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IN THE HIGH COURT OF SOUTH AFRICA BOPHUTHATSWANA PROVINCIAL DIVISION CC 98/07 In the matter between: THE STATE and BERNARD MOGOBOYA CRIMINAL MATTER GURA J DATE OF HEARING : 25 February 2008 DATE OF JUDGMENT : 14 April 2008 COUNSEL FOR THE STATE : Adv. M. Mokone COUNSEL FOR THE ACCUSED : Adv. B. Mamba JUDGMENT Introduction [1] The accused appears before Court represented by Mr Mamba. He stands trial facing eight charges, inter alia: 2 COUNT 1 : MURDER COUNT 2 : KIDNAPPING COUNT 3 : KIDNAPPING COUNT 4 : RAPE COUNT 5 : RAPE COUNT 6 : POSSESSION OF FIREARM: CONTRAVENTION OF SECTION 3 COUNT 7 : ACT 60 OF 2000 POSSESSION OF AMMUNITION: CONTRAVENTION OF SECTION 9 ACT 60 OF 2000 COUNT 8 : POINTING OF FIREARM: CONTRAVENTION OF SECTION 120 (6) (a) ACT 60 OF 2000 [2] He pleaded not guilty on all the counts and he elected not to disclose the basis of his defence. [3] Formal admissions in terms of Section 220 of the Criminal Procedure Act were then handed in as Exhibits A to D. These admissions encompass the identity of the deceases, his date as well as the cause of death, that the body sustained no further injuries up to the time of the post mortem examination, and, the post mortem report. The photo album of the deceased as well as the scene of crime, and a report in terms of Section 212 also formed part of the admissions. [4] The first witness for the State was Inspector Kupane. He testified to the effect that on 24 September 2005, the deceased came to the police station to lay a charge of rape against the accused. He took down her statement. (This statement was provisionally admitted in terms of Section 3 of the Law of Evidence Amendment Act, No. 45 of 1988). According to Inspector Kupane, the deceased clothing was in disarray they were dirty on her back. Her face was slightly swollen. 2 3 [5] She led the police to a place in the bush at Lefatlheng. Thereat she pointed out to them the scene of crime. They inspected it. It was a sandy place and it was clear to them that some people had been there, the soil had signs of people who slept on it. There were two used toilet papers which the deceased alleged she used to wipe off her tears. [6] Thereafter she was taken to the hospital where the doctor examined her. A medical report was then completed during that examination. [7] The evidence of this witness covers counts 3, 4 and 5. According to him, on the 5 April 2006, the case against the accused was supposed to be heard in the magistrate s court, i.e. the case of raping and kidnapping the complainant, (who is now deceased). The deceased died on that day. Inspector Kupane is the only witness in respect of counts 3,4 and 5. statement, later in this judgment. More about the admissibility of the deceased s [8] I now proceed to summarise evidence in respect of counts 1, 2, 6 and 8. First, the evidence of the deceased s mother, Mrs Suzan Mothiba. The accused and the deceased were lovers. Out of this love relationship, a child was born. In September 2005 their affair ended subsequent to some misunderstanding between them. It was at the deceased insistence that the love affair should terminate. This happened at Mrs Mothiba s home because she even spoke to the two. Whereas, the deceased indicated that she did not want to continue their love affair, the accused told them that he would continue to do what he wanted to do with the deceased. The message from him was loud and clear that he still regarded the deceased as his lover despite her objection. [9] Subsequent to that, the accused had a tendency of kidnapping the deceased and 3 taking her out for the night. Whenever he had taken her out for the night in this way, she would switch off her cellphone. 4 [10] In the evening of 23 December 2005, the deceased just vanished without a word, from her parental home. Her phone was off all night. In the morning of 24 December 2005 her parents went to look for her at the accused parental home. When they arrived there, they were told that the couple had gone to the deceased s place. [11] The deceased s parents went back home but could not find them there. Later the deceased arrived, being alone. Her manner of clothing was in disarray she was untidy and she wanted to change her clothing. The appearance of her clothing was that of a person who had been involved in a fight. Mrs Mothiba asked her daughter what was the problem but she started to cry. She asked her mother to allow her to wash her body and to put on clean clothes. Mrs Mothiba refused to allow her to wash or put on clean clothes. Previously, the accused kidnapped the deceased, when she went to the police station to report a case of rape against him, she had already washed her body. The police were not happy with her cleanliness and they advised her that in future, if she is raped, she should never wash until she had been examined by the doctor. Back to the morning of 24 December 2005, Mrs Mothiba then asked her daughter if the accused had sexual intercourse