---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(Gauteng Local Division held at Johannesburg)

                                       Case number: SS 087/2017

In the matter between:

THE STATE                                                                        

And

MONAMODI LERATO                                                                    Accused

Neutral citation: S v Monamodi [SS87 /2017 GLDJHBHC 27 February 2018] 

Coram: Matthys AJ           

Heard: 2-20 February 2018

Delivered: 27 February 2018

ORDER

Having heard the evidence and arguments on record, the following order is made:

1.    The accused is convicted as follows :

Count 1: Guilty of Murder read with the provisions in section 51(1) of the Criminal Law Amendment Act 105 of 1997.

_____________

Matthys R

Acting Judge of the High Court

Gauteng Local Division (Johannesburg)

Date: 27 February 2018

REASONS FOR JUDGMENT

Matthys AJ:

A.     Introduction

[1]    Ms Lerato Monamodi (hereinafter referred to as the accused) aged 33 years is arraigned on one charge of Murder[1]. She is legally represented.[2]

[2] In the indictment the prosecution alleges that the accused is guilty of murder, in that she on or about the 5^th day of March 2017 at 29 Mona Street Glen Marais Kempton Park, wrongfully and intentionally killed, Refiloe Rebecca Monamodi an adult female (hereinafter referred to as the deceased). The accused pleaded not guilty to the charge stated. She preferred not to reveal the basis of her defence during the plea stage.  

[3] An overview of the probative material presented during the trial is the following: Real evidence exhibit 1 (photo album comprising photos of the crime scene and the accused person); Documentary evidence exhibit A (Declaration of death); exhibit B (post mortem report and chain statements in regards the corpse).   

[4] Viva Voce evidence by 10 persons was presented. The following witnesses testified:-  Jabulani Masingi[3];Isametse Ditshego[4] ;Molefasi Seleteng[5] ;Madeleine Pieterse ; Warner Pieterse[6] ;Eric Botma[7] ; Dr Sajida Medar[8] ; Maria Seale[9];Itumeleng Monamodi[10] ; Lerato Monamodi[11]

[5] The child witness Itumeleng testified with the assistance of an intermediary Ms Seale from an informal setting and through a close circuit camera as provided for in section 158 read with section 170A of the Criminal Procedure Act[12] . Having conducted a competency inquiry I found the child witness to be competent in that he was able to distinguish between truth and lies. He was accordingly admonished to only testify to the truth not lies.[13]      

B.    BACKGROUND

[6] Although the accused person was not agreeable to make any formal admissions at the inception of the trial, I think after having heard all the available evidence that it would be fair to state that the evidence giving rise to the charge of murder, is essentially common cause. It is therefore convenient for me to firstly state the salient unchallenged facts and thereafter to indicate how the state and the defence’s versions differ.

[7] It is not disputed that the deceased was referred to as Refiloe Rebecca Monamodi during her life time. She was 53 years of age and an Advocate by profession. The accused is the deceased only child. During 2002 the deceased was injured in a motor vehicle accident which caused her to become hemiplegic.[14]  She was subsequently unable to work and was afforded financial assistance by the Road Accident Fund[15].

[8] It is not in issue that the accused and her son Itumeleng resided with the deceased at the crime scene situated at 29 Mona Street Glen Marias in Kempton Park as depicted in photo 1 of exhibit 1. Due to the deceased’s disability, the accused took the role as caregiver to her mother and was registered as such, for claims with the RAF. It is not in issue that the accused experienced her task as her mother’s caregiver, as a taxing burden.

[9] Consequently she and her mother shared a strained relationship. In this vein the evidence is not disputed that the deceased on occasion called for assistance from the police and complained regarding alleged acts of domestic violence[16] by the accused towards her.

[10] Amongst other, one of the incidences testified about by Seargent Ditshego was when he met the deceased at the Nedbank in Glen Acre’s,  where it was reported to him that the accused pressured the deceased into drawing money from her bank account against her will. On the latter mentioned occasion the deceased following upon the intervention by the police officer (as was also done on other occasions) requested for the accused who was present outside the bank, not to be arrested.   

[11] The testimony by Madeleine and Warner Pieterse is that although they never met or interacted with their neighbours[17] they have noticed the accused at the crime scene before the date in question, especially when she danced to loud music on their veranda or drive in or out of the yard with her black Mini Cooper car.

