S v Mofokeng (35/2021) [2021] ZAFSHC 252 (22 October 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Case No: 35/2021

In the matter between: -

THE

STATE

and

ITUMELENG

JOHANNES MOFOKENG

ACCUSED

CORAM: MATHEBULA,

J

JUDGMENT BY: MATHEBULA, J

HEARD ON: 18, 19, 20 & 21 OCTOBER 2021

DELIVERED ON: 22 OCTOBER 2021

Charges, Plea and Admissions

[1] This is another episode of a tragic tale whereby a young woman lost her life in cold blood in the hands of a lover. It is common cause that a bullet discharged from a firearm to wit 7,65mm Calibre CZ Model 70, semi-automatic pistol with serial number 646541 instantly killed her on the night of 20 May 2017 at 2507 Phomolong Location, Maokeng, Kroonstad. As a result, the accused is arraigned on three (3) counts viz murder, illegal possession of a firearm and illegal possession of ammunition.

[2] The accused pleaded not guilty and placed all allegations in dispute. The following admissions which were recorded in terms of section 220 of Act 51 of 1977 were read out by the defence counsel and the accused duly confirmed them. They are as follows: -

1. The identity and birth date of the deceased.

2. The chain evidence from the date and time of the incident until the post-mortem was performed on the body of the deceased by the appointed Medical Officer. In essence that the body of the deceased did not suffer any other injuries.

3. The contents and finding contained in the Report on Medico Legal Postmortem Examination.

4. Photo plan, sketch and key of the outbuildings at 2507 Phomolong Location, Maokeng, Kroonstad.

5. The chain evidence relating to the collection, safekeeping, sealing, examination and findings of ballistic examiners pertaining to the firearm and ammunitions.

6. The ownership of the firearm, his illegal acquisition thereof in that he did not have the permission nor the appropriate legal documents to possess a firearm.

Per agreement between the parties Exhibit A (Post-mortem Report), Exhibit B (Photo plan, sketch and key), Exhibit C (Affidavit of Warrant Officer Andiswa Garane) and Exhibit D (Affidavit of Warrant Officer Mamphaka Salome Sebola) were handed in as uncontested evidence before this court.

Case for the State

[3] The deceased’s younger sister testified that earlier on the fateful day they had a cell-phone conversation. She implored her that she must not divulge her whereabouts to the accused. The accused who was staying with them on the same premises arrived and, she duly obliged. A hysterical accused told their grandmother that should the deceased leave him, he will commit suicide.

[4] Around 21h30 the couple arrived together with their child in a motor vehicle. There was a commotion between them. The deceased was upset and spoke in a loud voice. She told the accused that she cannot be part of a love triangle. Therefore, he must leave her and be with the other woman and they would share responsibilities involving their child.

[5] The deceased alighted the motor vehicle and entered their outbuilding through the door with the child. The accused also alighted, opened the boot and thereafter followed her. The heated argument continued. She heard a loud bang, then the window was opened followed by the accused storming out of the outbuilding running. She went to investigate and found the door locked. She too entered through the window, picked up the child and took her to the main house. She went back and found the deceased sprawled on the floor bleeding profusely from the nose, eyes and ears. She tried to resuscitate her but there was no response.

[6] She was confronted with the version of the accused on a number of issues and she stuck to her earlier testimony and even offered more explanations. She vehemently denied that the couple entered the room through the window. According to her, she was certain that they entered through the door because it made a loud sound when it was opened. She denied flatly that the deceased had a love affair with one Pina while cohabiting with the accused. They were not only sisters but bosom friends and there were no secrets between them. She would have known if that was the case. Other than that, the deceased was a person who was always at home or with her friend. Instead, the accused was a jealous and insecure person.

[7] The evidence of Serame Jackson Mofokeng (who is the father of the accused) is that he was the custodian of the firearm that took the life of the deceased. On 20 May 2017 it was clandestinely removed from his safe located in his bedroom by the accused. The firearm was handed to him by Ms Sebego after collecting it from the police. When he took possession of it, he was convinced that it was safe. At all times the firearm and the magazine were apart. Even on the day that he took it from the accused, after the fact, they were still apart.

