctor extensively explained each injury not only in the
report but
orally in court.
[5]
The chief post mortem findings made by the doctor are the following:
The body
of a coloured adult female with multiple bruises,
abrasions and lacerations to the head, torso, arms and legs. There
were
extensive under-scalp haemorrhages over the skull. The
brain is macroscopically swollen with flattening of the gyri. There
is a subdural smear of blood over the brain. There is a
subarachnoidal haemorrhage over the left cerebral lobe. There
is haemorrhage into the interstitial tissue of the neck on the right.
There is blood in the abdominal cavity. There
is
haemorrhage into the mesenterium. There is haemorrhage into
perinephric tissue of the left kidney.
Dr Fouché
concluded that the cause of death was blunt trauma.
[6]
S[...] V[...] R[...] is the deceased’s sister. The
deceased, R[...] L[...],
cohabited with the accused since 2018 in her
sister’s shack. S[...] visited her sister on Saturday
morning 15 May 2021.
They chatted and cleaned the shack.
The accused arrived later. He insulted, shouted and
yelled at the deceased demanding
R50.00 from her that he claimed he
had given her on 14 May 2021. The deceased told him that the
two of them bought alcohol
with that money. He went to the
bedroom, took her clothes and set them alight under a tree using
diesel that S[...] had kept
in a 2-litre bottle used to mix with
putty to install window frames. He also threatened to set the
shack alight. He
said he was burning the clothes for his
R50.00. The deceased returned the insults and told him to leave
because he was involved
in a love relationship with Tollies Magdeline
Gerts. S[...] phoned the police but there was no answer.
S[...] advised
the deceased, in the presence of the accused, to
end their relationship, because he was hurting her.
[7]
The deceased left reportedly going to the accused’s mother’s
place.
The accused also left but S[...] remained behind
cleaning the shack. The deceased had consumed liquor but she
was not drunk.
The deceased returned around 19:00 and suggested
her sister go home since the accused’s mother had summoned the
police
and the accused had been arrested. The deceased told her
that she was going to sleep. When S[...] left at around 21:00
promising to return the following day, 16 May 2021, the deceased was
crying but unharmed.
[8]
The following morning S[...] arrived at the deceased’s place
between 09:00 and
10:00 and found the padlock hanging on the door.
To her it was an indication that the deceased was not home.
She searched
for the deceased but nobody knew her whereabouts
and she returned to her mother’s place. On Monday morning
she went
to work but was summoned by her mother to return home only
to be notified of her sister’s passing.
[9]
Ms Mpho Motabogi is 35 years old and unemployed. She and the
accused’s
sister, Daisy Plaatjies, are friends. She was
aware of the love relationship between the accused and the deceased.
She
was telephonically contacted by Daisy on Monday morning
requesting her to accompany her to look for the deceased at her
shack.
Daisy told her that her mother had phoned her to say
that the accused was at home and had confessed that he killed the
deceased
and was threatening to commit suicide.
[10]
Mpho accompanied Daisy to the deceased’s shack. Daisy was
afraid to enter the shack.
Mpho pushed the door open and found
the deceased covered with a blanket on the bed. Mpho shouted
the deceased’s
name three times but she was unresponsive. Mpho
and Daisy went to aunt Matsotso, Daisy’s aunt, and returned
with her
to the deceased’s shack. Aunt Matsotso uncovered
the blanket up to the deceased’s waist and, without touching
her, noticed that the body lay lifeless on the bed. They both
stepped outside and told Daisy that the deceased was not breathing.
Daisy appeared shocked. The deceased’s face was swollen,
black and dark purple. She had blue stains (bruises)
on her
body. They remained there until the police arrived. The
police interviewed and obtained statements from them.
Mpho was
not cross-examined by the defence and her evidence remains
uncontroverted.
[
11
]
Ms Rolene Visagie is 38 years old with matric and busy with a
learnership. She knows the accused
from school and was aware of
the relationship between the accused and the deceased. She was
also aware of the love relationship
between the accused and her
neighbour, Magdeline Tollies Gerts. She only became aware of
the incident on Monday, 17 May 2021.
At around 06:00 in the
morning, when she returned from the outside toilet, she saw the
accused emerge from Tollies’
residence. He had two
bottles of beer in his hands. He did not spend the night at
Tollies’ home because she had
heard him knocking around 02:00
that same morning. Their houses are in close proximity to one
other.
[
12
]
Rolene asked the accused for some beer and he said he just needs to
exchange them for cold ones
and will return shortly. The
accused returned about an hour later with two cold beers. They
were joined by Tollies
and her sister at her home. They imbibed
liquor from around 07:00 in the morning until around 16:00 when Mmeme
arrived and
broke the news about R[...]’s passing. The
accused looked shocked and said “
now I have done s**t.”
(nou het ek k*k gemaak).
The accused demanded that Tollies
accompany him. Rolene followed the accused up to the gate,
curious to know what was
going on. They were not drunk because
they were five and had shared about four or five 750 ml beers.
She asked him
what happened and he said “
Bolle, I killed the
lady”. “Bolle”
is Rolene’s nickname. He
told her he just wants to get to his mother and left with Tollies.
Shortly after they
left, the police arrived looking for the
accused. Yvonne Gerts corroborates Rolene’s evidence in
all material respects.
The only difference, which is not
material, is that she heard the accused saying “
what s**t
did I do?”
[
13
]
Tollies is 39 years old and the accused is her ex-boyfriend. The
relationship was terminated
after his arrest. She was aware
that she was in a love triangle with the accused and the deceased.
She saw the deceased
on Friday at Madiks Club not far from the
deceased’s place. When she arrived at the club she saw
the deceased removing
money from the accused’s pocket. The
accused was inebriated. Tollies enquired from her what she was
doing and
another patron, unknown to Tollies, started yelling at her
and the club owner kicked them out. Tollies went home. She
does not know where the accused had spent the Friday night.
[
14
]
Tollies saw the deceased again the following day (Saturday) at Madiks
Club. The deceased demanded
money from the accused. An
argument ensued and insults were exchanged. The deceased pushed
the accused and he slapped
her once. Tollies intervened. The
owner gave the three of them (the accused, the deceased and Tollies)
marching orders.
The accused told Tollies they should leave but
the deceased followed them. They went to the accused’s
sister’s
place. The accused and the deceased started
arguing again until Daisy emerged and wanted to know what was going
on. Tollies
explained, at which stage the deceased grabbed the
accused by his T-shirt on the chest for which Daisy reprimanded her.
The
accused slapped the deceased causing her to fall on her
back. He told her to leave but she remained seated on the
ground.
Tollies did not notice any injuries on the deceased.
[15]
The accused and Tollies returned to Madiks Club and consumed Black
Label beer. They had
left the deceased and Daisy at Daisy’s
place. Tollies fetched her children from her ex-boyfriend’s
residence.
As she walked past Daisy’s place the accused
accosted her and pinned her against the fence with her three-year old
toddler on her back. He also throttled her and she stabbed him
with a blunt knife causing him to release his grip. He
accused
her of having been intimate with her ex-boyfriend. She did not
see the accused at all on Sunday but he arrived at
around 02:00 in
the morning on Monday when he asked her for cigarettes, which she
gave him and he left.
[16]
Tollies narrates further that the accused showed up again later that
morning with two beers and
a carton of milk. They consumed one
beer and took the milk to his mother’s home. They then
went to Rolene’s
place next door where they drank beer
together. Her evidence corroborates what was testified to by
Rolene and Yvonne pertaining
to Mmeme’s arrival, the
conversation at the gate and the accused’s departure in all
material respects.
[17]
When the accused joined Tollies he was carrying two more beers.
After having one beer the
accused asked Tollies to accompany
him to his mother’s place for him to break the news to her.
