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IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE HIGH COURT, KIMBERLEY)

Case No: K/S 6/11

Delivered: 17/11/2011

In the matter between

THE STATE

v

MOLUSI DANIEL LITSILI

JUDGMENT

PAKATI AJ

1. The accused, Mr Molusi Daniel Litsili also known as Danny Boy, appears before me on three charges. In count 1 he faces a charge of murder. In count 2 he is charged with rape in contravention of section 3 read with sections 1 and 56 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007 (“the Act”), alternatively sexual acts with a corpse in contravention of section 14 read with section 1 of the Act. In count 3 he is charged with theft. The incidents are alleged to have taken place during the early hours of 12 June 2010 in Saul City, in the district of Kimberley. The accused, a male person aged 40 years, is alleged to have killed and raped his mother, the deceased, Caroline Madira-Mokotla Letsili. It is further alleged that he stole the deceased’s cell phone and an amount of R150-00 before fleeing to Johannesburg.

2. The accused was represented by Mr J Cloete on the instructions of the Legal Aid Board. He pleaded not guilty to all the counts. In his plea explanation he denied all the charges. The following admissions were recorded in terms of section 220 of the Criminal Procedure Act, 51 of 1977 (“the CPA”) (Annexure A):

“1 I admit that the deceased was my mother.

2. I admit that I stayed with the deceased in the house where her body was found.

3. The identity of the deceased is admitted as Caroline Madira-Mokotla Litsili and that she was 61 years old.

4. I admit that the body of the deceased was found by Matlhogonolo Edward on 18 June 2010 at approximately 10h00.

5. I admit that the deceased did not sustain any injuries from the time she was discovered by [Ms] Edward until the post mortem.

6. The contents of the post mortem report are admitted.

7. I accept the photo plan with key thereto as compiled by [Constable] Matlawe as correct and is attached as exhibit “C”.

8. I admit that the blood of the deceased was found on the shoes with laces. These shoes are visible on photos 26 and 27 of exhibit “C”.

9. I admit that the blood of the deceased was found on one of the jeans that can be seen on photos 26 and 27 of exhibit “C”.

10. I admit that the deceased was found in the condition and under the circumstances as can be seen on photos 4 to 8 of exhibit “C”.

11. I admit that the deceased had a cell phone.

12. I admit that the cell phone number of the deceased was 0825828474.

13. I admit that the cell phone handset of the deceased had a unique IMEI number 353521007080417.”

3. According to Ms Boitumelo Litsili, sister to the accused, she stayed in Bloemfontein, and still is, when the incident took place. The accused stayed with the deceased. She last saw the deceased alive in January 2010 and last spoke to her telephonically around 07 June 2010.

4. The deceased used to visit Ms Litsili in Bloemfontein. On such occasions she would inform her in advance. She would then pick her up from Bloemfontein railway station. On 06 June 2010, the opening of the World Cup games, the deceased sent her a short message service (“sms”) saying, “I am afraid.” Ms Litsili testified that she did not have enough airtime but she phoned the deceased the following day enquiring about the contents of her sms. The deceased told her that she should not worry herself about it but did not mention why she was afraid. After this call the deceased told her that she wanted to come to Bloemfontein but did not have money. Ms Litsili also did not have same.

5. Ms Litsili established that a phone call was made from the deceased’s cell phone on 12 June 2010. She stated that she did not speak to the accused from the day the deceased’s body was discovered till his arrest on 28 October 2010. The accused did not attend the deceased’s funeral which took place in mid June 2010.

6. Ms Lillian Moleboheng Mopu, a friend to the deceased, testified that on 11 June 2010 she was seated at home with the deceased and others playing cards. The deceased drank two glasses of beer and left her premises before 23h00. Prior to the World Cup Games there were nights which the deceased spent at her place. There were no prior sleeping arrangements between them and the deceased did not explain why. She noticed that something scared the deceased at her place. The Tuesday or Wednesday prior to 11 June 2010 she accompanied the deceased to her place to fetch some money because the deceased wanted to buy cigarettes from her. At deceased’s home they found the accused. The deceased asked the accused where her money was. The accused answered arrogantly: “You know where the money is, don’t ask me where the money is.” The deceased took the money and they left.