[8] During his visit on the day the accused stole the firearm, he was his usual self. After the incident, he was frightened and crying. He noted that he had scratches on his neck. However, his main concern was to hand him to the police.

Case for the Accused

[9] The accused testified in his defence and did not call any witnesses to corroborate his evidence. Briefly, he stated that he became aware that the deceased was still maintaining liaison with her ex-boyfriend. They spoke about the matter and for a while it ceased being a contentious issue between them. The night prior to the fateful day, they had been out celebrating her birthday until the early hours. Upon their return they realised that they have lost the key to the door and they gained entry through the window.

[10] When he woke up, he left to run some errands. All was well between them. On his return the deceased was missing. She was even unreachable on her cell phone. He looked all over the township for her and nothing came of it.

[11] Later in the day he visited his father to discuss impending lobola negotiations. Seemingly it was at that stage that he had some thoughts about the deceased being unavailable because she was spending time with Pina. After their discussions he surreptitiously removed the firearm from the safe. The main purpose was to threaten or scare away Pina from the deceased.

[12] Leaving his parents’ home he proceeded to the home of the deceased’s friend. In her street he met the deceased and others in a motor vehicle. The deceased alighted from it and left with him in the one that he was driving. They went to a number of places before retiring to their outbuilding. Apparently, his earlier mission to threaten Pina was now abandoned. He was relieved that he was reunited with the deceased. The existing peace was soon dashed. The uneasiness was caused by a call made by Pina to the deceased. At that stage they were still driving towards their residence.

[13] Once inside their outbuilding, the situation deteriorated rapidly to the extent that they physically clashed by strangling, pushing and assaulting each other with open hands. During this commotion the firearm which was in the inside pocket of his jacket fell off. They both tried to grab it but he was the first one to get hold of it. The deceased in an attempt to wrestle it from him, grabbed his hand. While they were fighting over it, a shot went off which hit the deceased on the right side of the head. She fell down and he ran away frightened by what he had just witnessed.

[14] Under cross-examination he stated that he cannot remember on which side of the jacket he had inserted the firearm. He could not remember exactly whose finger pulled the trigger that discharged the bullet. He could also not remember the circumstances of their positioning before and at the time the deceased was shot. He disputed the evidence of Ms Matches that he had told their grandmother that he will commit suicide should the deceased leave him. It was his evidence that when he was with the grandmother, she was not at home.

[15] Responding to the court’s questions, he stated that he stole the firearm around 19H00 – 20H00. The discussion about her illicit affair with Pina was only confined to the two (2) of them. Further that they temporarily used the window to gain entry because he believed that they will find the key.

Submissions

[16] Counsel for the State enumerated points arguing that they constitute proven facts. Accordingly, the State has done enough to show that the accused is guilty of the charges preferred against him. In his view, the evidence pointed to his guilt in that he made elaborate plans in advance to acquire a firearm and eventually used it against the deceased. Therefore, he had the requisite animus to commit murder. At no stage did he go around and search for Pina. On the other charges he added that it cannot be justifiable to possess a firearm when the sole purpose to do so is to commit an offence. He pointed out that the accused has admitted all the elements necessary to sustain a conviction on counts two (2) and three (3).

[17] On behalf of the accused, defence counsel argued that factual evidence presented in this matter does not support the basis for premeditated murder. The accused had bought the deceased goodies and flowers to demonstrate his love for her. This is in contrast to the conduct of a person who was on the mission to commit such a heinous crime. He added that despite the accused being in possession of the firearm, it was not proved that it was unlawful. Further that he did not know whether there were ammunitions in the magazine or not.