When Tollies asked him
where he was the previous day he said
that he had slept at his mother’s place for the entire day.
They did not find
his mother home. The police arrested
him on the way. In the presence of the police and other people
at the police station
the accused threatened to kill Tollies should
she be promiscuous while he was in detention. Without any
solicitation Tollies
says the accused told her that the deceased was
seeing a white man and he saw his bakkie parked at her place.
[18]
On 17 May 2021, Sgt Modirapula Albert Moreotsenye, with 15 years’
experience as a member
of the SAPS stationed in the charge office at
the Delportshoop police station, was responsible for attending to
complaints and
patrolling duties. He received communication
through a two-way radio that Ms Daisy Plaatjies had called the police
station
reporting that she was uncertain whether R[...] was still
alive or had died and requested the police to visit her home for
verification.
He was accompanied by Cst Bartnes. They
attended the scene at 2[...] S[...]. The community had already
gathered at
the shack. Daisy was among them. Despite her
pointing the shack to them she declined the invitation to enter the
shack
with the police. Sgt Moreotsenye and Cst Bartnes entered
and found the deceased lying on her back covered with a blanket.
He
observed that her face was swollen and discoloured. She did not
look alive as there was no movement. He further
observed
bloodspots on the curtain and on the carpet next to the bed as well
as a bloodstained wooden plank next to the bed. They
cordoned
off the shack and summoned other police officials and an ambulance.
The deceased was certified dead. Members
of the Local
Criminal Record Centre (LCRC) arrived and W/O Diphephenyane took
photographs of the scene. Sgt Moreotsenye observed
injuries all
over the deceased’s body and a bloodstained wooden plank next
to her body. W/O Diphephenyane was confirmed
to have died on 18
July 2023 and therefore Sgt Moreotsenye explained the scene as
depicted on the photo album received as Exh B.
[19
]
Pursuant to the preliminary investigation by Sgt Olebogeng Raphael
Khoboho, informed by statements
obtained at the scene, the suspect
became known as Jacob Ratel, the accused. He is known to the
police. Sgt Moreotsenye
and Sgt Khoboho searched for the
suspect driving around the township. The accused was found at
Nkele Street. Sgt Moreotsenye
introduced himself and informed
him of the murder that was committed and that he is a suspect. He
informed him of his constitutional
rights and arrested him. He
was with Tollies who accompanied them to the police station. Sgt
Moreotsenye completed
form 14A which the accused refused to sign as
witnessed by W/O Drier. The accused had threatened to kill
Tollies should she
be promiscuous while he was in prison. Tollies
left. Cst Ike Bartnes is a member of the SAPS with 10 years’
experience.
He was the driver of the patrol vehicle accompanied
by Sgt Moreotsenye. He essentially confirmed Sgt Moreotsenye’s
testimony and was not cross-examined by the defence.
[
20
]
Marlyn Daisy Plaatjies is 32 years old and the accused’s
younger sister. Her highest
level of education is Grade 10.
She is in the Expanded Public Works Programme (EPWP). The
deceased was introduced to
her by the accused as his girlfriend. She
has known her for several years. The deceased frequented her
place. She
last saw the deceased on Saturday in the company of
the accused and Tollies at around 19:00 when they were yelling at
each other.
The deceased was bleeding from her mouth and told
Daisy that she wanted her money from the accused. She then
grabbed
the accused by his T-shirt on his chest and Daisy broke the
deceased’s grip. The accused pushed the deceased and she
fell on her back. Daisy left them and went to stand at the
corner of the house. She heard Tollies telling the deceased
that she (the deceased) had taken R100.00 from the accused whilst he
was passed out at the shebeen. The accused told her
that he
kicked and trampled on the deceased’s head but she did not
witness that. She told him to stop hitting the deceased.
The
accused and Tollies left with Tollies’ two children who were
left at Daisy’s home earlier. Daisy did
not see any other
injuries on the deceased except for the blood from her mouth.
Daisy went inside her house to dress warmly
and left to play cards
elsewhere.
[
21
]
On Daisy’s return she saw Tollies walking in front of the
accused. The accused warned
her not to go near Tollies because
she had a knife. Daisy walked the accused halfway because she
was afraid Tollies might
injure him. He went to the deceased’s
house. She did not enter the shack but stood outside. She
left for
her place while the accused remained knocking at the
deceased’s shack.
[22]
Daisy testified that she did not see the accused on Sunday. On
Monday her mother called
and requested her to look for R[...] to
assist her with washing some blankets. Mpho Motabogi
accompanied Daisy to the deceased’s
place. They saw a
brick behind the burglar door and Mpho removed it. Mpho pushed
the door open and entered. She
shouted R[...]’s name but
there was no response. When asked why she did not enter she
said “
I just did not want to enter
”. Mpho
came out and said R[...] was not breathing. She suggested that
they find an elder to make an observation.
They went to her
aunt Matsotso who accompanied them to the deceased’s place.
[23]
Again Daisy did not enter the shack. They confirmed R[...] had
died. Daisy suggested
that they report the matter to the
police. She also called her mother and told her that R[...] had
passed on. Her mother
came to the scene but did not stay long.
Daisy made her statement on that same day. She confirmed
her and her mother’s
telephone numbers as those appearing on
the cellphone data analysis report. In Court she was shown the
report and asked to
comment on the times she and her mother had
called one another and the reasons for those calls. She
initially said she called
her mother to speak about the children but
later changed her version and said she does not remember the reason
for the calls because
she and her mother spoke often.
[24]
Gladys Ratel is the accused’s mother. She is 58 years
old. She never attended
school and is unemployed. She
confirmed calling her daughter, Daisy, on Monday morning at around
11:00, requesting her to
communicate with the deceased to assist with
the laundry. Daisy called her back and said she must come
quickly and see what
happened. She first went to Daisy’s
place and when she did not find her there, she proceeded to the
deceased’s
place. She found the police and Daisy there.
Daisy told her that the deceased was lying there inside the
shack. She
sought and obtained permission from the police to
enter the shack. She saw the deceased lying on the bed and then
she went
to Daisy’s place.
[25]
On Friday he arrived home after work but left shortly thereafter.
She does not know where
he went. He returned that same
evening but left again. He returned home on Saturday morning
stating that he was from
Tollies. He was not long at home but
spent the entire Saturday away and only returned home around 24:00
when he demanded
food. According to her, the accused was not
aware of the passing of the deceased. On Sunday morning she
asked him to
fix her stove because she wanted to cook before going to
church. He fixed it and returned to bed.
[26]
The State pressed her for clarity on the three phone calls made at
23:49:08; 01:44:42 and 11:18:18
on Monday morning. Her
explanation was that she had called Daisy to reprimand her for being
at the tavern that late because
she was a married woman. She
called her at 01:44:42 to ascertain if she had gone home. She
called her again on Sunday
morning to make cooking arrangements. The
call on Monday morning was for Daisy to ask the deceased to come and
assist her
with washing her blankets. When Daisy returned her
mother’s call on Monday at 11:41:45 they spoke for 82 seconds.
According
to her that is when Daisy called her to the
deceased’s shack. She further called Daisy at 11:41:45;
11:44:42 and 12:45
explaining that they usually call each other. She
denied phoning Daisy at 02:00 am on Sunday morning telling her that
the
accused’s shoes were bloodied. She
also
denied any knowledge of the accused having confessed to her that he
had killed the deceased and had threatened to commit suicide.
[27]
The State called the cellphone data analyst and profiler, Lt Col
Hanlie C
onradie, a SAPS member with
35 years’ experience of which 12 years were in Crime
Intelligence. She received a request
to establish whether there
was communication between two cellphone numbers and whether they were
in the same cell tower vicinity
or otherwise. The request
related to a murder investigation in Delportshoop CAS47/05/2021.
