S v Tshehlo

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: JP Daffue J
• Judgment Date: 23 June 2022
• Court: Free State Division, Bloemfontein
• Docket Number: 08/2020
• Citation: 2022 JDR 1794 (FB)

Daffue J:

I INTRODUCTION:

[1]

A four-year-old girl child was raped and murdered during the winter of 2019 in the Bultfontein township adjacent to the small town of Thaba Nchu. The assailant decided to get rid of the body by disposing it in a pit toilet. The gruesomeness of these deeds are beyond comprehension. It must be the work of a monster. It is recorded that although the case was set down for hearing during August 2020, it could not be finalised during the time allocated as the accused requested a postponement to obtain the services of a DNA expert. Since then the accused had problems to arrange finances and his attorneys even withdrew at a stage, causing the Legal Aid Board to come to his assistance. Eventually the accused had to resign from his employment and

2022 JDR 1794 p2

Daffue J

used his pension benefits to provide for his legal costs. After several postponements the matter was set down for trial in May 2022, but had to be postponed again on the fourth day to 21 – 23 June 2022 due to unforeseen circumstances. The accused's new counsel also requested that certain State witnesses be recalled which caused further delay. Fortunately, the matter can now be finalised.

II THE PARTIES & THEIR LEGAL REPRESENTATIVES

[2]

Adv E Liebenberg appeared for the State. The accused is Mr Sello Joseph Tshehlo, a 36-year-old male person as at the time of the incident, residing in Bultfontein township, Thaba Nchu. Initially Adv MS Mazibuko appeared for the accused on instructions of WJB Attorneys, but in 2022 he was substituted by Adv JJ Buys.

III CHARGES:

[3]

The accused is charged with three counts, to wit:

"1.

Count 1: Kidnapping

In that upon or about the period 21 – 25 July 2019, and at or near Bultfontein Location, in the district of Thaba Nchu, the accused did unlawfully and intentionally take away Naledi Chaka, the minor child of Maria Matshidiso Chaka being the mother, with the intent to deprive the said Maria Matshidiso Chaka of the lawful custody of Naledi Chaka.

2.

Count 2: Contravening the provisions of section 3, read with sections 1, 50, 55, 56(1), 56(A) as amended, 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007, further read with sections 94, 256 and 261 of the Criminal Procedure Act, 51 of 1977, further read with the provisions of section 51(1) of the Criminal Law Amendment Act, 105 of 1997, as amended

In that upon or about the period 21 – 25 July 2019, and at or near Bultfontein Location, in the district of Thaba Nchu, the accused did unlawfully and intentionally commit an act of sexual penetration with Naledi Chaka, a 4-year-old female person, by penetrating her vagina with his penis without her consent and thus raping her.

3.

Count 3: Murder, read with the provisions of s 51(1) and Part 1 of Schedule 2 of Act 105 of 1997

2022 JDR 1794 p3

Daffue J

In that upon or about 21 – 25 July 2019, and at or near Bultfontein Location, in the district of Thaba Nchu, the accused did unlawfully and intentionally kill Naledi Chaka, a 4-year- old female person."

As set out in the indictment the second and third counts must be read with the provisions of s 51(1) of Act 105 of 1997 as amended.

IV THE PLEA, THE PLEA EXPLANATION AND ADMISSIONS

[4]

The accused pleaded not guilty to all three charges and elected not to make any plea explanation.

[5]

Bearing in mind the notice in terms of s 212B of the Criminal Procedure Act ("the CPA") and the accused's response thereto during the pre-trial procedure, I requested Mr Mazibuko to confirm whether the admissions could be admitted formally in terms of s 220 of the CPA. He confirmed this.

[6]

I admitted the notice in terms of s 212B and the reply thereto as exhibits "A" and "B" respectively and the following admissions were duly recorded in accordance with s 220:

"1.

The deceased is Naledi Chaka, a four-year-old female person.

2.

The deceased went missing on 21 July 2019.

3.

The body of the deceased was discovered on 25 July 2019 at house number 7793 Zone 2, Thaba Nchu.

4.

The body of the deceased did not sustain any further injuries from the time of the discovery to the time a post-mortem examination was conducted on her body by Dr J Mohai.

5.

The contents of the post-mortem report by Dr Mohai are correct and correctly reflect the findings of Dr Mohai.

6.

The photo albums and key thereto, depicting the crime scene compiled by Cst Kgomotso Sehularo, is a correct portrayal of what was photographed on 24 and 25 July 2019.

7.