with her again. She confirmed it. She ordered her (deceased) to go to the police. She left for the police station but Mrs Mothiba did not go with her. [12] About three months later, on 5 April 2006, it was the date of hearing of the case of rape and Kidnapping against the accused. The complainant in that case was the deceased (who was still alive). Around 07h00 on that day, Mrs Mothiba opened her house door only to find that her daughter, Rose, was crying. Rose is the younger sister to the deceased. She could not tell her mother what was the problem. She 4 (Mrs Mothiba) proceeded to the deceased s bedroom. This is what she found: 5 [13] The deceased was standing in her bedroom, facing the door, having in her hands, a night pot with urine. She was silent. At the same time, the accused was standing at the threshold of the deceased s bedroom door, facing her; also silent. In fact, the accused was standing in front of her. Mrs Mothiba then told the deceased that it was better for them to phone the police, because the accused was interdicted before to enter the yard. [14] Here are the particulars of the said interdict. After their affair terminated in September 2005, the accused kept on pestering the deceased and coming to her parental home. She reported him to the Magistrate s office Temba. A protection order was then issued against him which prevented him from entering the Mothiba residence. It was served on him by the deceased s father. The second protection order against the accused was issued, again by the Magistrate Temba, a day before her death i.e. 4 April Mrs Mothiba is not certain whether the second injunction was ever served on the accused. [15] On 5 April 2006, as they were busy phoning the police, the accused called her (deceased) However, she was afraid to go to him. Subsequently, they went through the gate, the deceased leading the way and the accused at her rear. The deceased did not even bid her sister and mother goodbye. At that stage, Mrs Mothiba and Rose were busy phoning the police. When the police eventually arrived, they went along, looking for this couple. Mrs Mothiba was later called to a scene where she found her daughter lifeless, with a bullet wound on the head. [16] The following evidence emerged during cross examination. The deceased was born on 27 October On her arrival at home on 24 December 2005, amongst others, 5 the deceased told her mother that the accused had kidnapped her again, and kept her at his parental home for the night where he raped her. She stated that the accused was waiting for her somewhere so that they could go together. Ever since September 2005, Whenever the accused came to visit the deceased, he had a firearm but on 5 April 2006 Mrs Mothiba did not see any firearm. Mrs Mothiba even complained to accused s parents that he habitually comes to her house armed with a firearm. He used to waylay the deceased. He used to knock at her window at night. All this he did, despite that their affair had ended. She denied that this couple had agreed that they could go to court together on the 5 April 2006 the tension which prevailed between them that morning, negated any such suggestion. In any case, she testified, the deceased went to court, leaving a night pot containing urine still inside her bedroom. She was not properly dressed for court. She was clad in training leggings (Stofe pipe) and a T shirt and she left for court without washing herself. It was put to her that a shot went off accidentally, fatally hitting her. Her response was that in the past (prior to 5/4/06) the accused, on several occasions, had prophesied and told the deceased: I will kill you, and I will loose nothing. Apart from that, she testified, as the accused was in the police van immediately after the death of the deceased, he addressed Mrs Mothiba as follows: I am satisfied that I have killed your child. 6 [17] The next witness was Rose Mothiba. She testified as follows: In the morning of 5 April 2006, she was in the kitchen when her elder sister (the deceased) warmed water on the stove so that she could bath. The deceased then left the water on the stove and walked to her bedroom. Rose remained alone in the kitchen. Suddenly, she saw the accused at the threshold of the kitchen door. He pointed a firearm at her and ordered her to be quiet (by signalling with the left hand pointing finger put on the lips). She walked to her bedroom whilst the accused went to her sister s bedroom. [18] When her mother saw her (Rose) she sensed that there was danger in the air and she 6 walked to the deceased s bedroom. In the meantime, Rose was busy phoning the police. Her mother then rejoined her (Rose). The accused and the deceased then went out of the house. The deceased called Rose, but she did not go out to her as she was afraid of the accused. They left, at that stage the deceased had not yet bathed and her warm water on the stove remained in the kettle. Her clothes were in disarray. As far as she (Rose) knows, the love affair between