[12] It is their evidence that around 6h00 on the fateful Sunday morning (5 March 2017) whilst inside their premises, situated adjacent to the crime scene, they were alerted to the frantic screams of the deceased from her yard. Madeleine was joined by Warner when they looked over the boundary wall[18], which separates their yard from the crime scene.

[13] They testified that they saw the deceased who was defenseless on the ground, being dragged by her arms by a female dressed in a white night gown and who sported an afro hairstyle, like that of the accused as depicted in photo 10 of exhibit 1.  According to their testimony they also noticed a small boy child standing in close proximity to the two women.

[14] Traumatised by what she witnessed, Madeleine shouted at the assailant (whom she claimed to have identified as the accused before court) inter alia that she will call the police. The evidence is that the accused uttered the words “everything is under control” but continued to drag and stamp on the deceased’s head with her foot, in the midst of the deceased’s desperate screams for help. The two witnesses testified that the boy child present was obviously traumatised and looked at them when he uttered words to the effect “Mummy is pulling/bullying grandma”. 

[15] The couple moved away from the wall to call the police. Madeleine testified that whilst she was inside her house the deceased’s screaming subsided to a deadly silence. She returned to look over the boundary wall and noticed the accused that was bending forward, in front of the short wall around the pool[19] whilst performing a downward shove like motion. She stated that she did not see the deceased then, but heard the echo of splashing water. The boy child in question was still nearby and appeared to be in a state of shock.            

[16] The testimony by Itumeleng is that he is six and a half years old and stayed at Kempton Park with his mummy Lerato and the deceased (his grandmother which he referred to as Babatu).It is his testimony that on a Sunday morning the accused and the deceased were fighting about money .Whilst inside their house the accused went to the deceased bedroom and placed a plastic bag over the deceased head. The deceased fought and removed the bag from her head.

[17] The accused pushed the deceased to the ground and pulled her outside towards the swimming pool. He testified that a lady next door was at the wall and said that she would call the police. At the swimming pool Lerato pressed closed Babatu’s[20] nose then she died.

[18] His testimony goes further to the extent that the accused changed her clothing and took him whilst still dressed in his pyjamas into her car and drove to two different shopping malls, where after they went for breakfast. His evidence is that the police arrived where they were and arrested his mummy Lerato and took her to jail. He testified that after the incident he was quiet and later when his father fetched him, he told his granny Joyce what he witnessed. It is his evidence that nobody told him what to say at court, it was only his granny Joyce that told him to speak loud. 

[19] It transpired that the police and the witness Lieutenant Colonel Masingi were contacted and informed of the events witnessed by the Pieterses. According to Masingi’s testimony his wife was a friend of the deceased. He knew the accused as the deceased’s daughter and he had personal knowledge of the bad relationship between the mother and daughter. He testified that on a number of earlier occasions he or his wife had to call the deceased sister residing at Daveyton, upon requests by the deceased who complained that the accused demanded money from her.

[20] Having received a call around 7h19 the morning in question, Masingi and his wife went to the crime scene. There he met Seargent Ditshego and another police officer who responded to the complaint received. The motor gate to the crime scene appeared to be locked and they opened it by lifting the gate off its track.       

[21] Once inside the yard they discovered the deceased body floating face down inside the swimming pool. The witness Botma who is a paramedic arrived and certified the deceased dead as per the contents of exhibit A. According to Warrant officer Seleteng’s testimony he found the crime scene as he photographed it in photo’s 1 to 8 of exhibit 1. He was further informed that a suspect was at the police station, where he went and took photos 9 to13 in exhibit 1 of the accused person. He explained that the accused had a scratch on her neck[21] and a bruise on one of her arm[22].     

[22] On the 7^th day of March 2017, Doctor Sajida Medar, employed by the state as a medical registrar in forensic Pathology conducted a medico-legal post mortem examination on the deceased’s body as per the contents of her report exhibit B. The cause of the deceased death, she found to be “application of pressure to the neck and drowning”. She explained her findings to the extent that there were multiple bruises found to the neck of which throttling or strangulation was the probable cause.

[23] The Dr elaborated that the frothy fluid surrounding the deceased nostrils is common and indicative of a person who was immersed in water and who struggled for air. The inflated lungs noted were according to her testimony, also consistent with drowning. It is her further testimony that the multiple indentations to the deceased leptomeninges noted at page 5 paragraph 6 in exhibit B, may have been caused by blunt force to the head.           

