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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CC129/06

In the matter between

THE STATE

and

KGOMOTSO DAVID SELLO & ANOTHER

DATE OF JUDGMENT : 26 March 2007

COUNSEL FOR THE STATE : Adv. Ramorwesi

COUNSEL FOR ACCUSED 1 : Mr Phetoe

COUNSEL FOR ACCUSED 2 : Mr Mathunzi

JUDGMENT

GURA J:

[1] The two accused appear before this court represented by Messrs Phetwe and Mathunzi respectively. The State is represented by Ms Ramorwesi.

[2] They are facing the following charges:

Count 1: MURDER (READ WITH SECTION 51, SCHEDULE 2 OF ACT 51 OF 1977)

In that upon or about the 5^th day of November 2004 and at or near

Spruitfontein in the district of Rustenburg the accused did

unlawfully and intentionally kill THABANG GIFT SEGONE a minor

male person by drowning him and cutting him with a knife.

Count 2: INCITEMENT TO COMMIT MURDER (IN RESPECT OF ACCUSED NO. 2 ONLY) (CONTRAVENTION OF SECTION 18 (2) (b) OF THE RIOTOUS ASSEMBLIES ACT 17 OF 1956)

In that upon or about the 5^th day of November 2004 and at or near Spruitfontein in the district of Rustenburg the accused did unlawfully and intentionally incite, persuade or influence Kgomotso David Sello and Samuel Ntatlhalefu Ditshwane to kill Thabang Gift Segone a minor male person.

[3] Accused 1 pleaded not guilty on Count 1 and Accused 2 pleaded not guilty on both the main and the alternative counts. Accused 2 elected not to disclose the basis of his defence whilst Accused 1 made the following explanation:

“On the 5^th November 2004 in the morning I was with my friend Samuel Motlhalefi Ditshwane, and we were approached by Mr Witness Mjuluku. He requested us to accompany him to his house so that he could give us money to buy him some items in the shop.

Upon our arrival at his place he started to prepare food and mixed water with traditional medicine. Witness Mjuluku then applied his medicines on our bodies.

Mjuluku then instructed us to kill Thabang (deceased person) and bring his body parts to him. He gave us a knife and plastic to do our job. He further told us that if we were not going to bring those parts then he would kill us.

At that stage I did not feel well. I was confused. I did not know what was happening and I felt as if I was drunk.

We brought Thabang to an old mine shaft with water inside, and this was a place which Mjuluku instructed us to kill Thabang. We went into the water with Thabang.

We pushed him down the water and we both held him down the water until he could not move. We then took him outside the dam and cut out his ear, eye, tongue and genitals.

We left Thabang in the water and gave the knife and parts to Witness Mjuluku. He then told us that if we will be arrested we should not mention his name, and if we could mention his name he would kill us with a lightning.

I would have not participated in killing Thabang if traditional medicines were not applied on me. I was not myself. I was also forced to do that as Mjuluku threatened to kill us if we were not going to follow his instructions”.

[4] The following admissions were then made by both accused and recorded by the Court in terms of Section 220 of the Criminal Procedure Act 51 of 1977 (“the Act”)

• The deceased’s name being Thabang Gift Segone

• Date of death 6 November 2004

• The body sustained no further injuries from the scene up to the holding of the post-mortem

• Dr Abba conducted the post-mortem on 8 November 2004 and recorded his findings on Exhibit B.

• Such finding are true and correct

• The cause of death is “multiple injuries”

• The correctness of the photo album, Exhibit C.

[5] Mr Jabulani Gwebu testified as follows: He is 13 years old and he knows Accused 1 as well as the deceased. On the day of this incident, he was in the company of Accused 1, the deceased and one Ntlhale Jacob Ditshwane. They were seated under a tree when Accused 1 sent the deceased to buy three sorghum beer cartoons. As Jacob was lying on the ground, a big knife fell from his pocket whereupon he (Jacob) said that since it was around Christmas time, they needed a small child. Accused1, Jacob and the deceased then drank the sorghum beer, in fact they forced the deceased to drink it. When the deceased was drunk, Jacob put him on his back and they (Accused 1 and Jacob) went away with him into the bush.

[6] The second witness was Samuel Motlhalefi Ditshwane. He was warned in terms of Section 204 of the Act when he started to testify. He grew up in front of Accused 2 and he used to attend church at his place. On the day of this incident, they met Accused 2 who invited them to come to his place in order to send them somewhere. Arriving there, they took out their shoes at the threshold of the door and therefore entered his surgery bare-footed. He mixed water with medicine and started to spray them and the house with it. He then prepared food and they ate. Subsequently, there was some change in his (Samuel’s) body because he became confused and did not know his whereabouts.

