National
'Modimolle Monster’ claims unfair trial─── 05:23 Thu, 23 Jul 2015
Johannesburg - The so-called "Modimolle Monster", Johan Kotzé, found guilty and sentenced for the multiple rape, kidnap and attempted murder of his ex-wife Ina Bonette, and the murder of her son Conrad, is claiming his trial was unfair, in an appeal to the Constitutional Court.
Kotzé is serving a life sentence at Zonderwater Prison after being found guilty on July 15, 2013, on seven charges by then-Acting Judge Bert Bam of the High Court in Pretoria, who had commented during sentencing that neither he nor his co-accused had shown any remorse.
Bonette's son was shot in Kotzé's house within earshot of her. She was bound, tortured, and raped, and had to have reconstructive surgery afterwards.
Kotzé was found guilty on one charge of murder and was sentenced to life. He received 10 years for the kidnapping charge, life imprisonment on four charges of rape and 15 years on a charge of assault with the intention to cause grievous bodily harm.
His co-accused Andries Sithole was sentenced to life imprisonment for the murder of 19-year-old Conrad, and 10 years for kidnapping.
Pieta Mohlake and Sello Mphaka were acquitted on the charge of murder, but were convicted of kidnapping and four charges of rape. They got 10 years for kidnapping and each got life for rape, according to an archive report by Sapa.
Two previous appeal attempts, one to the High Court in Pretoria, and one at the Supreme Court of Appeals (SCA), were unsuccessful.
The first was to Bam on September 13, 2013 and was dismissed, with the reasons provided on September 29, 2014.
On October 11, 2013, his lawyer petitioned the SCA for leave to appeal.
This was refused, even though it was unopposed on 12 December 2013, and was signed off on 29 September 2014.
Kotzé finds it ''highly irregular'' for the SCA to dismiss the application without having had regard to the High Court's judgment.
In his affidavit filed at the Constitutional Court he said Bam's reasoning in refusing to grant leave to appeal - that no new aspects had been brought before him - was not the true test of a leave to appeal application.
He said that it had been unfair of Bam to turn down an application to postpone the trial at its start to allow his lawyers more time to prepare. He was unable to enter a plea at the beginning of the case, and so a ''not guilty'' plea was entered for him. This had a bearing on how the case unfolded.
They wanted the postponement because vital information needed at the time was not available, including the case dossier, the record of proceedings at the bail application, as well as social worker's and doctor's report.
Certain psychiatric tests at Weskoppies Hospital were omitted and his clinical psychologist could not finalise her forensic psychological assessment.
His defence for the brutal crime was ''non-pathological accountability''. His psychologist had found that he had ''disassociated'' due to acute stress.
''It is my opinion that a combination of Mr Kotzé narcissistic personality disorder, super-imposed on traumatic psychological injuries, combined with an unmanaged long-standing major depression and untreated and unresolved acute stress disorder resulted in a state of physiological dissociation during his alleged criminal acts,'' Tertia Spangenberg wrote in her assessment of Kotzé.
The refusal to postpone also meant witnesses could not be cross-examined properly by his defence.
The psychologist's assessment could only be finalised later, and the lateness opened a window of opportunity for the State to reopen its case after he, and the clinical psychologist had already testified.
He added that when he and his psychologist testified, the witnesses for the defence were allowed into the court and so could build their case around what was said.
The extent of the protection the State gave his ex-wife Ina regarding the rape charges had also prevented his defence from cross-examining her properly.
Kotzé submits in his affidavit that the court ''apparently found a way not to deal with my defence''.
He said he did not know Bonnet was going to visit him on that day, and so it would have been impossible to plan the events, as the prosecution had claimed.
He had actually tried to set up an appointment with her, but she could not accommodate him and they tried to plan for a meeting the following week.
According to Kotzé she phoned him to say she was on her way to meet him. He claimed in his affidavit that he was actually on his way on holiday, which several other people could corroborate.
He questioned the allegation that he had planned to kill her when he found out she was seeing someone else.
He also disputed the evidence of Bonnette, saying that if the court had considered an interview she had done with Huisgenoot magazine, it could have had an effect on her credibility as a witness.
He said the exclusion of evidence such as this had also denied him the right to a fair trial.