7. Ms Marope Maria Kale, also a friend of the deceased, was present at Ms Mopu’s place when cards were played with the deceased and others. She left Ms Mopu’s premises around 22h00 to her house in the company of the deceased because the deceased wanted cigarettes from her. The deceased lived in the next street. After she had given her cigarettes she watched the deceased until she waived to her indicating that she was fine as she entered her home. That was the last time she saw her alive.

8. Mr Ishmael Moipolai, also known as Oupatjie, testified that the accused is a relative from his father’s side. On 11 June 2010, the opening of the World Cup Games, he was at his home at Klub 2000. At 15h30 the accused joined him and they watched the football game together. They consumed liquor. When the game was over around 17h00-18h00 the accused told him that he was hungry and wanted to go home. Seeing that the accused was moderately drunk he walked him to his parental home. The accused’s mother was not home at that stage. The accused was wearing blue jeans and yellowish brown shoes (exhibit 2 and 3).

9. At the time of the incident the deceased was working at the Home Based Care Centre, an initiative by the Department of Health, as a nurse. Ms Matlhogonolo Edwards testified that she worked with the deceased. On 11 June 2010, the Friday, the deceased was on duty but on 14 and 15 June, the Monday and Tuesday, the deceased did not report for duty and no report was received from her. On 17 June 2010, after the public holiday of 16 June 2010, she again failed to report for duty. On 18 June 2010 Ms Edwards phoned her. The voice message from her cell phone reported that the number did not exist. Because this was strange she proceeded to the deceased’s home to investigate. She and the deceased were expected to compile a report regarding their work that day. On her arrival she noticed that both burglar gates on the doors were locked. She knocked on the front door and a bedroom window but there was no response. She noticed the house keys lying outside the house.

10. Ms Edwards requested a neighbour, whose name she could not recall, to assist her to open the door. The neighbour refused. Ms Edwards then opened the house using the key. She started by opening the burglar gate and the door slowly. She noticed deceased’s thigh facing upwards as seen on photo 4, 5 and 6. She retreated. She borrowed a cell phone from the neighbour and summoned the police. She stated that no one else was inside the house with the deceased. She did not get inside the house with the police when they inspected the scene. No one entered the house from the time that she unlocked the door until the police arrived.

11. Mr Isaac Matlawe, a constable employed by the South African Police Services and attached to the Criminal Record Centre (“LCRC”), visited the scene where deceased’s body was found. He called Mr Gerhardus Esterhuysen, the investigating officer, to assist him. W/O Esterhuysen showed some points to constable Matlawe who took photos. W/O Esterhuysen collected some exhibits on the scene. They noticed that the blood on the scene was already dry. W/O Andre Mc Anda, who is based at the LCRC in Kimberley and trained in forensics to retrieve DNA, also assisted constable Matlawe on the scene. Other photos were taken during post mortem examination on 21 June 2010.

12. W/O Mc Anda took possession of the spade (exhibit 1) that he found on the deceased’s chest and a bucket and a knife (exhibit 4) that he found on the kitchen table. He also took possession of an empty condom wrapper on the kitchen floor but no used condom was found. The knife appeared to have blood marks on it but when tested forensically the reaction was found to be weak.

13. In the small bedroom W/O Mc Anda found yellowish brown shoes (left shoe exhibit 2 and right shoe exhibit 3). Another pair of white Levi tekkies, a pair of blue Levi jeans as well as a pair of blue and red buttoned jeans, visible on photos 28 to 32, were dispatched for biological investigation in Cape Town. The blood visible in the kitchen and the main bedroom was in crusted form. The officer took some of the exhibits for fingerprints to be uplifted at Kimberley laboratory. The DNA results of the yellowish brown shoes and the jeans belonging to the accused matched the DNA of the deceased (exhibit “D”). Apart from the deceased’s blood on her long pants her blood was also found on the jeans and the shoes belonging to the accused.