[7] Accused 2 then instructed them to go and kill Thabang (the deceased). The three of them went to a disused mine shaft where they left Accused 2. Jacob and Accused 1 then went to collect the deceased. They came across him on the road where they sat with him and Jabu. All four of them then drank Sorghum beer. Samuel had a knife in his pocket which fell down accidentally but he put it back in his pocket. He got the knife initially from Accused 2 at his house. Later, they left with the deceased to the shaft, in the bush. This shaft had water in it.

[8] Both of them got into the water with the deceased with the pretext of swimming. Then, they pushed him into the water and pressed him down until he was motionless. He was then pulled out of the water. Samuel then gave Accused 1 the knife to cut the parts which Accused 2 wanted. At that stage, Accused 2 was sitting on the shaft wall, watching so that people may not come there. Accused 1 cut the right breast, the left eye, the tongue, the testicles and the penis. All these parts were given to Accused 2 in a plastic bag. As Accused 1 was busy cutting these parts, Samuel was holding the deceased. Accused 2 warned the two that should they be arrested, they should never mention his name or else, he would strike them with a lightning. Accused 2 is a Sangoma. They parted with him there. Samuel went home, in a state of confusion, and he slept. On a Sunday, subsequent to that Friday, Samuel was arrested. When he saw the body of the deceased at the shaft, only then did his normal mind come back.

[9] Under cross-examination he testified that he could not have killed the deceased but for the muti. He believes in witchcraft and he does use traditional medicine sometimes. He believes that a traditional healer can strike one with a lightning. He once consulted a traditional healer who told him that he had a “Sejeso”. He only leant after the death of the deceased that he was related to him. At accused 2’s premises there is a one room thatched roof house being his surgery, a main house and a shack. Samuel was gripped by this confusion just five minutes after they were sprinkled with muti on that Friday and he came to his senses only two days later, ie. on a Sunday. The accused’s place was formerly called a compound. The people call him Msangoma.

[10] Dr Abba also testified. The reason why he was called to testify is not yet clear to me because the admissions on record made his evidence unnecessary. Inspector Huma on the other hand testified that he identified the corpse to doctor Abba. Inspector Rankoko testified that on a Sunday, 7 November 2004 he proceeded to the alleged dam and on his arrival, the deceased had already been taken out of the water. After the police photographers had done their work, the corpse was conveyed to the mortuary. When he arrested the second state witness later that day, he told him that he suspected Accused 1 to have killed that child because he had left him in the company of the deceased. This he said in the absence of Accused 1. After Accused 1 was arrested, and in his presence, Molatlhegi then changed his version and said they were sent by Accused 2 to kill the child.

[11] After the close of the state case Accused 1 gave evidence and he corroborates Molatlhegi entirely. He further testified that he started to know Accused 2 only that day.

[12] Accused No. 2 also testified and denied that he ever instructed Accused 1 and Samuel to kill the deceased. He never saw them on the day of this incident and they were never at his place. He is not and was never a traditional healer but he is a Christian. He knew neither the deceased nor Accused 1. However, Samuel is known to him since 1998/99 when he was attending the same church with the Accused No. 2. He explained his movements on 5 November 2004 as follows: He went to work at 04h30 and knocked off at 12h00. After taking a bath at work, he walked for fifteen minutes straight to his house. Immediately after eating, he went to bed. Later he was awoken by his daughter, Nomnikelo, who told him that he had some visitors. One of them was his colleague. In their church he excels in playing drums and dancing to the music, hence, he was given the name Msangoma. Samuel grew up under Accused 2. His mother was working for Tins at some stage and she was selling potatoes. Accused 2 used to buy from her on credit and Samuel would then come to Accused 2’s place time and again to fetch the money. These two families were in good terms. On the day of this incident, there were four shacks on his stand and those were the only houses at his premises. Three of them were occupied by tenants; the fourth, by Accused 2 and his family.

[13] The second witness for Accused 2 was his wife, Nolungelo. On the date in question she spent the whole day at home. Accused 2 arrived at 15h00 from work because he first went to Karee Mine Hostel after knock off. She offered him food, after eating, he slept. Two of his children were at home that day, Nomnikelo and her daughter. She testified that she first saw Accused 1 when the police came with them at her house. As regards Samuel, he stays near their place. These two men never came to her house on that day. There are no herbs at her place and Accused 2 is not a traditional healer or Sangoma. They are Christians. Accused 2 never went out of the yard after his arrival from work. The only guest he had that afternoon was his colleagues. Cross examination of this witness revealed the following: There is a three-room brick walled house plus four shacks. The distance from their place to Samuel’s parental house is about 1.5 to 2 km. Samuel knew Accused 2 very well. That is the end of the defence’s case.

[14] As against Accused 1, the issue is whether when he killed Thabang, he acted voluntarily. His defence is that of same automatism. As against Accused 2 the question is whether he is the one who ordered Accused 1 and Ditshwane to kill.