[28]
Col Conradie established from the RICA information on 14 July 2020
that the phone number 0[...]
belonged to Elizabeth Vos. The
Towers activated for the period 15 to 17 May 2021 were Delportshoop
CEN1 and Ulco CEN2. Data
received regarding cellphone number
0[...] started on 15 May 2021 and ended on 17 May 2021. The
RICA information on 26 September
2014 reflected as that of Daisy
Ratel. Towers activated for the periods 15 to 17 May 2021 were
Delportshoop DC and Dikgatlong
ATC. Col Conradie provided a
Microsoft excel spreadsheet showing the communication between the two
cellphone numbers, date,
time, record type, calling number and called
number, call duration, originating base station as well as the
originating suburb.
[29]
From the analysis made, Col Conradie confirmed that the following
calls were made, and for convenience,
I will reflect the numbers on
the first sentence but thereafter, use the name Daisy for cellphone
0[...] and mother for cellphone
0[...] for the period 15 May 2021 to
17 May 2021:
29.1
On Saturday, 15 May 2021 cellphone number 0[...] (Daisy) called
0[...] (mother) at 23:49:08 and the
call duration was 120 seconds.
29.2
On Sunday, 16 May 2021 mother called Daisy at 01:44:42 and the call
went to voicemail.
29.3
On Sunday, 16 May 2021 Daisy returned her mother’s call at
01:45:09 which lasted 62 seconds.
29.4
On Sunday, 16 May 2021 mother called Daisy at 11:10:36 and the call
lasted 24 seconds.
29.5
On Monday, 17 May 2021 Daisy called mother at 11:18:18 which lasted
for 41 seconds.
29.6
On Monday, 17 May 2021 mother called Daisy at 11:41:45 and their call
lasted for 82 seconds; and again
at 11:44:42 for the duration of 41
seconds; and a further call at 12:45:23 which lasted for 92 seconds.
[30]
Col Conradie assured the Court of the reliability of the records
provided as obtained from the
towers. According to her
testimony, the information cannot be altered before it is received as
it comes on a .
Mr Biyela neither cross-examined the
witness nor disputed her credentials.
[31]
It became apparent to the State during the testimony of Daisy and her
mother that their evidence
was in stark contrast to the facts they
had disclosed in their statements to the investigating officer, Sgt
Khoboho. It is
plain that their testimony was glaringly
straying from the truth. The version furnished by Daisy to Sgt
Khoboho appears to
be consistent with the version of the other
witnesses, more particularly, Rolene Visagie and Mpho Motabogi.
Similarly, Ms
Ratel’s two statements are inconsistent
with her
vivo voce
evidence and her daughter Daisy’s, as
well as that of Sgt Khoboho. The State submitted that the
deviation was untruthful
and
mala fide
and therefore
detrimental to the State’s case. The State sought leave
to hand in Daisy’s and Ms Ratel’s
prior statements under
s 190 (2) of the CPA to have them declared hostile witnesses.
[32]
Where a party calls a witness, who gives evidence which is
unfavourable to him/her there are
three courses open to such party:
(a)
He or she may lead evidence to contradict the unfavourable witness
(
Moothoosamy v Murugan
(1919) 40 NLR 402
;
Hampson and Co v
Else
(1884) 2 HCG 439;
(b)
He or she may ask the court to declare the witness hostile, thus
allowing the person
who called the witness to cross-examine them;
(c)
He or she may prove a previous inconsistent statement made by the
witness in terms
of sub s (2) of s190 of the CPA.
[1]
[33]
The test to declare a witness hostile was revisited by the SCA in its
recent judgment in
S v Makhala and Another
2022 (1) SACR 485
(SCA) at para 88:
“
[88]
The mere fact that a witness gives evidence that is unfavourable to
the party calling the witness does
not render the witness hostile.
However, the need to show an intention to prejudice, as
reflected in Steyn, does not appear
to be the position in English law
on 13 May 1961, as required by s 190(1) of the CPA. The test
was stated in Meyer's Trustee
v Malan
[2]
to
be as follows: the court must decide whether the witness is adverse,
from his demeanour, his relationship to the party calling
him, and
the general circumstances of the case. This test is not predicated on
proof of a subjective intent to prejudice.”
[34]
Regard being had to the test enunciated in
Meyer’s Trustee
above and that it is a matter in the discretion of the court in every
case, I found that the demeanour of Daisy and her mother
was
dishonest and untruthful. Their relationship with the
investigating officer, as testified to by Sgt Khoboho, changed
negatively from the moment he opposed the accused’s application
to be admitted to bail. They refused to testify
on behalf
of the State and were reluctant to attend consultations with the
State. I therefore concluded that Daisy and her
mother were
hostile towards the State and they were declared hostile witnesses.
The State was allowed to cross-examine them
on their
inconsistencies.
[35]
This is what Daisy deposed to in her statement furnished to Sgt
Khoboho on the same day, 17 May
2021 at 14:50, Delportshoop, after
the body of the deceased was discovered:
“
Marlyn
Daisy Plaatjies, state under oath in English.
1.
I am a mature woman 29 years old with ID No …………..
[3]
,
residing at house no 2[...] S[...], Delportshoop, contact no. 0[...].
2.
On Saturday 2021-05-15 at about 19:00 in the evening I was at my
place. My
brother Jacob Ratel came with his girlfriend R[...]
and another lady Tollies. R[...] was having blood on her mouth,
they
started arguing, R[...] and Jakob I intervened and told them to
stop. Jacob and Tollies then left my place, and R[...] also
left afterwards.
3.
Again, later Saturday evening at about 22:00, Jacob came back and
told me that
he assaulted R[...], he kicked and trampled her on her
head. I told him I am going to the toilet, he must wait for me
I will
take him half way. Till at his place or where they stay
with R[...]. I stood at the corner as he was knocking at the door.
I
then left and went back to my place.
4.
On Sunday morning at about 02:00 I received a call from my mother
Gladys Ratel
and told me that Jacob is full of blood on his tekkies
and I said to my mother ‘no mom, is it not as I left him being
just
fine.’ I then sent my boy (Chaid) to look for
R[...]. He came back and told me that he knocked but no one
responded.
I then in the afternoon went to R[...]’s place
to check on her.
5.
On my arrival at R[...]’s place the door was not locked. I
started
to leave and getting [strange] feelings, and just turned
away. On Monday 2021-05-17 at about 11:15 my mother Gladys
Ratel
called me and told me to check where R[...] is, when she asks
Jacob where R[...] is he is just crying and told her that he killed
R[...] and that he is going away and going to kill himself. So
he left.
6.
I then asked Mpho [Motabogi] the lady who is staying opposite me to
accompany
me to R[...]’s house. On our arrival at
R[...]’s place I stood outside and Mpho opened the door and put
her head
in to look. She screamed ‘R[...], R[...],’
with no response. She told me that R[...] is lying on her bed
and does not [seem] as if she is breathing. We then left to
look for [an] elderly woman/mother to come and look for us to
make
sure. We then met aunt Matsotso. I asked her to come and
assist us. She came with us and entered the house
with Mpho as
I was standing outside. Mpho came out and after aunt Matsotso,
then Mpho told me that aunt Matsotso said that
R[...] is no more. I
then called the police.
7.
That is all I can declare.
8.
I know and understand the contents of the statement. I have no
objection
in taking the prescribed oath. I consider the
prescribed oath as binding to my conscience.”
[36]
Daisy deliberately excluded material information in her oral
evidence. The following are
noteworthy:
36.1
She omitted the aspect that she left the accused knocking at the
deceased’s shack on Saturday
night.
36.2
She received a call from her mother at 02:00 in the morning alerting
her that the accused’s tekkies
were full of blood and that she
had asked her mother if it was not mud.