The Law

[18] It is trite that the standard in criminal trials is proof beyond reasonable doubt. However, as the courts have repeatedly held it does not mean proof beyond any shadow of doubt. The approach formulated in R v Mlambo reads as follows: -

It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused. An accused's claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case. Moreover, if an accused deliberately takes the risk of giving false evidence in the hope of being convicted of a less serious crime or even, perchance, escaping conviction altogether and his evidence is declared to be false and irreconcilable with the proved facts a court will, in suitable cases, be fully justified in rejecting an argument that, notwithstanding that the accused did not avail himself of the opportunity to mitigate the gravity of the offence, he should nevertheless receive the same benefits as if he had done so.[1]

[19] In determining whether the onus of proof has been discharged by the State, the court must follow an integrated approach looking at evidence in totality. This means that evidence implicating the accused must not be assessed in isolation and the same with the evidence exculpating him.[2] The important part requiring emphasis is that all evidence irrespective of the result must be assessed.

[20] It must be borne in mind that the accused person does not bear any onus to convince the court of his innocence. If his version is reasonably possibly true, he is entitled to an acquittal. It appears that the test is whether there is a reasonable possibility that his evidence may be true.[3] The court does not have to subjectively believe him.

[21] The evidence of the state is both direct and circumstantial in nature. Conviction(s) may be sustained purely on circumstantial evidence. Invariably this may be the only crucial evidence available particularly in well planned murder cases. This type of evidence too must be of such quality that it does not infringe the principles of a fair trial as required by law. Where circumstantial evidence is tendered, a clear distinction must be drawn between speculation and conjecture.[4] Importantly the inference drawn must be the only inference. The following are considered to be proven facts: -

1. The accused and the deceased were in romantic relationship which bore a child. On 27 May 2017 their two (2) families were scheduled to meet to discuss their marriage.

2. Despite their impending betrothal they were not in calmer waters as it will be expected. The deceased had given instructions to her sister not to divulge her whereabouts that fateful day. She also did not respond to the accused’s numerous phone calls.

3. The accused who was anxious told her grandmother that he will commit suicide if she leaves him.

4. The accused looked for her throughout the day. Importantly he did not look for her at a friend’s house until late in the day.

5. The accused armed himself with a firearm and a magazine containing six (6) calibre cartridges.

6. He left his parents’ home and headed straight to her friend’s house.

7. A heated argument ensued both in the motor vehicle and in their outbuilding.

8. The deceased was overheard asking the accused to leave her alone and that he must continue with his affair involving another woman.

9. A shot went off hitting the deceased on the right side of her face exiting on the left. The accused left their outbuilding through the window and ran away.

Evaluation of Evidence

[22] This brings us to the weighing of the probabilities and improbabilities of the evidence tendered in this matter. Particularly whether the decision to convict or acquit is sustained by the body of evidence. In executing that function, the court must act in a reasonable manner.

[23] The court has already alluded to a great discomfort that existed between the couple. According to the accused when he left in the morning everything between them was fine. When he came back later, she was not at home and also refusing to take his calls. When that was playing out, he told her grandmother extremely distraught that he will commit suicide should she leave him. The only inference to be drawn is that there was a serious schism between them. The deceased had already indicated that she was leaving him. It was not taken up with her that she was not at home when the accused knelt in front of the grandmother and uttered the statement attributed to him. Therefore, the conclusion is that it happened in the same manner as described by Ms Matches.

[24] According to the accused there were no issues involving Pina on the days preceding 20 May 2017. Therefore, there is no basis for him to conclude that the deceased will be with him. He had not seen him nor had Pina made any contact with the deceased in any manner. Not only that, he did not look for him anywhere. His evidence is that he was looking for the deceased. The thought about Pina only occurred to him when he stole the weapons. He was evasive to state clearly where he went to look for him. His conduct after he was in possession of the firearm does not even remotely link him to Pina.

[25] At home the deceased repeatedly told the accused to leave her alone and continue with his other affair. There is no evidence that the argument was about Pina. When the deceased was speaking in a high-pitched voice the accused was low key and was not heard voicing out his concerns (if any) about Pina. As the one who was apparently cheated on, he would be expected to be the loudest. Instead, it was the deceased who was vocal about his conduct.