The cause of death of the deceased is: "Blunt face and head injuries."

[7]

Upon acceptance of exhibits "A" and "B", Mrs Liebenberg handed in the following further documents by agreement:

2022 JDR 1794 p4

Daffue J

7.1

The report on the post-mortem examination pertaining to the deceased by Dr John Mohai as exhibit "C";

7.2

A photo album compiled by Constable Sehularo containing 45 photos and a google map as exhibit "D";

7.3

A further photo album prepared on 12 August 2020 by the same photographer, containing 6 photos, as exhibit "E". It is worth mentioning that the aforesaid admission of photo albums (plural) is strictly speaking incorrect. Only one photo album was available when the accused responded positively to the notice in terms of s 212B. However, the further photo album, prepared the week before the trial commenced, was also not in dispute.

V SUMMARY OF THE EVIDENCE:

[8]

The following is a summary of the evidence tendered to the court. I shall deal with the evidence in the chronological order in which the witnesses testified:

8.1

The first witness was Mrs Maria Matshediso Chaka.

i.

She is a 44-year-old woman and the mother of Naledi Chaka. Although the witnesses and legal representatives throughout the trial referred to the minor child as Naledi, I shall herein refer to her as "the deceased". The deceased was born on 7 December 2014 and thus four and a half years old when she was killed. The deceased stayed with the witness at her residential home in Zone 2 (also referred to as Bultfontein 2), Thaba Nchu. The witness knows the accused by his nick name, Bonki. The two of them grew up together. The deceased knew the accused as Uncle Bonki. The witness was aware of the fact that the accused from time to time gave money to the deceased to buy sweets.

ii.

On 21 July 2019 and whilst she was watching TV at the so-called corner house across the street from her home, the deceased and

2022 JDR 1794 p5

Daffue J

some friends, inter alia Diteboho and Omphemetse, were playing in the street in front of Behle's house. At a stage Diteboho approached her whereupon she unsuccessfully enquired about the deceased's whereabouts. This was between 17h00 & 18h00 that afternoon, although she was not quite sure of the time. The deceased was missing. After a brief and unsuccessful search, she reported her missing child to members of the South African Police Service ("SAPS"). The 21st of July 2019 was a Sunday.

iii.

The next morning she took a photograph depicting the deceased to SAPS. The search for the deceased on Monday and Tuesday was fruitless. On Wednesday SAPS discovered clothes belonging to the deceased. She identified the clothes depicted on the photo albums as those that the deceased was wearing the particular Sunday. She was the one that dressed the deceased on the day when she went missing.

iv.

SAPS found the body of the deceased on Thursday evening. The witness confirmed the aerial photos depicted on exhibit "E" and indicated the positions of her house, that of Behle, the corner house, the shop, the street where the clothes were discovered, Bonki's house and the pit toilet where the deceased was found. She did not see the accused on the day that the deceased went missing.

v.

During cross-examination she testified that Diteboho had told her that "a certain brother with short pants and a bald head" removed the deceased from the place where the children were playing on the 21st of July. According to her Diteboho knew Bonki, but she could not explain why he did not refer to the person that removed the deceased as Bonki. According to Diteboho, Bonki did not want him to join them, but indicated that the deceased would come back to them with sweets for him as well. Later on she mentioned that Diteboho did not know Bonki's name, but only knew him by sight. According to the witness she "totally forgot" to whom Diteboho was

2022 JDR 1794 p6

Daffue J

referring. She could not make out the identity of the person with the description given to her.

vi.

On Tuesday the other child, Omphemetse, told her that Untalile's father took the deceased away. In re-examination the witness mentioned that Untalile was just a small boy and it is possible that Omphemetse believed the accused to be his father whilst it is apparent that the accused was his uncle.

vii.

It was finally put to the witness in cross-examination that the accused normally gave money to children in the neighbourhood to buy sweets. The witness could not deny this.

viii.

In May 2022 she was called back at the request of Mr Buys and with leave of the court in order for Mr Buys to put certain statements to her. She testified that she only realised that Diteboho was referring to the accused after the deceased was found in the pit toilet. Diteboho did not mention the name of the person that took the deceased away; merely that he was wearing short pants and his head was shaven clean (or as interpreted: "bald shaven head"). He did not tell her about the colour of the pants. She also asked Omphemetse about the perpetrator and he told her it was Untalile's father. His residence was pointed out, it being his parental home, although the accused was not staying there. She did not go to the accused's parental home as she had already reported the matter to SAPS. When asked who is...