[24] During her testimony, the accused did not emphatically deny that the events indeed unfolded as witnessed by Madeleine and Warner, however  she denied that she is the perpetrator who killed her mother as alleged by the state.

[25] She testified that she attended an event the Saturday evening, where after she visited the Cappello’s restaurant where she consumed two 330ml of Savana alcoholic beverages alone. After 21h00 she arrived home and found her son Itumeleng watching television and the deceased in her bedroom. She bathed Itumeleng where after they went to bed.

[26] Sunday morning she woke up between 6h00-7h00 and found Itumeleng to be restless. She then decided to take him for breakfast .It is her testimony that she does not remember seeing her mother that morning before she left with her son. Her testimony is that she drove her car to a Total garage where she bought data for her phone. From there she drove to the Woodbridge Shopping mall to ascertain if the Woolworths store was open and eventually she arrived at the Glen Acre’s shopping mall where she ordered takeaway breakfast for her and Itumeleng from a Spar store.

[27] The evidence by the accused is that she was approached outside the shop by the police who arrested her on the allegations of having murdered her mother. She testified that the state witnesses Madeleine; Warner and her son Itumeleng incriminated her falsely.

[28] She agreed that she has never met the Pieterses but conceded that they may have seen her at the crime scene prior to the day in question as they testified. It is further her testimony that Itumeleng’s father with whom she did not see eye to eye may have influenced him to incriminate her as he testified. It was her evidence that children are easily influenced and mimics what they see.

[29] Further the accused testified that although she argued with her mother it was insignificant disagreements sometimes about money and the use of a car. It is her version that the witnesses Masingi and Ditshego who alluded that there was complaints by the deceased that she demanded money is taken out of proportion, since she has never had a big fight with her mother about money.             

[30] That was a brief account of the probative material on record. 

C.    EVALUATION AND FINDINGS 

[31] The primary question to be decided is whether the state has proved the accused’s guilt beyond reasonable doubt. I am guided by the often quoted dictum of the Supreme Court of Appeal in S v Glegg[23] in which Rumpff JA made the statement that: “The concept ‘reasonable doubt’ cannot be precisely defined, but this can be said: that it is a doubt which exists because of probabilities or possibilities which are considered reasonable on the ground of general human experience and knowledge. Proof beyond a reasonable doubt is not equated with proof beyond the slightest doubt, because the onus to render proof at so high a standard would frustrate the administration of the criminal law.”

[32] The corollary is that, if the court finds the accused’s innocent versions to be reasonably possibly true, within the context of the entire body of evidence, the court shall entertain a reasonable doubt regarding her guilt, which must redound to the accused benefit by an acquittal.[24]

[33] It is not in dispute that the deceased was murdered at the crime scene the morning of 5 March 2017 between 6h00-7h00. It is further not in issue that the deceased died as a result of the application of pressure to her neck and drowning as found by the Pathologist.

[34] The sole issue to be decided is whether the accused is the perpetrator of the murder proved by the state’s evidence. In addition the averment by the state that the alleged murder was planned or premeditated is required to be decided.[25]

[35] Counsel for the state argued that the direct evidence presented by three state witnesses and the further circumstantial evidence which points towards a history of violent or abusive tendency by the accused, towards the deceased, proves the accused guilt beyond reasonable doubt.  

[36] The Defence Attorney on the other hand, argued that the eyewitness Madeleine and Warner’s account on the identity of the perpetrator may have been mistaken due to inadequate observation and is therefore unreliable. Further that the evidence by the child witness Itumeleng, may have been fabricated to the extent that it is not what transpired.  It was contended that the accused denial of having been the perpetrator of the murder should be upheld by the court, as being reasonably possibly true.

[37] Considered the general purport of the criminal onus, I now continue to evaluate the probative material, with due regard of the credibility of the witnesses; the reliability of their evidence; the general probabilities of the case and related authority.

[38] The evidence presented by the state witnesses namely: Jabulani Masingi; Isametse Ditshego; Molefasi Seleteng; Eric Botma and Dr Sajida Medar forms the basis for the undisputed facts proved. All five of the above-mentioned witnesses impressed me as honest and objective in the presentation of their evidence.  Their respective testimony is accepted as they presented it, since I find no justifiable grounds upon which their evidence stands to be rejected.