14. W/O Esterhuysen testified that the inside rooms were in a mass. Cupboards and pedestals were left opened. The bed in the main bedroom was not made up and there was a lot of dry blood on the floor. He noticed what looked like a shoe print on the floor. In the bucket found on the scene there were fingerprints which could not be identified. No foreign DNA was found on the samples of the deceased sent for forensics. He also discovered that the cell phone belonging to the deceased was missing. He applied for a section 205 subpoena (exhibit “F”) in terms of the CPA for Vodacom to assist in the investigation. The result was that on 12 June 2010 at 09h52 a call was made from Kimberley using the deceased’s cell phone handset. On the same day another call was made at 11h55 (two hours later) from Bloemfontein from the same hand set. The number phoned was 079 277 9549 which belonged to Mr Godwin Malefane, a friend to the accused. No further calls were made from the deceased’s cell phone since then.

15. Mr Louis Cronje, a warrant officer in the Dog Unit Kimberley, testified that the shoe print visible in photo 16 which he lifted is similar to the shoes which were retrieved from the crime scene (exhibit 2 and 3). The implication clearly is that the person who stepped on wet blood or wet surface, wore exhibits 2 and 3. It was common cause that the shoes belonged to the accused.

16. A search for the accused started from 18 June 2010. An application for the section 205 subpoena was made to South African Social Security Agency (SASSA) where the accused received a social grant in order to obtain his identity number. In an effort to trace the accused they made use of a television programme called ‘Duty Calls’ and news papers. During September 2010 W/O Esterhuysen went to Randburg after receiving information that the accused was arrested in Randburg on a charge of loitering but was unable to locate him. The accused was arrested on 28 October 2010 with the aid of undercover police.

17. Mr Bongani Ronald Msuthwana is a member of the SAPS stationed in Galeshewe as a detective in the Dog Unit. His duties entail tracing the most wanted suspects and arrest them. On 28 October 2010 he was in Randburg on under cover duty tracing the accused. He located him in the Church of England in Randburg. He went outside with him. He noticed that one of his cheeks was swollen. When he asked whether he needed medical attention he said he was not feeling pain. He explained accused’s rights to him, arrested him and took him to Randburg Police Station as a suspect in transit. The following day he transported him to Kimberley.

18. Mr Rudolf Louwrens, a Captain in the Galeshewe Cluster and Head of the Serious Crimes Unit who also works with the Hawks, was on duty on 29 October 2010. The accused was introduced to him by W/O Esterhuysen. Captain Louwrens in turn introduced himself to the accused. He informed the accused of the allegations against him. He noticed that his left cheek was swollen. After explaining to him his constitutional rights he asked if he was prepared to make a warning statement regarding the allegations. The accused told him that he would write everything down the following morning because he suffered from a toothache. The accused was taken to hospital the same night. W/O Esterhuysen took him to hospital again the following morning, a Saturday.

19. On 31 October 2010 the accused was prepared to make a warning statement which was taken down by Captain Louwrens. Ms Jansen for the State submitted that the statement taken down by Captain Louwrens complied with the provisions of section 217 of the CPA and that was not in issue as Mr Cloete for the accused confirmed this.

20. Dr Sonata Wolraven, who performed the autopsy on the deceased, recorded the chief post mortem findings as follows:

“1. The body of an adult female with extensive head injuries:

1. Multiple incision-lacerations (blunt/sharp trauma) to the head and face;

2. Incision wounds to the face and hand (sharp trauma);

3. Multiple underlying skull fractures;

4. Bilateral mandible and maxilla fractures.

2. Congealed blood in the airways.

3. Naked lower body.”

21. According to Dr Wolraven the spade fitted in well as the assault weapon regard being had to the injuries (incision-laceration) sustained by the deceased. The doctor recorded in para 1 of exhibit “B1” attached to exhibit “B” (the post mortem report) as follows:

“A large number of injuries were recorded. Of these, multiple incision-lacerations, mostly over the head, were noted which suggest blunt/sharp force trauma consistent with injuries sustained from a blow with the edge of a spade. Whether this edge was the end edge of the spade or the side edges is debatable and certainly the injuries could have been sustained from both the end edge and the side edges of the spade. Furthermore, a number of contusions and abrasions were sustained over the body – these are consistent with blunt force trauma and may well have been sustained from blows to the body with the flat side of the spade.”