[26] Then there is the aspect of him acquiring the firearm with a magazine full of cartridges. Once he was in possession of these weapons, he went straight to the deceased. It was just an hour thereafter that the deceased met her untimely demise. The inescapable conclusion is that the accused acquired these weapons to kill the deceased who was threatening to leave him. It was a calculated plan to kill the deceased and concocted a story to exculpate himself.

[27] The version of the accused is an incredible one in the circumstances and no reasonable person would believe it. Instead, it confirms that he was responsible. Her sister testified that they were confidantes. Not only that, the deceased was always at home and only left to visit her friend. If she was conducting an affair with Pina, she would have been privy to it. On the other hand, the accused was a jealous and insecure partner.

[28] There are more reasons, on the facts, that the version of the accused is rejected. He testified that they had lost the key and were using the window to enter and exit. Despite losing the key there is no evidence that he did anything to look for it or acquire an alternative. Ms Matches testified that the door made a screeching sound when it was opened. She could hear properly when they entered through it. They both entered one after the other. After the deceased had been shot, the doors were locked. The only conclusion is that it is the accused who locked the door before proceeding to shoot the deceased.

[29] The accused testified that the whole episode was a mistake. The question is whose mistake. Certainly, it was not his evidence that the deceased shot herself. Therefore, it can only be him who shot the deceased by mistake. He was at pains to explain exactly how did that occur. He could remember that the firearm was in the inside pocket of his jacket. Pertinently he could not remember on which side. Neither could he remember how the firearm fell out and who pulled the trigger. This clearly indicate that his version of the events is a sham. The probabilities are stacked against him because he was the one who was at all times in possession of the firearm. There is no evidence that the deceased possessed it at any stage. The inescapable conclusion is that he is the one who pulled the trigger.

[30] For the purposes of this judgment the discussion on the other two (2) counts will be lumped together. The only reason is because the accused admitted everything pertaining to these counts. It is unnecessary to consider the question whether the State proved that the firearm concerned was a semi-automatic weapon in a working condition. Also, whether it is the same firearm that killed the deceased and such possession was unlawful in that it was not authorized or made lawful by possession of the necessary license or permit. These were admitted including the fact that he knew that it was unlawful to do so.

[31] His version that he is not well conversant with the workings of the firearm(s) and he did not check or inspect the magazine is in conflict with common sense and must be rejected. He was aware that Pina was heavily built than him and that it will take something as lethal as a firearm to send his message loud and clear to him. Therefore, he knew that the firearm was a weapon that can cause unmitigated disaster.

[32] The witnesses who gave evidence for the State impressed this court. They were coherent, articulate and stuck to their version with ease. In short, they were both truthful and credible witnesses. Ms Matches meticulously took us through the occurrences of the day and despite her apparent painful loss, did not augment her evidence to falsely implicate the accused.

[33] The accused fell short of satisfying the required standard. He was a woeful witness who was extremely evasive on crucial aspects. Most of the details he could not remember because he was either confused, frightened or it happened in a flash. He could not even answer the question as to whose finger pulled the trigger. He displayed acute selective amnesia choosing to forget important details like the pocket that he had put the firearm. He also could not remember whether he took the magazine or not. The uncontested evidence is that it was found on his person.

[34] His conduct after the deceased was shot, is not congruent with his evidence. He simply disappeared without offering any assistance to her. In his words he was afraid of being arrested and evaded it. He struggled to respond to simple questions about what caused the firearm to fall from his pocket. It took several questions to extract an answer and even his attempt to demonstrate it did not make sense. This court rejects his version as not being reasonably possibly true.

Order

[35] The order is as follows: -

35.1. The accused is found guilty of count one (1), two (2) and three (3).

Sentence

[36] It lies within the discretion of this court to impose an appropriate sentence against the accused. Such discretion must be exercised within the bounds of sound principles of fairness and the law. The useful starting point is to follow the triadic sentencing formula laid succintly in the often quoted S v Zinn.[5] The court must consider the personal circumstances of the offender, the crime and interests of society.