the two had ended as at 5 April [19] Inspector Mohajane testified to the effect that on 5 April 2006, whilst he was driving to work around 07h00 he received a report about a man who had kidnapped a lady. He, together with Inspector Marutla drove to the Mothiba house. There were two other police vehicles infront of them, also speeding to that place. They found Mrs Mothiba on the street, near her house. The police then drove along looking for this couple. [20] Some 50 metres away from the accused s parental home, they found him and the deceased. She was sprawled on the ground, bleeding from her head and mouth, with a bullet entrance and exit wound on the head. She was still alive though she could not talk. The accused stood next to her and he had a firearm in his hand. He surrendered this firearm to Inspector Mohajane after he was so commanded. Its magazine was loaded with four bullets. The fifth bullet, was lying between the magazine and the chamber and it appeared that it got stuck there as it was facing downwards. There was an empty cartridge on the scene. When the ambulance arrived there, the deceased was certified dead. Inspector Marutla has corroborated the evidence of Inspector Mohajane. This evidence has not been challenged by the defence. [21] What follows is the version of the accused. On 23 December 2005 the deceased was still his lover. They had an appointment to meet that night. At 20h30, whilst he was at a corner near her place, he phoned her and she came out to meet him. They went 7 along together, first to his uncle s place and thereafter to his parental home. They never went to the bush and he never assaulted her. En route to his place that night, the deceased received a cell phone call from one Sipho. Previously, the accused had questioned her whether she was in love with this man (Sipho). She had denied it. On that night she still persisted that she was not in love with him. The accused advised her to complain to Sipho s wife about his advances. When she called Sipho, his phone was off. [22] They spent that night at his parental home peacefully. They did make love, with the deceased consent. [23] In the morning of the subsequent day, he took her to her parental home. On their way, she informed Sipho s wife telephonically about what her husband was doing to her. That conversation just stopped abruptly. The deceased then said she suspected that Sipho and his wife would attack her at her parental home, and that it was better for her to leave her home. She suggested that they had to elope to Marapyane where they would stay at the house of the deceased s granny. They had spent the Christmas holidays of 2004 at this house. They agreed that they would leave on that day. [24] He gave her his cell phone and kept hers. The reason for this is that hers had not airtime. She promised to call the accused as soon as she had packed her belongings. She phoned later saying that her parents had gone to his place to fetch their child. She promised to phone later. She did not. The deceased phoned her but the phone was off for the whole day. [25] On 5 April 2006 around 06h00 he received an SMS (please call me) from the deceased. He went to her place instead of phoning her because they had to go to court on that day. He found the deceased s eight year old child just in front of the house and both of them entered the kitchen. They found Rose inside the kitchen. He asked her where was her sister and she said in her bedroom. He went to her and 8 8 found that she was busy preparing her child s clothes. She told him that she had no money to travel to court. Her mother came there but the deceased asked her not to enter her bedroom because he was there. 9 [26] When she was ready for them to go, the accused asked her if she was going to court clad like that, a pair of leggings, a T shirt and a jacket. She confirmed that she would be going just like that. As they went out of the house, the deceased talked to Rose telling her where they had to take the child. Apparently it had to be taken to some traditional healer. Her mother then arrived. He denies that he had any firearm on that day, specifically at the deceased s place. [27] They went to his place to fetch his wallet and cell phone, as well as his friend s bag. His friend, who had slept at his place on a Tuesday, telephoned him that he should come along with his bag. This bag contained a firearm, a pair of trousers and a T shirt. On the way, he asked her why she did not withdraw the case against him because she knew that he never raped or kidnapped her. She said that she would not withdraw it because she wanted to get some rest from him. He told her that instead of going to prison on false allegations, he would rather commit suicide. [28] He took the firearm, out of the bag, cocked it and pointed it at his head. She jumped and grabbed the firearm. They struggled for its possession. A bullet went off, accidentally, hitting her. She collapsed. He denied that any warning letter or protection order was ever served on him. [29] It is trite law that the state bears the onus of establishing the guilt of the accused beyond reasonable doubt, and the converse is that the accused is entitled to be acquitted if there is a reasonable possibility that he might be innocent (R v Difford 1937 AD 370 at 373). 