22. Dr Wolraven also found multiple bruises of the upper and lower arms. She interpreted these wounds as defence wounds when the deceased parried the blows. The base of the skull was fractured and the lacerated brain tissue could be seen through the wound. According to her the fracture of the base of the skull is usually caused when one side of the head is supported while there is a blow to the other side. This kind of fracture is not possible if the victim receives the blow while standing as the head must collide with a hard object on the other side. Dr Wolraven also found that the deceased sustained fractures of ribs 3 (anterior) and 5 (lateral) on the left. There were also post mortem (after death) antero-lateral rib fractures of ribs 3 to 10 on the right. She stated that the deceased sustained these fractures after the heart had stopped beating. She also observed that the brain was decomposed because there was green staining. She intimated that the green staining was consistent with the lapse of about 6 days, when the deceased was discovered. She concluded that the cause of death was severe head injuries.

23. The accused testified in his defence that on 11 June 2010, the day of the opening of the World Cup Games he watched the games with Moipolai at Moipolai’s house. They consumed liquor in the process. When the game was over he walked home in the company of Moipolai. His mother was not at home. He went to the shop to buy food because he was hungry. He ate the food at home and went to the neighbour’s house where he and the neighbour sat by the fire and drank liquor. He was later called by his mother. He then went home. His mother gave him a sum of R20-00 and went to Ms Lillian’s place. He then slept.

24. The following morning, the 12^th of June 2010, his mother woke him up and wished him a happy birthday. She gave him R150-00 to spend on himself. He took some of his savings, and the R150-00 that his mother gave him and his ID and went to buy himself a cell phone. When he left home he took his mother’s cell phone. On his way he met a gentleman who accused him: “You and Jomo took my cell phone when I slept and passed out.” He told the man that Jomo was the one who searched him. The man called his friend and they drew knives on the accused. Because he was frightened he fled to his friend, Malefane, in Bloemfontein. He denies killing and raping his mother. He also denies stealing the deceased’s cell phone and money. He maintained that before he left for Bloemfontein there was no quarrel between him and his mother. He said he left home to look for work.

25. That the deceased was murdered is common cause. The crisp issue to be determined is the identity of the perpetrator. The accused pleads an alibi and maintains that he was not present when his mother was murdered. He testified that he has been falsely implicated as the murderer and rapist. He acknowledges that on 11 June 2010 he was wearing the blue and red buttoned jeans (exhibit “F”) and the yellowish brown shoes (exhibit “2 & 3”). He states that he was moderately drunk. This was confirmed by Moipolai. The accused also admitted that he was at home with his mother on the same evening (11 June 2010). He stated that nothing sinister happened between him and his mother that evening.

26. If the accused went to Bloemfontein because he was scared of the attempted assault on him by the unnamed attackers he was at least expected to inform his sister and his mother about his whereabouts and why he fled. That he never phoned or visited his sister in Bloemfontein even though he knew she lives there is strange. When asked to explain this he first said that he was heavily intoxicated. When it was put to him that he could not have been intoxicated for three days on end he said: “First of all I left Kimberley and I was not supposed to leave because I was still under correctional supervision and I did not want anybody to know my whereabouts.” This, in my view, clearly shows that he was running away from Kimberley because of what he knew happened at home. He remained on the run until he was hunted down.

28. After taking the deceased’s cell phone the accused made the last call on 12 June 2010. He explained that the reason why he did not make further calls was that the phone got lost. It does not make sense that the accused took the deceased’s cell phone along when he went to town to buy his own cell phone. He later explained that he kept the cell phone because he was expecting a call from someone.

29. Malefane informed the accused that people were looking for him because his mother passed on. When he was asked during cross examination whether he phoned his sister about what happened to his mother he said he did not comprehend what Malefane was saying to him over the phone. Even though the accused knew that his mother had died he called none of his relatives. He said he did not have anybody’s contact numbers. Strange enough, he testified that whilst in Randburg he phoned Malefane on 15 October 2010.