[39] I now address the issue concerning whether it is proved by the evidence, that the murder was planned or premeditated. In this regard the accepted testimony by Dr Medar is that the deceased (who was known to have lost full mobility) was throttled and or strangled; injured with blunt force to the head and drowned by the assailant. To my mind these facts proved, can only point to a planned and premeditated murder and I indeed find as such.  

[40] I now turn to consider the identity of the perpetrator.  In this regard the state’s case turns on the eyewitness account of the two Pieterses and that of Itumeleng a child witness.  It is practice for evidence on identity to be evaluated with caution. Due to the known fallibility of human observation, the reliability of an identifying witness’s observations must be tested. It is not sufficient for the court to consider only the credibility of the witness, but also to investigate the circumstances under which the identification was made in order to determine the reliability of the evidence.

[41] I took account of the undisputed fact that the incident at hand transpired in broad daylight. Further the evidence by Madeleine and Warner to the extent that there were no obstruction between the two woman and them when they stood at the boundary wall, other than the low level wall around the swimming pool. It is further evident by the contents of the two witnesses testimony, that when they ventured into looking over the boundary wall, both of them had a particular interest to see why the deceased screamed so panic stricken. I find that the circumstances during which the identification had to be made was favourable for a correct identification. 

[42] Both these  witnesses described the perpetrators  attire and hair style similarly and I find it more than coincidental that they described the hairstyle of the assailant as an afro which is the type of coiffure[26]  sported by the accused on the particular day and prior. The unchallenged and highly probable evidence by the Pieterse couple, that they knew the accused by sight for some time as a person who frequented the premises and danced on the veranda at the crime scene, raises the probability that their identification of her as the perpetrator is accurate.

[43] In addition it is so that the evidence by Itumeleng provides substantive corroboration for the testimony of Madeleine and Warner. It is noteworthy to mention that Itumeleng is an entirely independent witness in relation to the Pieterses. I find it highly improbable that the child, who was at the time younger than 6 year old, would have been able to concoct false evidence together with total strangers, against his own mother.

[44] It is well known that children lacks the attributes of adults, however I do not find the discriminatory and generalized view testified to, by the accused convincing so as to reject the child witnesses testimony, for the mere fact that it comes from a child.

[45] In fact I find that Itumeleng was an excellent witness. He presented his evidence logically albeit in his child like manner. The evidence presented by him, came across so naturally and it is difficult to accept that he was coached into testifying to the graphic events, if he did not experience same. I further take cognisance of the fact that the child’s testimony and that of the two other eyewitnesses, reciprocally serves as corroboration.

[46] The favourable comments expressed regarding the state’s case cannot be extended to the accused. I find that she was not a candid witness and the deceitful character of her evidence is exposed by the objective and reliable evidence on record.

[47] Further the record will speak for itself and show that the accused adapted her evidence as the proceedings progressed. In addition the accused evidence to the extent that Itumeleng’s father may have influenced him to present mendacious evidence against her, is speculative in nature and it is in conflict with all the reliable testimony on record.

[48] I find the accused denial of not having been present at the crime scene during the murder, highly improbable. It is illogical for Madeleine and Warner to have heard the deceased screaming around 6h00 (which evidence went unchallenged by the defence) and for the accused to have woken up that morning around the same time and for her not to become aware of the deceased’s desperate screams. 

[49] The unchallenged evidence that proves that the accused presented with the injuries photographed, supports my reasoning that she was involved in a physical altercation, shortly before she was arrested. Her evasive explanation as to the possible circumstances under which she sustained the injury on her neck is of no consequence.

[50] The evidence is overwhelming that the accused perpetrated the murder. I reject her evidence as false, where it is in direct conflict with that presented by the state. Her evidence cannot be said to be reasonably possibly true.

[51] I find that the available evidence proves beyond a reasonable doubt that she is the perpetrator who with premeditation; wrongfully and intentionally inflicted the fatal injuries which caused the deceased’s death.  I phrase the judgment below.

__________________________

Matthys R

Acting Judge of the High Court

Gauteng Local Division (Johannesburg)

 

Appearances

1.    Counsel for the State: Adv Khumalo

2.    Counsel for the accused : Attorney Mr J Penton (Judicare) as instructed by LASA

---

---