36.3
That she sent her late son at that time (02:00) after her mother’s
call to check whether the
deceased was at her shack and that he went
and reported that he had knocked on the door but that no one
responded.
36.4
On Sunday afternoon she went to the deceased’s place to check
on her and found the door unlocked.
She was afraid and had a
bad feeling resultantly causing her to leave without entering the
shack.
36.5
On Monday, 17 May 2021, her mother called her again at 11:15 asking
her to check on the deceased because
when she enquired about the
whereabouts of the deceased from the accused he just cried
continuously without giving any response.
36.6
In the statement it is written that she asked Mpho to accompany her
whereas in her testimony she testified
that Mpho volunteered to go
with her which is not consistent with Mpho’s testimony.
36.7
Although she admits that she furnished her statement to Sgt Khoboho,
she denied being at the deceased’s
place on Sunday.
36.8
During cross-examination she said although she and her mother speak
regularly on the phone she denied
any knowledge pertaining to the
accused’s tekkies that were soaked in blood. She further
denied that her mother had
called her at 02:00 in the morning.
36.9
She denied that her late son went to check on the deceased contending
that she said she wanted to send
her son to the deceased’s
place on Monday and not that she sent him there.
36.10
It was put to Daisy that when the accused returned to her home at
22:00 he informed her that he had kicked
and trampled on the
deceased’s head. She was adamant that the kicking and
trampling happened around 19:00 at her home.
The State put it
to her that 22:00 was sensible considering that her mother called her
at 23:47, but she denied this.
36.11
When confronted with the part of her statement where she said Mpho
went to the deceased’s bedroom
she vehemently denied that Mpho
had entered the bedroom.
36.12
She does not know why Khoboho wrote in her statement that her mother
had phoned and told her that her brother
came home with blood on his
shoes.
36.13
Daisy said Tollies left her children at her (Daisy’s) home
whereas the evidence was that the children
were fetched from their
father’s place. Even the accused was placed at the
father’s place, not only by Tollies
but also by Sgt Khoboho who
confirmed that there was a charge laid against the accused after the
children were fetched.
[37]
This is what Ms Gladys Ratel deposed to before Sgt Khoboho in her
first statement signed on 18/05/2021
at 16:10
“
Gladys
Ratel verklaar onder eed in Afrikaans:
1.
Ek is ‘n volwasse vrou met 56 jaar oud, woonagtig te 1[...]
I[...], Delportshoop.
Werkloos en geen kontak nommer.
2.
Op Sondag 2021-05-16 om ongeveer 02:00 was ek by my huis en geslaap.
Toe
kom klop Jacob by die deur en ek het vir hom oop gaan maak. Hy
het in gegaan en toe vra hy kos. Ek het hom gesê
dat daar
is nie kos nie, want ons het klaar in die middag geëet.
Toe antwoord hy en sê is reg my ma, toe gaan
slaap hy.
3.
Sondag het hy heel dag geslaap en nooit opgestaan nie. Hy het
eers Maandag
2021-05-17 opgestaan wat ek vir hom melk stuur. Die
Maandag 2021-05-17 het ek vir Jacob weer gevra wat het hy gemaak.
En toe antwoord hy en sê my ma sorry. Ek het so 11:00 vir
Daisy my meisie kind gebel en gesê sy moet gaan kyk
waar is
R[...], want Jacob huil net as ek hom vra. Sy het my terug
gebel en gesê my ma kom gou kom kyk wat hier aangaan.
Ek
het haar gesê ek voel nie reg nie, maar ek gaan opstaan.
4.
Wat ek daar kom toe sien ek die polisie was daar en toe maak hulle
die deur oop
en toe sê hulle ons moet kyk. Ek het
ingegaan en toe sien ek R[...] lê op haar bed en sy was vol
bloed in die
gesig. Toe gaan ek uit en gaan sit daar by Daisy
tot alles oor is.
5.
Van daar af toe kom ek terug huis toe.
6.
Ek is vertroud met die inhoud van die verklaring en bevestig dit.
Ek het
geen beswaar met die aflê van die eed nie. Ek
beskou die voorgeskrewe eed as bindend op my gewete.
“
[38]
Ms Ratel’s second statement, where she appended her signature G
Bedwell was obtained on
16 February 2022 at 12:10 in Delportshoop,
reads:
1.
“Gladys Ratel verklaar onder eed in Afrikaans.
2.
Ek is ‘n volwasse vrou van 56 jaar oud, woonagtig te I[...]
1[...], Delportshoop,
en werkloos.
3.
Ek het Jakob weer gevra omdat hy my nie geantwoord het nie, en ook
omdat hy gehuil
het toe ek hom vra waar is R[...].
4.
Hy het my nie geantwoord nie, dis waarom toe bel ek my meisiekind
Daisy om vir
R[...] te gaan kyk by die shanty.
5.
Dis al.
6.
Ek is vertroud met die inhoud van die verklaring en bevestig dit.
Ek het
geen beswaar met die aflê van die eed nie. Ek
beskou die voorgeskrewe eed as bindend op my gewete.”
[39]
Sgt Khoboho was later recalled and confirmed that he, and not the
unnamed Captain, obtained Ms
Ratel’s second statement. That
was done following the DPP query seeking clarity regarding Ms Ratel’s
questioning
of the accused for the second time regarding what he had
done to the deceased.
Hence her
response at para 3 of the statement “
Ek
het Jacob weer gevra omdat hy my nie geantwoord nie, en ook omdat hy
gehuil het toe ek hom vra waar is R[...].”
[40]
In Ms Ratel’s statement she indicated that the accused had
arrived home on Sunday morning
at 02:00 but testified that she did
not remember the time. She then said it could be around 24:00
to 02:00. She went
on to say he was asleep the entire day on
Sunday and only woke up on Monday morning, 17 May 2021, when she sent
him to buy milk.
He then said to her: “
Mom, I am
sorry”.
Ms Ratel then called Daisy and asked her to
look for R[...] because Jacob is continuously crying when she
enquired from him
what he had done. Daisy then called her back
and said “
Mom, quickly come and have a look what is
happening here.”
Ms Ratel denied mentioning that to
Sgt Khoboho and said she only told him about the milk. She also
denied telling Sgt Khoboho
that the accused had apologised when she
asked him what he had done. She was shown the second statement
taken on 16 February
2022 by Sgt Khoboho where she appended her
signature, G Bedwell. She wanted to create the impression that
the second statement
was not taken by Sgt Khoboho but by an unnamed
Captain. She confirmed giving the second statement at her home.
She
also confirmed her signature. It was put to her that
her statement explains the accused’s behaviour on that Saturday
evening and early Sunday morning when he came to her crying with
bloodied shoes not long after he had told his sister that he had
kicked and trampled on the deceased’s head. She refuted
the averment imputed to her that the accused came home with
blood-stained shoes. Ms Ratel cannot explain why Daisy would
tell the police that her mother called her at 02:00 telling
her about
the accused’s blood-stained shoes if she had not told her so.
She further denied telling Daisy that Jacob
had confessed to
killing the deceased.
[41]
During cross-examination by Mr Biyela, the accused’s version
was put to Ms Ratel that the
accused never saw his mother at all on
Sunday and yet she said she woke him up on Sunday morning to fix her
stove. It was
further put to her that the accused said she sent
him to buy milk and to fix the stove on Monday morning. She was
adamant
that he fixed the stove on Sunday morning. She does not
know where he was the entire day on Monday. It was also put
to
her that she is suffering from a mental condition. She agreed
that she has been suffering from depression for the past
fifteen
years but that it was under control and well managed.