9 10 [30] Mrs Mothiba impressed the court as an honest witness. She first took the court to a meeting of September 2005 where the accused and the deceased s love affair hit the rocks. She testified that she was personally involved in that discussion and after her daughter declared that she had no more interest in the accused, she advised them to stay away from each other. I cannot imagine how Mrs Mothiba could fabricate this meeting and what was discussed there if at all there was never such a meeting. The court therefore accepts her version that the affair between the deceased and the accused ended at the deceased s choice, in September The court accepts further her testimony that the accused was not prepared to part ways with his lover and that he declared, by implication, that she would continue to be his lover, even if it meant against her will. [31] This attitude of the accused (in September 2005 s meeting) explains why the deceased later had to rush to the magistrate s office for some form of protection against the accused. She applied for such an injunction at least twice. First, a warning letter was issued against the accused and subsequently an order interdicting him from pestering the deceased or entering her place. For the purpose of this judgment, it is not important whether the accused was eventually served with any of these documents from court. But the fact that the deceased took pains to obtain these two injunctions from the magistrate s office goes a long way to show that there was some pressure which was brought to bear upon her by the accused. If this is not the case why would she take such pains. [32] The court is equally impressed by the reliability and honesty of Rose as a witness. She corroborated her mother on all material respects as regards the events of 5 April Why would Rose and her mother phone the police so desperately if the accused d visit there was a normal visit of a lover? Why would three police vehicles 10 speed to Mrs Mothiba s house if a man had just visited his lover? The court is convinced beyond reasonable doubt, that the accused came to that house that morning with a firearm, to take the deceased away by force to a destination known by him. Why would the deceased go to court without washing? She warmed the water for that purpose which she never used. Why would she go to court not properly dressed? (The accused, personally admits that she was not properly dressed). She left a night pot which contained urine in her bedroom to go to court. It this a normal behaviour of a lady who is excited about her lover s presence? When she left with the accused for court, she did not even bid farewell to her sister and mother. There is no doubt in my mind, that the air was heavy with tension. 11 [33] The accused s explanation as to how the deceased met her death is not reasonably possibly true, to say the least. In fact, it is a total fabrication. He admitted that on occasions prior to this date (5 April 2006) he asked the deceased to withdraw the case. She refused. Surely, on this fateful day, even before he asked her again to withdraw the case, he already knew what her attitude was. Two days before the death of the deceased, according to him, this firearm was at his place. He had enough time to commit suicide, in the absence of the deceased. [34] It is the finding of this court therefore, that the accused planned to kill the deceased, and he killed her intentionally, at a secluded place. Consequently, he cannot escape conviction on the following counts: 1 Murder; 2 Kidnapping (of 5/4/06); 6 Possession o a firearm and 7 possession of ammunition. [35] In count 8 the accused is charged with pointing a firearm at the deceased on 5 April 2006 (when she was still alive). I cannot understand the logic behind this charge. In order to shoot and kill a person the first step is to point her/him with a firearm. If you 11 eventually shoot and kill, the clear intention is intent to kill but not to point a firearm. So, clearly, in this case, the accused s intention was not to point a firearm but to kill, and he did accomplish that. No conviction can follow on this count 13 [36] I now turn to deal with counts 3, 4 and 5. These are the charges of kidnapping and two counts of rape which were allegedly committed on 23 December The only person who should have testified on these counts is deceased. The state then handed in a statement which was made by her to the police when she opened a case. The state asked this court to make at least two rulings: 1. That the statement was admissible as evidence in terms of Section 3 of the Law of Evidence Amendment Act, No. 45 of 1988, and
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