[15] 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).

[16] The second state witness is an accomplice who turned a state witness in terms of Section 204 of the Act. His evidence is therefore subject to the cautionary rule. Accused 1’s evidence which implicated Accused 2, will also be approached with caution.

Holmes JA in S v Hlapezulu and Others 1965 (4) SA 439 (A) at 440 D-E sets out the rationale behind this caution.

”First, he is a self-confessed criminal. Second, various consideration may lead him falsely to implicate the accused, for example a desire to shield a culprit or, particularly where he has not been sentenced the hope of clemency. Third, by reason of his inside knowledge, he has a deceptive facility for convincing description – his only fiction being the substitution of the accused for the culprit”

In my view, a wise judicial officer will always keep in mind that no accomplice in an angel. In S v Francis 1991 (1) SACR 198 (A) at 205E it was held that:-

“It is not necessarily expected of an accomplice, before `his evidence can be accepted, that he should be wholly reliable or even wholly truthful, in all that he says. The ultimate test is whether, after due consideration of the accomplice’s evidence with the caution which the law enjoins, the court is satisfied beyond reasonable doubt that in its essential features the story that he tells is a true one …..”

See also S v Van Vreden 1969 (2) SA 524 (N) at 532 E.

A rule of practice has evolved in terms of which some form of corroboration of an accomplice’s evidence is necessary. Such corroboration “takes the form either of evidence corroborating the accomplice’s evidence in a material respect or evidence implicating the accused in the commission of the offence” S v Khumalo 1998 (1) SACR 672 (NPD) at 679 B.

[17] I now turn to deal with sane automatism. Only a voluntary human act is punishable. A conduct is voluntary if the accused is capable of subjecting his bodily movement to his will or intellect. He must be capable of making the decision about his act and to execute the decision. This implies that he must be capable of preventing the prohibited act or result if he applies his mind to the matter. See in this regard Snyman: Criminal Law, 4^th edition at page 55. In S v Trickett 1973 (3) SA 336 (TPD) it was held that for a defence of sane automatism to succeed there must be evidence which is sufficiently cogent to raise a reasonable doubt as to the voluntary nature of the actus reus and secondly, that medical or other expert evidence shows that the involuntary or unconscious nature of the actus reus is quite possibly due to causes other than mental illness or disorder.

[18] The evidence of Jabulani Gwebu, the first state witness, has not been challenged. In fact, to a greater extent, accused 1 and Ditshwane confirm it. Ditshwane and accused 1 corroborated each other on all material respects. None of them contradicted himself and they never contradicted each other. Their evidence was never shaken in cross-examination. They answered to all questions promptly and were cool and collected in the witness box. Ditshwane knows accused 2 very well. Although both men testified that they acted involuntarily in killing the deceased, a critical examination of their act points to the contrary. This was a carefully planned killing. The victim was drugged first, with Chibuku, to tame him and thereafter, he was carried to the bush. He did not protest nor scream. The killers did not take him to a built up area but to a secluded disused mine shaft dam. They killed him and dissected all the necessary parts with meticulous care and tenacity. At the end of it all, they went back to the village and no one of them was blood stained. They must have washed the blood from them at the dam to avoid being questioned about blood in their hands. When they went home, none of them got lost, each went straight to his parental home. In my view, their act, in killing the deceased, was rational and voluntary. Apart from this criticism in their evidence, the court is convinced that they were honest and reliable witnesses.

[19] The evidence of the accused 2 has been corroborated by his wife. However, although Accused 2 created the impression that Ditshwane does not know him very well, his wife stated that he knew him very well. Accused 2 created the impression that Ditshwane’s parental home is far from his house. His wife says the distance from her house to Ditshwane’s place is about 1.5 to 2 kilometres. Seemingly, accused 2 cannot accurately describe the house in which he sleeps. He calls it a shack. A shack is a house without a brick wall. Its wall is made of other material other than bricks. His wife stated that she and her husband are not staying in a shack but in a brick walled house. The evidence of Ditshwane is also to the effect that there is a main house. But why does a man demote the status of his brick-walled house to that of a shack? In my view, the accused is dishonest to the court about the description of dwellings on his property.

[20] If the defence’s version is reasonably possibly true, it means this: Ditshwane and accused 1, on their own, or under the instruction of some person (other than accused 2) killed Thabang on the day in question. When they were accosted by the police, these killers, pointed out accused 2 and they fabricated all the evidence against him including the description of his alleged surgery. Accused 1, personally, did not know accused 2 before. This would mean that he fabricated such a serious allegation against a person whom he had never seen, even at the time of his arrest. This explanation by the defence is far fetched.

[21] Consequently both accused are found guilty of murder and not guilty of incitement to kill.

SAMKELO GURA

JUDGE OF THE HIGH COURT

DATED: 26 March 2007

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