[42]
Sgt Khoboho is attached to the detective unit at Delportshoop with 16
years’ experience
as a member of the SAPS of which 12 years
were as an investigating officer (detective). He was assigned
to investigate this
case. He attended the scene and met with
W/O Hawkins, Sgt Moreotsenye and Sgt Bartnes. His testimony
regarding how
they found the body and the injuries materially
corroborates what was said by Sgt Moreotsenye and Bartnes. He
further testified
that he spoke to Daisy who confirmed to him that
she was the one who had called the police. Daisy explained to
him about
the interaction at her place on Saturday when the accused,
the deceased and Tollies were there. A fight ensued between the
accused and the deceased resulting in the deceased bleeding from her
mouth. She reprimanded them whereafter the accused left
with
Tollies. The deceased left later and went to her place.
[43]
Sgt Khoboho testified that Daisy further informed him that her mother
contacted her telephonically
around 02:00 on Sunday morning
requesting her to check where the deceased was because the accused
had arrived home with bloodstained
tekkies. She said that she
told her mother it was late and she was scared to leave her house at
that time. Her mother
called again around 11:00 in the morning
and repeated her request. It is then that she called her
neighbour, Mpho Motabogi,
to accompany her to the deceased’s
place. Daisy told Sgt Khoboho that she let Mpho enter the shack
alone and on her
return, they went to call her aunt to confirm what
Mpho had told her. She then telephoned the police and reported
the matter.
[44]
Sgt Khoboho was present when Sgt Diphephenyane removed the blanket
from the deceased and took
photographs of the scene and the body. He
observed the injuries on the deceased’s naked body. He
also confirms
the bloodstains on the bed as well as the carpet next
to the bed. They found a cigarette butt which was also
collected for
forensic purposes. All the exhibits were
collected and sent to the forensic laboratory for testing. Sgt
Khoboho testified
on the basis of a report compiled by Lieutenant
Colonel Regina Cecilia Janse Van Rensburg, Chief Forensic Analyst and
Reporting
Officer. No DNA was obtained from either the plank
(PA4003889447), the cloth (PA6003951802) or the underwear
(PA6003951882).
Not enough DNA (blood) was obtained from the
pair of jeans (PA5002745165). The cigarette butt had the
accused’s
DNA. A female DNA (blood) result was obtained
from cloth (PA6003951803); Sheet [blood] (PA4004385315); and jacket
(PA5002745166).
[45]
Sgt Khoboho obtained Daisy’s statement at the scene. Daisy
told him that her mother
told her that the accused had informed her
that he had killed the deceased and was going to kill himself. At
the police station,
Sgt Moreotsenye, in Sgt Khoboho’s presence,
read the accused rights to him before detaining him. It was
only then that
he was arrested and not earlier as insinuated by Ms
Ratel.
[46]
Sgt Khoboho followed up on the information furnished by Daisy by
making an application in terms
of s 205 of the CPA to obtain data
analyses from the cellphones. He received the cellphone records
analysed by Captain Conradie.
The records show that cellphone
numbers: 0[...] and 0[...] were in contact. Daisy’s cell
number is 0[...] and
her mother’s, Gladys Ratel, is 0[...]. He
went further to establish that her mother’s phone was not in
her name
but in that of Elizabeth Vos, who had passed on. Vos
was her husband’s sister. Gladys Ratel gave the cellphone
number to the investigating officer as hers.
[47]
Sgt Khoboho also followed up on the information furnished by Daisy
regarding the report made
to her by her mother regarding the
accused’s bloodstained tekkies. He went to visit the
mother at her home and she
disclaimed any knowledge thereof. After
he opposed the bail application by the accused the attitude of Daisy
and her mother
changed towards him and he received no cooperation
from them. They refused to consult with the State Advocate and
further
refused to attend court.
Count 2 and 3: Assault
GBH – 08 September 2017
[48]
The State led the evidence of the complainant, Ms J[...] A[...]. She
is 32 years old, of
miniature stature, and soft-spoken. She is
unemployed and studied up to Grade 9. She and the accused were
in a love
relationship for seven years, from which two children were
born. On 08 September 2017 she was in the company of N[...]
A[...],
K[...] S[...], G[...] S[...] and W[...] C[...] at a tavern.
The accused arrived and used vulgar language against her. Her
cousins reprimanded him and he left. He returned shortly
thereafter and continued with the insults. He choked her by
putting his arm tightly around her neck whilst standing behind her.
She was seated and screamed. Her cousins intervened
and
he left.
[49]
As the complainant and her cousins were walking home, the accused
grabbed the complainant from
behind around her neck and stabbed her
once with a screwdriver just below her temple. Her cousins
intervened once more and
he left. She sustained an open wound
showing the court a 1cm healed scar on the right temporal area. She
did not receive
medical treatment. She did not report
immediately because she was under the influence of liquor. She
and her cousins
had shared five 750ml of beer. She subsequently
withdrew the charges under pressure from the accused. The
accused and
the deceased were cohabiting at the time.
[50]
W[...] C[...] is 36 years old and went to school up to Standard 8.
The complainant is his
cousin. He knows the accused and
is also aware of their relationship. When asked to describe the
relationship between
the accused and the complainant he said that
they fought every now and then. He testified that the accused
called the complainant
to him but she refused and told him to stay
away from her. He then went to where they were seated and
throttled her in the
manner of a vice-grip. W[...] demonstrated
to the court. They intervened. The accused swore at the
complainant
and left. They remained consuming alcohol. As
they were walking the accused approached them from behind and grabbed
the complainant. She screamed that he had stabbed her. He
swore at her again and left. They did not witness the
stabbing
because they were walking in front of her but noticed that he was
right next to her. When they reprimanded the accused
he
insulted them. He then noticed that the complainant was
bleeding on the side of her face and on her back.
[51]
Sgt Moreotsenye was on duty on 11 September 2017 when the complainant
laid a complaint at the
police station. He completed an injury
statement at 11:55 noting the visible fresh injuries on the
complainant. This
statement is completed as backup in case the
complainant did not receive medical treatment, where a J88 is
completed by a medical
doctor. He noted a stab wound on the
right side of the face. The complainant informed Sgt
Moreotsenye of a wound on
her back but their Standing Orders do not
allow a male inspecting a female on concealed parts of her body.
There was no female
officer on duty.
Count 4: Assault GBH –
14 April 2018
[52]
J[...] testified that on the night of 14 April 2018 she was walking
to a specific place in Heidelaan
Street, in Delportshoop. The
accused then pounced on her and just started hitting her with
clenched fists and kicked her
with booted feet indiscriminately. It
was just the two of them when the incident occurred. She
reported the incident
to the police following day. She
sustained what is colloquially known as “
blue eyes”
and her face was swollen. Her body ached. She could
not remember whether she received medical treatment. After
she
opened a case against him he acknowledged the assault and undertook
not do it again. When the incident took place, she
had returned
to her parents’ home but two weeks later resumed her
cohabitation with the accused. She therefore withdrew
the
charges against him because he is the father of her children. Their
relationship was mainly violent and the beatings
led to her decision
to end it. It boggles the mind why partners, mainly women,
would stay in abusive relationships which
more often than not lead to
fatal consequences.
[53]
Dr Kumakamba Ndjondo holds an MBChB degree from Lubumbashi University
in the Democratic Republic
of Congo (DRC). He has been
stationed at the ZK Matthews District Hospital in Barkley West since
01 September 2014. He
completed a J88 form on 17 April 2018 at
10:42 after examining the complainant. She reported to the
doctor that she was assaulted
on 14 April 2018 around 22:00.
According to the doctor, the medical examination happened on Sunday,
15 April 2018, but the
J88 was only completed on 17 April 2018. The
doctor’s findings as recorded on the J88: Right red eye
subconjunctival
haemorrhage (i.e the white part of the eye was red);
haematoma of the peri-orbital area (black eye) – swollen;
swollen right
cheek; multiple bruises and superficial cuts on the
back. She was treated and discharged. The J88 was handed up and
accepted
provisionally as Exh “A” but after its author,
Dr Njondo testified, it was formally admitted.