[37] In this matter, count 1 and 2 are offences subject to the minimum sentence regime. The Supreme Court of Appeal has set out in considerable detail the approach to be followed in matters of this nature.[6] The clear message is that the ordained sentence should ordinarily be imposed unless substantial and compelling circumstances are found to be present.

[38] This is the law and the Constitutional Court held in S v Dodo[7] that sentence must be proportional if regard is given to all circumstances of the case. The main point is that the prescribed sentence(s) should not be departed for flimsy reasons. This means that convincing reasons must be in existence justifying such a deviation.

[39] The accused is 36 years old, married with two (2) boys aged fourteen (14) and seven (7) respectively. He is employed as a truck driver by a company called Molecule Logistics. He earns a salary of R18 000 to R25 000. He appears before this court as a first offender.

[40] The accused has been found guilty of a crime that is not only topical but a concern to this society. His deeds are the grissly aspects of what is now become known as gender based violence. There is no doubt that in this society, every effort is being garnered to uproot this scourge.

[41] Through his actions, the deceased has lost her life. Her child is without a mother and her family is without a daughter. The accused has not shown any remorse for his actions. Not even his counsel has made submissions to that effect. The society expect the courts to impose harsh sentences against people like the accused. This is the mandate that this court will execute.

[42] It must be clear to all men that days of gender dominance and perpetuation of inequality are over. No one can act without impunity in matters of this nature. The courts will act as the last line of defence against those who have appropriated to themselves more rights than others. The fact that the accused and the deceased were in a love relationship did not entitle him to control the life of the deceased.

[43] This court hold the viewpoint that life imprisonment should not be imposed in appropriate cases where circumstances are of such a nature that it will be disproportionate. In this matter, the accused is a first offender, functioning within a family structure and gainfully employed. He is also relatively young with responsibility to raise his two (2) children. Taking all these into consideration, he can still be rehabilitated.

[44] The sentence to be imposed must be blended with mercy. It must not be of such a nature that it will break him. Each sentence must serve its purpose which includes rehabilitation, retribution, deterrence and prevention of crime. Life imprisonment is long and hard. It removes one from society and in situations like this one, may not achieve the purpose to rehabilitate the accused.

[45] In the preceding paragraphs the sentiments of this court are clear that imposing the minimum sentences will be disproportionate to the crime. However, the accused must be sentenced to long term imprisonment. This will send a message to him and would-be offenders that it is no longer business as usual.

[46] There is no doubt that violent crime using firearms is a menace to this society. In this matter, theft of a firearm ultimately accounted for the life of a young mother. The sentences that will be imposed will be ordered to run concurrently simply because the facts of these counts are inextricably linked to each other.

[47] The following order is made: -

47.1

47.1.1. Count 1 – Twenty years (20) imprisonment.

47.1.2. Count 2 – Ten years (10) imprisonment.

47.1.3. Count 3 – Five years (5) imprisonment.

47.2. It is further ordered that sentences on count 2 and 3 will run concurrently with the sentence on count 1. The effective term of imprisonment is twenty (20) years imprisonment.

47.3. In terms of section 103 of Act 60 of 2000, the accused is declared unfit to possess a firearm.

M.A. MATHEBULA, J

For the State: Adv S Mthethwa

Instructed by: Director of Public Prosecutions

BLOEMFONTEIN

For the accused: Mr D Swanepoel & Mr T Mofokeng

Instructed by: Du Randt and Louw Attorneys

KROONSTAD

[1] 1957 (4) SA 727 (A) at 738 A – C.

[2] S v Van Der Mayden 1999 (1) SACR 447 (W); S v Chabalala 2003 (1) SACR 134 (SCA).

[3] S v V 2000 (1) SACR 453 (SCA).

[4] R v Blom 1939 AD 188 at 202-203; Griffiths v S 2017 ZAKZPHC 13 (6 April 2017).

[5] 1969 (2) SA 537 (A) at 540 G-H.

[6] S v Malgas 2001 (1) SACR 469 (SCA).

[7] [2001] ZACC 16; 2001 (3) SA 382 (CC).