The state has decided that the case against a man who murdered his girlfriend but was set free on a technicality a year into his life sentence must be reinstated for retrial.
North West Director of Public Prosecutions (DPP), Dr Rachel Makhari, announced the decision on Wednesday, describing the release of murderer Atlholanang Mosiane, who was convicted of killing Dimpho Motlodi in 2021, as an unfortunate turn of events.
Sowetan reported on Tuesday how Motlodi's father was shocked to bump into Mosiane in Rustenburg two months after his release, as the family was not informed about it.
In May, the high court released Mosiane after an appeal in which judges found that during his trial, the court was not properly constituted due to the absence of assessors. Assessors in a trial help determine the accused’s fitness to stand trial and assist the judicial officer in understanding the facts of the case.
Sivenathi Gunya, spokesperson for the National Prosecuting Authority in North West, said Makhari will meet Motlodi's family on Friday to outline the process to be followed and also explain what happened in this case. He said Makhari would also formally apologise to the family for not having informed them when Mosiane was released.
“In terms of Section 324 (c) of the Criminal Procedure Act 51 of 1977, this allows for a retrial of an accused whose conviction and sentence have been set aside on appeal due to a technical irregularity in the proceedings.
“The retrial will be before a differently constituted court,” Gunya said.
In March 2021, Mosiane fatally shot Motlodi five times in front of their son in Tlhabane. After the murder, Mosiane handed himself over to the police.
It is regrettable that such did not happen in this case and the NPA profusely apologises for this unfortunate turn of events.
— Sivenathi Gunya, North West NPA spokesperson
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, Paul Moeng, of having 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.
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.
Mosiane sentence was set aside and the family of the deceased was not informed that Mosiane had been released. It was only after Motlodi's father bumped into him in Rustenburg that they became aware that he was a free man.
When asked why the family was not informed, Gunya said:” It is regrettable that such did not happen in this case and the NPA profusely apologises for this unfortunate turn of events.”
Gunya also commended Sowetan's coverage on the matter.
“We must also take this opportunity and commend the Sowetan journalists for the professional manner in which they approached this sensitive story.”
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