The
State closed its case
[54]
The accused testified in his defence and did not call any witnesses.
He denied choking
the complainant, J[...] A[...], in Count 2, on 08
September 2017. He stated that he does not know anything about
the incident.
He also denies knowledge of the assault in Count
3 that he stabbed and throttled the complainant. In as far as
Count 4 is
concerned, he further denied hitting the complainant with
clenched fists and kicking her with booted feet. He admits that
he fathered two of her children. They were in a relationship
for ten years. He was never arrested for assaulting the
complainant and did not unduly influence her to withdraw the criminal
charges against him.
[55]
In as far as Count 1 of murder is concerned, he testified that he was
at work on Friday, 15 May
2021. After knocking off he went to
Madiks Tavern with the deceased where they consumed alcohol, a Black
Label 750ml beer.
They spent the night together at the
deceased’s shack. On Saturday morning they returned to
Madiks Tavern and
consumed beer. As they were hungry the
deceased went to her shack to prepare food while he remained at the
tavern. He
later followed her to establish the cause for the
delay. He found the deceased in the company of her sister and a
white tall
man.
[56]
He requested the man to buy beer but he said he did not have money.
The man and the deceased
went to his vehicle which was parked
in front of the deceased’s shack and the accused and the
deceased started arguing. He
took the suitcase containing his
clothes, threw it under a tree, poured diesel over it and set it
alight. He left for Tollies’
place vowing never to
return. He and Tollies went to Madiks Tavern and consumed
alcohol. The deceased arrived at the
tavern and an argument
ensued over her following him around. The deceased got
confrontational and he pushed her causing her
to fall. The
deceased, Tollies and the accused were evicted. He and Tollies
went to his sister, Daisy’s, place.
[57]
The deceased still followed them there. He told Daisy to ask
the deceased to stay away
from him because he had found her with
another man. The deceased became physical again and he pushed
her causing her to fall.
Daisy intervened. He and Tollies
returned to Madiks leaving the deceased at Daisy’s. They
drank until late
at night when the father of Tollies’ children,
whose details were not specified, arrived at Madiks. When the
man left
Tollies said she will quickly go with him because there was
something that she needed from him. The accused waited for some
time and went to ascertain the reason for Tollies’ extended
stay at the man’s shack. The lights were on and he
peeked
through the window and saw Tollies getting dressed. He punched
the glass and the window broke. A quarrel ensued
while Tollies
was still inside the shack. She emerged from the shack carrying
a knife. They all left the premises.
Tollies went to
fetch her children from Daisy’s house and went to her house.
Daisy walked the accused half-way
to his mother’s house
because she was told that Tollies was armed with a knife. The
accused put up overnight at his
mother’s house.
[58]
On Sunday the accused went to Tidimalo Location in Delportshoop and
later to Rooikoppie where
he consumed alcohol. He returned home
between 16:00 and 17:00 on Sunday afternoon and spent the night at
home. On Monday
morning his mother sent him to buy milk. He
in the process took two beers to Tollies’ place where he
dropped them off,
took the milk home and made tea for his mother. He
returned to Tollies’ place and consumed liquor with Tollies and
Bolla
(Rolene Visagie). Yvonne Gerts and her boyfriend
joined them later. The five of them shared about seven beers.
[59]
Mmeme told them about R[...]’s passing. He was
heartbroken. He was with Tollies
when he was confronted by Sgt
Khoboho who arrested him and took him to the police station. He
denies questioning or demanding
R50.00 from the deceased. He
further denies swearing after Mmeme reported R[...]’s passing
to them. He denies
that Tollies fetched the children from their
father and was adamant that they were left at Daisy’s place.
He further
denied that Tollies carried a child on her back and
also denied having pushed both against a fence. He disputes the
allegation
by her mother that he fixed her stove on Sunday or that he
had slept the whole day as she testified.
Analysis of the evidence
[60]
The proper approach in the analysis of the evidence which I follow is
pronounced by the Supreme
Court of Appeal in
S v Chabalala
2003
(1) SACR 134
(SCA) at para 15. See also
S v Trainor
2003 (1)
SACR 35
(SCA) 41b-c. It is further trite that where there are
contradictions between two witnesses and contradictions between the
versions of the same witness, a possibility is that the witness may
have erred either because of a defective recollection or because
of
dishonesty. Not every contradiction or deviation affects the
credibility of a witness. See
S v Mafaladiso
2003 (1) SACR 583
(SCA) at593e – 594h and
S v Mkohle
1990 (1) SACR 95
(A)
at 98f-h.
Count 2: Assault GBH
[61]
The accused confronted J[...] and demanded to speak to her but she
refused. She had no
business with him since they were no longer
in a love relationship. The complainant is corroborated by her
cousin W[...]
that the accused insulted her before he choked her.
This attack was clearly unprovoked. There is no question
of mistaken
identity. Their evidence is consistent and
probable. I did not gain any impression that it was fabricated.
They
are credible witnesses. The accused’s version
only comprises bare denials. It is common cause that he was on
the crime scene. I am persuaded that the State has made out its
case against the accused in respect of Count 2.
Count 3: Assault GBH
[62]
J[...] and her cousins were walking home when the accused reappeared.
He was armed and
stabbed J[...]. Her evidence in respect
of this count is not only supported by her cousin, W[...], but also
by Sgt Moreotsenye
who had completed the injury statement. Just
because the complainant had withdrawn the charges after being unduly
influenced
did not take away the criminal responsibility of the
accused. The commission of the offence did not disappear. It
is
a crime against the State. There was no justification for
the accused’s conduct. There is therefore no reason
why
the accused cannot be found guilty on this count either. His bare
denials did not assist him.
Count 4: Assault GBH
[63]
J[...] was a single witness in count 4 when the incident occurred and
the cautionary rule is
applicable. Section 208 of the CPA
stipulates that an accused person may be convicted of any offence on
the single evidence
of any competent witness. Her evidence is
corroborated by the objective evidence of the doctor. The
injuries are consistent
with being punched and kicked. It was
contended on behalf of the accused that because the complainant could
not recall having
gone to a doctor she was not truthful and she
further could not explain her memory loss. Dr Ndjondo explained
that alcohol
can cause temporary amnesia but the ARV medication,
depending on the type of medication taken, if for example efavirenz,
can affect
a person’s mental state. He did not take the
details of the patient’s medication. Taking cue from
Mafaladiso
and
Mkohle
this lapse, in my view, did not
affect her credibility. The accused only makes bare denials.
The complainant was not
sober but she recalls who her assailant was
and that she ultimately withdrew the charges not because he did not
assault her, but
because he is the father of her children.
[64]
I am mindful that the state bears the
onus
to prove its case
beyond reasonable doubt and that it is not for the accused to prove
his innocence. It became apparent during
his cross-examination
that he loathed her consumption of alcohol and concluded that the
consumption caused her to neglect her children.
It is clear
that when he met her late that night, intoxicated, his reaction was
to assault her. She withdrew the charges
after their talks
because they were still in a relationship and he is the father of her
children. I have no doubt in my mind
that the accused assaulted
J[...] on that day for no justifiable reason. It follows that
the State has proved its case against
the accused in respect of Count
4.
Count 1: murder
The
alibi defence
[65]
The accused denied being present at the deceased’s shack and
having perpetrated the murder.
After his arrest by Sgt
Moreotsenye and having been warned of his rights he was informed of
the murder that was committed
and that he is a suspect. He
failed to proffer any explanation and even refused to sign form 14A
completed Sgt Moreotsenye.
