Two months after a man who confessed to killing his girlfriend was set free on a technicality, having served just over a year of a life sentence, the victim’s father was shocked to run into him on the streets.
Startled by seeing Atlholanang William Mosiane in Rustenburg, North West, and not in prison, where he was supposed to be serving a life sentence for murder, Charles Motlodi immediately called his wife, Winnie, to tell her that he had just seen their daughter’s killer.
At the time, the family was still trying to piece their lives together after Dimpho Motlodi’s murder and was not aware that Mosiane had appealed his case on a technicality and won.
“We knew that he got a life sentence, so we are in a state of shock,” the 62-year-old Winnie said. “We don’t know what to do, we are tired. For two years, we went up and down in court. We don’t even know what steps to take.”
In March 2021, Mosiane, a traffic officer, shot Motlodi five times in front of their son in Tlhabane. After the murder, Mosiane handed himself over to the police. He was released on bail and during the trial he pleaded guilty to murder and received a life sentence in November 2023.
However, Mosiane appealed his conviction and sentence, accusing the magistrate of having had erred by not ensuring that there were assessors during the trial.
He also said the magistrate had asked his lawyer if the appointment of assessors was necessary, to which his lawyer responded, “not necessary”.
According to Mosiane, the magistrate did not inquire further from the lawyer if the section of the law that deals with the presence of assessors during a trial had been properly explained and understood by his client.
I think the matter should have been a review application, not an appeal, because the moment you put up a technicality or say that there was irregularity, you must go the review route. But, for some reason, they [Mosiane and his lawyer] decided to appeal.
— Dr Llewellyn Curlewis
Ronald Hendricks, judge president of the North West high court, and Neo Morei, an acting judge, agreed with Mosiane that the court that tried him was not properly constituted and then freed him in May, just over a year into his life sentence.
“The appeal is upheld. The conviction and sentence are set aside,” the judges said in their judgment.
Winnie said the court’s decision to free Motlodi has shattered the family.
“There is no closure for us; there was an injustice. We will not be doing anything because nothing will bring my daughter back,” she said.
Dr Llewellyn Curlewis, a former prosecutor and advocate who is a senior lecturer in the law faculty at the University of Pretoria, said assessors help in determining the accused’s fitness to stand trial and assist the judicial officer in understanding the facts of the case.
He said while it was true that the magistrate erred by not applying the law properly by ensuring the presence of assessors, the appeal should have been denied because appeals are based on the merits of a case, but in this instance the merits didn’t play a role.
“I think the matter should have been a review application, not an appeal, because the moment you put up a technicality or say that there was irregularity, you must go the review route. But, for some reason, they [Mosiane and his lawyer] decided to appeal.
“The appeal should have been denied because he [Mosiane] was willing to plead guilty and making admissions to confirm that he murdered or was responsible for the murder”, he said.
“I’m so concerned about the fact that this person who walks out scot-free is guilty of murder.”
Curlewis said the next step would be for the National Prosecuting Authority (NPA) to take the matter to the Supreme Court of Appeal (SCA).
“There’s nothing they [the family] can do. This is one of the sad examples where they will probably never see justice unless the director of public prosecutions takes the matter to the SCA. .
Sivenathi Gunya, spokesperson for the NPA in North West, said the prosecutors did a good job in the case by securing a sentence of life imprisonment.
“The matter was set aside based on technicalities, not on merits,” Gunya said. “There’s nowhere in the judgment that speaks about the incompetence of the prosecution. There were no errors from the prosecution team or the NPA.”
Asked why the family was not informed about Mosiane’s release from prison, Gunya said the prosecutor in the matter would normally communicate the outcome of an appeal to the investigating officer, who would inform the victim’s family.
“It is regrettable that such did not happen in this case, and the NPA profusely apologises for this unfortunate turn of events," he said. “The NPA leadership in the North West secured an appointment with the family on August 15. The purpose of the meeting is to explain everything to the family together with the way forward.”
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