Duo cleared of murder charge

Lebogang Mosikare | Friday September 18, 2015 15:28

The state alleged that Mosimanegape Tuna Mohlohlwa and Oupa Thuso ‘Top Dog’ Solomon acting together with another person not before court killed a Zimbabwean man, Peace Nyoni at Satellite location on August 21, 2009.

However, Justice Zibani Makhwade said that Mohlohlwa is guilty of assault occasioning actual bodily harm contrary to section 247 of the Penal Code.  Though acquitted of murder he will be sentenced for the lesser charge on Monday.

Makhwade also acquitted Solomon of murder and that he was blameless of any other offence.

Passing judgement, Makhwade said each of the accused persons gave unsworn evidence and no witnesses were called to testify on their behalf.

“From the evidence led and the submissions made, the critical question that must be answered before one can proceed to consider the other elements of the offence is whether sufficient evidence was led by the prosecution to link the accused with the death of Nyoni,” said Makhwade.

It was submitted on behalf of both accused persons by attorneys Kesegofetse Molosiwa and Tumisang Mokobi for Mohlohlwa and Solomon respectively that the state failed to lead evidence to prove that the duo killed Nyoni as alleged.

“The doctor came to the conclusion that Nyoni died due to head injuries and associated stab injuries.

 The doctor was emphatic that the fatal injuries were on the head and that the stab injuries were not the cause of the death,” said Makhwade.

Makhwade said it is common cause that there was a conflict between Mohlohlwa and his girlfriend when they met the deceased and his companion.

Nyoni and his companion meddled in between Mohlohlwa and his girlfriend’s affairs, which annoyed him as he was in the middle of admonishing his girlfriend.

Mohlohlwa raised a verbal protest, which resulted in Nyoni and his companion making a u-turn to inquire about what he was saying. Mohlohlwa stated that they appeared aggressive, Makhwade said.

“The deceased and his companion then turned away in the direction of the shops. Mohlohlwa followed them and slapped Nyoni and also threw a bottle at him.  Nyoni and his companion ran away. Mohlohlwa caught up with them and pelted Nyoni with fists. One Mawilard joined him. They punched and kicked Nyoni all over his body,” said Makhwade.

Makhwade said Mawilard went to the games room and asked Solomon to help them since there was a person who wanted to assault Mohlohlwa.  Solomon joined them but Nyoni and his companion had run away.

Another state witness, Kitso Bonyongo said he saw Mohlohlwa kicking and assaulting Nyoni.

From the evidence adduced so far, the medical doctor was of the opinion that the deceased could not have died because of the beatings he received from Mohlohlwa, said Makhwade, adding that it is only speculative that Nyoni’s death could have been caused by use of bricks or other weapons.

“Solomon is even in a better footing. Evidence led is that he actively wanted to assault the deceased. However, there is no evidence that he assaulted the deceased.

He may well have been curious like the other 80 or 90 people who were said to have gathered at the scene. The reasons for his presence can only be speculative. Speculation cannot earn a conviction,” emphasised Makhwade.

However, Makhwade said Mohlohlwa was in a different position adding that evidence that he was searched and assaulted by Nyoni and his companion is false since he was seen pulling and assaulting the deceased and therefore is criminally liable.

Moffat Dick from the Directorate of Public Prosecutions was the prosecutor in the matter.