[66]
Galgut AJA in
S v Shabalalala
1986 (4) SA 734
(AD) at 736B-D
held:
“
The
appellant's defence was an alibi. Hiemstra Suid-Afrikaanse
`Strafproses 3rd ed at 218 (Notes). It is trite law that,
where
an alibi is raised, there is no burden on the accused to prove his
alibi. The onus rests on the State to prove his
alibi is false.
R v Biya 1952 (4) SA at 521D - E; R v Hlongwane 1959 (3) SA at 340 -
1; Hiemstra (op cit at 219); S v Nunu 1979
(1) PH H14.
It
was proved beyond any reasonable doubt that the appellant's alibi was
false. 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.”
[67]
In
S v Thebus and Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) at 67 and 68
Moseneke J, then, reasoned:
“
[67]
First, the late disclosure of an alibi is one of the factors to be
taken into account in evaluating
the evidence of the alibi. Standing
alone it does not justify an inference of guilt. Secondly, it
is a factor which
is only taken into consideration in determining the
weight to be placed on the evidence of the alibi. The absence
of a prior
warning is, in my view, a matter which goes to the weight
to be placed upon the late disclosure of an alibi. Where a
prior
warning that the late disclosure of an alibi may be taken into
consideration is given, this may well justify greater weight being
placed on the alibi than would be the case where there was no prior
warning. In all the circumstances, and in particular,
having
regard to the limited use to which the late disclosure of the alibi
is put, I am satisfied that the rule is justifiable
under s 36(1).
[68]
The failure to disclose an alibi timeously is therefore not a neutral
factor. It may have
consequences and can legitimately be taken
into account in evaluating the evidence as a whole. In deciding
what, if any,
those consequences are, it is relevant to have regard
to the evidence of the accused, taken together with any explanation
offered
by her or him for failing to disclose the alibi timeously
within the factual context of the evidence as a whole.”
[68]
The accused failed to disclose his alibi outright when confronted
about the murder of the deceased.
His claim to have been
elsewhere when the deceased was murdered is unsubstantiated. The
following is not only uncontroverted
but is also persuasive:
68.1
Daisy’s statement that she walked the accused half-way to the
deceased’s shack and stood
at the corner of the premises while
he knocked at the deceased’ door on Saturday night;
68.2
The accused went to his mother’s home in the early hours of
Sunday with blood-stained shoes;
68.3
The accused confessed to Rolene Visagie that he caused the death of
the deceased and said so freely
and voluntarily, not influenced or
coerced by anybody and not promised anything in return; and
68.4
The frequency of the telephone calls between the accused’s
mother and sister around the time
of the murder and the persistence
by the mother for Daisy to check on the deceased as she was perturbed
by the accused’s
behaviour.
I
find the accused’s alibi vague, truncated and false. It
was also disclosed late in the proceedings. Having rejected
the
alibi defence of the accused does not, however, bring the matter to
an end. The State still bears the onus of proving
its case
beyond reasonable doubt.
[69]
There is no direct eye-witness account in the murder count. It is for
that reason that a conspectus
of all the evidence is required. In
S
v Reddy and Others
1996 (2) SACR (A) at 8c -g Zulman AJA
pronounced:
“
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.'”
The extra-curial
statements
[70]
The effect of having the oral evidence and extra-curial statement is
that the court now has two
conflicting versions given by one
witness. I am prepared to accept that Daisy and her mother made
the statements to Sgt Khoboho
and were probably telling the truth
when they did so. They are trying to distance themselves from
the contents of their statements.
I, however, find that Sgt
Khoboho was an honest, credible and reliable witness when he
testified. I have no reason
to doubt his evidence. The
central question is whether the extra-curial statements made by Daisy
and her mother, to the investigating
officer, Sgt Khoboho, the
contents of which were disavowed when they testified, should be
admitted as evidence.
[71]
Whether to admit the statements by Daisy and her mother the correct
starting point is
s 3(1)(c)
of the
Law of Evidence Amendment Act 45
of 1988
which provides:
“
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence
at criminal or civil proceedings, unless-
…
(c)
the court, having regard to-
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv) the
probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such
evidence depends;
(vi) any
prejudice to a party which the admission of such evidence might
entail; and
(vii) any
other factor which should in the opinion of the court be taken into
account, is of the opinion that such evidence
should be admitted in
the interests of justice.”
[72]
The statements of Daisy and her mother are hearsay evidence. Cameron
JA in
S v Ndhlovu and Others
2002 (2) SACR 325
(SCA)
considered
the provision of
s 3
and at para 31 held that:
…“
The
probative value of the hearsay evidence depends primarily on the
credibility of the declarant at the time of the declaration
,
and the central question is whether the interests of justice require
that the prior statement be admitted notwithstanding its
later
disavowal or non-affirmation. And though the witness's
disavowal of or inability to affirm the prior statement may
bear on
the question of the statement's reliability at the time it was made,
it does not change the nature of the essential inquiry,
which is
whether the interests of justice require its admission.”
(emphasis
added)
[73]
In
Makhala and Another v The State
2022 (1) SACR 485
(SCA)
,
Meyer AJA, writing for the majority, having visited the SCA’s
previous cases in
S v
Rathumbu
2012 (2) SACR 219
(SCA)
,
S v Mamushe
[2007] 4 All SA 972
(SCA) and
S v Mathonsi
2012 (1) SACR 335 (KZP), emphasised at paras 117 and 118:
“
[117]
However, the common-law principle, that a state witness's extracurial
inconsistent statement may be used solely
for the purposes of
impeaching him or her and may not be tendered into court as proof of
the facts contained therein, no longer
finds application in our law.
In this country we have our definition of hearsay evidence and
legislative instrument prescribing
the factors or safeguards that the
court must consider in deciding whether the extracurial inconsistent
hearsay statement of a
state witness should be admitted as evidence
in the interests of justice. Our courts, therefore, are not
permitted to substitute
our statutory prescripts with common-law
principles or statutory provisions of foreign jurisdictions in
deciding whether such hearsay
should be admitted as evidence.
Therefore, the decision in Mathonsi is wrong.
[118]
I have mentioned that our Hearsay Act allows for a more flexible
discretionary approach to the admissibility
of hearsay evidence than
the common law did. In deciding whether hearsay should be
admitted in the interests of justice,
the court is not limited to the
factors listed in s 3(1)(c)(i) – (vi), but empowered in terms
of s 3(1)(c)(vii) to have regard
to 'any other factor which should in
the opinion of the court be taken into account'. If, in
deciding whether hearsay should
be admitted in the interests of
justice in terms of s 3(1)(c) of the Hearsay Act in a given case, the
trial court is of the opinion
that a factor taken into account in
another jurisdiction when admitting hearsay into evidence should
additionally be taken into
account, it is by virtue of s 3(1)(c)(vii)
empowered to do so.”
[74]
Following the approach as set out in
S v Ndlovu and Others
2002 (2) SACR 325
(SCA) para 17 and considering all the circumstances
under which the statements were made, I find that they were made
voluntarily
and in a language Daisy and her mother were both
conversant in. Sgt Khoboho posed questions to Daisy and wrote
her responses
down. They conversed in Setswana and the
statement was written in English and read back to her before she
appended her signature.
She neither experienced any problems in
the communication nor felt any pressure from Sgt Khoboho or anyone
else to give the
statement. In respect of Ms Ratel, they
conversed in Setswana and the statements were written in Afrikaans.
Sgt Khoboho
was writing as she was speaking to him. She
says he did not read the statements back to her before she appended
her signature
but confirms signing both statements which were
obtained at her home.
[75]
Daisy and her mother were extensively cross-examined on the contents
of the statements which
were admitted into evidence. They both
recanted the aspects which implicated the accused in the count of
murder. Evidently,
they were under no pressure to furnish such
statements and there was no language barrier between them and the
investigating officer.