30. The accused could not explain how deceased’s blood landed on his shoes and the blue jeans he wore on 11 June 2010. He also could not explain his shoe print similar on the blood-soaked or liquid-smeared bedroom floor. He said that when he left his shoes they were clean. This implies that someone wore his shoes and his blue jeans, killed his mother, raped her and walked around the house. He stated that it was possible that the perpetrator spilt blood on his clothing and shoes to set him up. The accused’s explanation is not only false but it is also laughable.

31. The accused first testified that when his statement was taken he was not intoxicated and made it freely and voluntarily. He later claimed to have been intimidated and threatened to make the statement because Captain Louwrens tightened the handcuffs to pinch him and assaulted him on his private parts.

32. What is surprising about this version is that a medical note (J88) completed by the doctor who examined the accused only noted 1cm laceration on the left wrist and the laceration was 48 hours old. This finding was consistent with the fact that the accused was handcuffed from Randburg on the 28 October 2010 until 29 October 2010 when he was examined. The fact that he was assaulted in his private parts was never put to Captain Louwrens when he testified.

33. The accused testified that when he made admissions to Captain Louwrens he repeated things that the Captain dictated to him. He testified that he was shown the photo album in Randburg already and when he came to Kimberley W/O Esterhuysen and Captain Louwrens also showed it to him. According to him that is how he knew that his mother was hit with a spade and was left lying on the kitchen floor. He therefore had to give a statement that would fit what he saw in the photos. When asked why he mentioned in his statement matters that were not relevant to the charge; for example, mentioning the fact that he was given R500-00 by Dr Deon Thuys, he said: “...I talked about this money because it is the cause of this incident.” He stated in his statement that he fought with his mother. However, he later denied that he fought with his mother but said he mentioned this because he was lying and was just giving a statement.

34. W/O Esterhuysen testified that Captain Louwrens had no prior knowledge of the matter before he took down the statement. Captain Louwrens corroborated this evidence. What is unexplained about this is that if W/O Esterhuysen and Captain Louwrens showed the photos to the accused prior to the statement being taken from him why was this not put to the witnesses when they testified? The accused explained that the reason why his counsel was not instructed on this issue is because when the police testified they never mentioned the photos.

35. The deceased sustained some vaginal injuries. In respect of rape Dr Wolraven made the following note regarding the vaginal fluid seen in photo 8 of exhibit “C” and other vaginal wounds and expatiated in paras 1-4 of exhibit “B2”as follows:

“1. To the best of my knowledge, the following possibilities exist for what the white fluid seen draining from the vaginal introitus could be:

Women of post menopausal age, as the deceased was, stop producing cyclical fluids as women of premenstrual age do. They [often] suffer from vaginal dryness. This suggests that it is highly unlikely that the fluid was a secretion from the deceased’s body. However, it must be considered that it may have been a lubrication type of gel applied by the deceased, as treatment for vaginal dryness.

While I am informed that DNA testing was negative, the following reasons for negative DNA on seminal fluid must be considered:

• Time lapse from deposit to sampling – the longer seminal fluid is exposed to environment, the smaller the chances of a positive test become.

• None production of sperm by the accused (azoospermia)

• Use of condom – “messed” remaining fluid does not contain viable sperm

• Use of spermacide

• Ejaculation outside the vagina...

All three wounds described showed no vital reaction which means that they were sustained after the deceased’s heart had stopped beating.

These injuries are INSIDE the vagina – on the posterior vaginal wall and would have had to be caused [by] penetration. A blow from the spade or a fall could at the very most have caused external bruises but NOT the internal injuries found at post mortem.

A penis violently penetrating into the vagina (after the deceased had died) could cause these lacerations.”

The doctor confirmed the correctness of her post mortem notes.

36. No one witnessed the incidents. The evidence is therefore circumstantial in nature. In S v REDDY AND OTHERS 1996 (2) SACR 1 (A) at 8c-g Zulman AJA held:

“In assessing circumstantial evidence one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft-quoted dictum in R v BLOM 1939 AD 188 at 202-3, where reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such ‘that they exclude every reasonable inference from them save the one sought to be drawn.’ The matter is well put in the following remarks of Davis AJA in R v DE VILLIERS 1944 AD 493 at 508-9:

‘The court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one so taken. It must carefully weigh the cumulative effect of all of them together, and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference which can reasonably be drawn. To put the matter in another way; the Crown must satisfy the Court, not that each separate fact is inconsistent with the innocence of the accused, but that the evidence as a whole is beyond reasonable doubt inconsistent with such innocence.’”

37. I am satisfied that the perpetrator who killed and had sexual intercourse with the deceased is the accused. This explains how the deceased’s blood came onto his blue jeans and shoes. The accused was unable to give an acceptable explanation of the presence of blood on the aforesaid items.

38. As far as the charge of theft is concerned I am persuaded that the accused had no lawful reason to take the deceased’s cell phone. She could not consent to its removal because she was dead. In fact the removal of the phone and the violence are so closely connected that a verdict of robbery would still have been competent if he faced such a charge from the beginning.

39. The principle to determine what form of intent to murder an accused should be convicted of has been authoritatively formulated in the following terms by Holmes JA in S v SIGWAHLA 1967 (4) SA 566 (A) at 569 G-H – 570 A:

“The next question is whether the State proved beyond reasonable doubt that the appellant intended to kill the deceased. At this stage I use the word intention in the sense of dolus directus, i.e. where the will is directed to compassing the death of the deceased. It is sometimes said that a person is presumed to intend the reasonable and probable consequences of his act. As to that, I had occasion to point out in R v. Sacco, 1958 (2) SA 349 (N) at pp. 351H to 353C, that it is simpler to speak of inferences of fact than of presumptions; that the practical approach is to eschew piecemeal processes of reasoning, and to look at all the facts at the end of the case, and from that totality to ascertain whether the inference in question can be drawn; and that inferences do not affect the incidence of the onus of proof - they assist its discharge.

Stabbing cases are usually a matter of degree, and intention must not be inferred by hindsight from the fact of death. The part of the body injured is relevant, but in the present case the deceased was walking and the appellant jumped forward as he struck. Hence it cannot be inferred beyond reasonable doubt that he actually aimed at the heart, as distinct from the general area of the upper body. Accordingly, the fact that the thrust did land with fatal consequences above the heart does not, in all the circumstances, necessarily give rise to the inevitable inference that the appellant intended to kill, in the sense of directing his will toward the bringing about of the death of the deceased."

40. Notably large amount of force was used in hitting the deceased with the spade. The severity of the head injuries sustained by the deceased was to the extent that the deceased could not have survived because of blood found in the airspaces. It is not possible that the accused left the deceased alive as he wants the court to believe. What is clear is that the accused continued to assault the deceased after her heart had stopped beating. This is evident from the medical evidence that there were post-mortem (after death) antero-lateral rib fractures of ribs R3 to R10. The sexual act was also committed post mortem. The deceased was an elderly woman of 61 years and defenceless. The accused wanted this court to believe that she was armed with the spade when he disarmed her of it. The assault on her was vicious and gruesome resulting in the injuries already described which led to her death. The evidence of Dr Wolraven is clear that the deceased was already dead at the stage when the accused had sexual intercourse with his mother. The accused’s conduct complies with the definition of having sexual intercourse with a corpse.

41. The manner in which the deceased met her demise with specific reference to the injuries found during the post-mortem examination and her cause of death, satisfy me that the only reasonable inference that can be drawn is that the accused assaulted the deceased with the direct intention to kill her.

42. I am satisfied that the state proved its case beyond a reasonable doubt. I find that the accused’s version is a fabrication and I reject it as false.

The following verdicts are returned:

1. On count 1 (Murder): The accused is found guilty of the murder of Caroline Madira-Mokotla Litsili with dolus directus as a form of intent to cause her death.

2. On count 2 (contravention of section 14 read with section 1 of the Criminal Law( Sexual Offences and Related Matters) Amendment Act 32 of 2007: The accused is found guilty of sexual act with a human corpse.

3. On Count 3 (Theft): The accused is found guilty of theft of the cell phone and R150-00 belonging to the deceased.

________________________

B M PAKATI

ACTING JUDGE

On behalf of the State	Adv C Jansen
Instructed by	Director of Public Prosecutions
On behalf of the Accused	Adv J Cloete
Instructed by	Kimberley Justice Centre

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