It is plain, in my view, that the three
statements are pivotal to the State’s case. Taking cue
from
Makhala
the contents of these statements is admitted
against the accused in the interests of justice by virtue of the
provisions of
s 3(1)(c)
of the
Law of Evidence Amendment Act 45 of
1988
.
[76]
The deceased spent some time with her sister, S[...] B[...] v[...]
R[...], cleaning her shack
on Saturday morning and when they parted
around 21:00, she was still alive. What I perceive as
farfetched is the contention
by the accused that he found the
deceased and his sister in the company of the white man and he burnt
his own clothes
contained in a suitcase as a result thereof.
According to S[...] he went in and out of the bedroom twice
carrying the deceased’s
clothes and set them alight. He
could not have carried one suitcase in and out of the shack twice.
In any event, if
he was angered by the deceased’s
betrayal with the white man, why would he burn his own clothes
instead of just taking them
away?
[77]
Tollies told him that, while he had blacked-out as a result of
over-indulgence in alcohol on
Saturday, the deceased had searched him
and took money from his pocket. This is a more probable reason
to stir up an argument
because they argued about money before the
clothes were burnt as testified to by the deceased’s sister.
It becomes
even more probable to agitate him towards burning
her clothes since she was not returning his money.
[78]
Despite having pushed each other at Madiks and further at Daisy’s
residence on Saturday
evening, the only visible injury that Daisy
testified to was the deceased bleeding from her mouth. It is
common cause that
the accused left with Tollies and the deceased went
to her shack that evening. Interestingly, from that early
evening testimony
we now get to around 22:00 to 23:00 when the
accused informed Daisy that he had kicked and trampled on the
deceased’s head.
This piece of information, coupled with
the fact that Daisy walked him half-way towards the direction of the
deceased’s
shack, stopping at the corner of the deceased’s
premises when the accused stood knocking at the deceased’s
shack puts
the accused at the deceased’s shack from 23:00 and
beyond. I reject the accused’s concocted version that
Daisy
walked him half-way towards his mother’s home as
untenable, farfetched and false.
[79]
The accused went home after being at the deceased’s shack on
Saturday night. This
then links with the evidence from the
written statement of Daisy that her mother had called in a panic
informing her that the accused
had arrived home in blood-stained
tekkies and was just crying when she asked him about the whereabouts
of R[...]. She required
Daisy to check on the deceased. Absent
this trigger, why would the mother persist with the request for Daisy
to check on
the deceased? It is reasonable to infer that the
telephonic communication between Daisy and her mother was imputed by
the
condition in which his mother had observed him when he arrived
home. I am satisfied in the conclusion that Daisy and her
mother had become acutely aware of the eventuality for which their
mother needed confirmation. It is plain that they were
adapting
and changing their versions to exculpate the accused. The truth
that Daisy and her mother told was to Sgt Khoboho
when they furnished
their statements.
[80]
It boggles the mind why the accused’s mother did not speak to
the deceased herself if she
wanted the deceased’s help with the
washing of her blankets. Daisy’s blatant refusal to enter
the deceased’s
shack is also not an innocent act. She
refused to enter when she first went with Mpho and asked Mpho to
enter alone, and
again when they returned with her aunt, and further
when the police invited her to enter with them. It shows that
they had
an interest or fear of what was to be discovered at the
deceased’s shack, something they failed to explain. The
number
of calls made by Daisy and her mother specifically between
23:00 and 02:00 are pieces of a jigsaw puzzle fitting so coherently
that the accused cannot break it apart. There was no reason for
those calls unless there was, to their knowledge, a dead body
waiting
to be discovered once the deceased’s shack was visited. The
irresistible inference is that they knew, or expected,
that the
deceased had been killed by the accused.
[81]
During their oral evidence Daisy and her mother tried, especially the
mother, to modify their
testimony but it became even more apparent
that it was a fabrication. A glaring example is one where she
says the accused
repaired her stove on Sunday and later spent the
entire day sleeping, which was refuted by the accused himself. It
is not
disputed that the accused did not spend Saturday night at
Tollies’ because they had parted ways on a bitter note. The
accused only went to his mother’s home after 23:00 which was
followed by her mother’s call to Daisy at 23:47. He
also
did not spend Sunday night at Tollies’ because Tollies
testified that she did not see him for the entire day on Sunday
and
he also testified that he went to a different location. The
accused only went to Tollies in the early hours of Monday
morning
around 02:00am asking for some cigarettes from her and left. When
he knocked at Tollies’ door Rolene heard.
The accused
returned later that morning around 06:00 or 07:00 to Tollies’
with beers which they consumed together until
they received the news.
[82]
The utterances made by the accused immediately after Mmeme informed
them of the passing of the
deceased was testified to by Rolene
Visagie and Yvonne Gerts. They may not have repeated his exact
words or said it in the
same way but they essentially told the court
what he said when he said in Afrikaans “
nou het ek k*k
gemaak” or “watse k*k het ek nou aangevang”?
These
differences are, in my view, not material. At the gate he said
to Rolene Visagie “
Bolle,
I killed the lady”.
If indeed he had done nothing to the deceased it escapes me
why he was displaying a reaction only displayed as a consequence
of a
guilty mind. This evidence pointing towards the accused as the
perpetrator cannot be assailed. It is axiomatic
from the above
expression that Mmeme’s message could have come as a shock to
the accused because he was acutely aware that
he was the culprit.
The rest may have been.
[83]
The deceased and her sister were cleaning the shack on Saturday
morning. Despite the deceased
leaving, her sister continued
with and completed the cleaning of her shack. It must be borne
in mind that the accused had
already left after burning the
deceased’s clothes threatening not to set foot at her shack
again. If he indeed kept
his word, why was a cigarette butt
found by the forensic official with his matching DNA if he did not
return to the deceased’s
shack? This can only mean that
he returned to the deceased’s shack on Saturday night after her
sister had left. What
further boggles the mind is the lie that
the accused’s mother would have told the deceased that the
accused was arrested
when he had not been at that stage. There
was no record of the arrest in the OB register and the SAP14 register
as testified
to by Sgt Khoboho.
[84]
There is no doubt in my mind that the accused acted violently towards
the deceased. In
my view the only reasonable inference that is
consistent with the totality of all the proved facts and which
excludes any other
reasonable inference is that the accused killed
R[...] L[...] and had full knowledge of her death and that his
evidence that he
had no knowledge of the death was false beyond a
reasonable doubt. The accused’s culpability for the
murder of the
deceased was established beyond any reasonable doubt.
[85]
On a conspectus of the evidence in this case I am satisfied that the
State has proved its case
beyond reasonable doubt and return the
following verdicts against the accused:
Count 1:
Murder r/w
s 51
(1) of the
Criminal Law Amendment Act 105 of 1997
: I
find the accused guilty of Murder with
dolus directus
as the
form of intent.
Count 2:
Assault with intent to do grievous bodily harm: I find the accused
guilty as charged.
Count 3:
Assault with intent to do grievous bodily harm: I find the accused
guilty as charged.
Count 4:
Assault with intent to do grievous bodily harm: I find the accused
guilty as charged.
MC MAMOSEBO
JUDGE OF THE HIGH
COURT
NORTHERN CAPE DIVISION
For the State
Adv. A Stellenberg &
Adv. S Sauls
Instructed by:
The Director Public
Prosecutions
For the Accused:
Adv. K Biyela
Instructed by:
Justice Centre,
Kimberley
[1]
Commentary
on the
Criminal Procedure Act, Du
Toit et al, Volume 1, Juta
[Service 69, 2022] 23 - 17
[2]
Meyer’s
Trustee v Malan
1911 TPD 559
at 561
[3]
Full
ID No not included to protect her security