S v Mogale (SS 36/2009) [2011] ZAGPJHC 57 (18 March 2011)

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[2011] ZAGPJHC 57
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S v Mogale (SS 36/2009) [2011] ZAGPJHC 57 (18 March 2011)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
SS 36/2009
DATE:18/03/2011
In the matter between:
THE STATE
and
MADUMETJA
JACK
MOGALE
............................................................
Accused
______________________________________________________________
J U D G M E N T
______________________________________________________________
KGOMO, J
:
INTRODUCTION
[1] The accused, a 42 year old male person, then of R417 Waterworks
Section, Zuurbekom, Gauteng, stood arraigned in the High Court,

Johannesburg on 18 counts of kidnapping, 19 counts of rape, 16 counts
of murder, one count of attempted murder, three counts of
robbery
with aggravating circumstances as intended in
section 1
of the
Criminal Procedure Act, 51 of 1977
, one (1) count of fraud,
alternatively theft, one (1) count of theft, one (1) count of assault
with intent to do grievous bodily
harm, one (1) count of sexual
assault and one (1) count of escaping from lawful custody.
[2] Accused was legally
represented throughout the trial. Before he pleaded to the charges
the provisions i.e. import and implications
or extent of sections 51
and 52 of the Criminal Law Amendment Act 105 of 1997 (Minimum
Sentences Act), section 3 read with sections
1, 55, 56-61 of the
Criminal Law Amendment Act (Sexual
Offences and Related Matters) 32
of 2007 as well as the applicable sections of the
Criminal Procedure
Act were
fully explained to the accused and his counsel also
confirmed on record that he had explained same to him earlier on.
[3] Accused pleaded not guilty to all the charges and elected to
remain silent (not to disclose the basis of his defence).
THE CHARGES
[4] The specific allegations levelled against the accused are that:
Count 1: Kidnapping
Upon or about 17 March 2008 and at or near Waterworks settlement in
the district of Westonaria, the accused did unlawfully and

intentionally deprive one HEM of her freedom of movement by luring
her from Westonaria Magistrate’s Court to Waterworks settlement

or area in Westonaria.
Count 2: Rape
Upon or about the date and at or near the place mentioned in Count 1,
the accused did unlawfully and intentionally commit an act
of sexual
penetration with or on HEM by penetrating her vagina with his penis
without her consent.
Count 3: Robbery with aggravating circumstances as intended in
section 1
of the
Criminal Procedure Act read
with
section 51(2)
and
Schedule 2 of the Minimum Sentences Act
In that upon or about the date and at or near the place mentioned in
Count 1, the accused did unlawfully and intentionally assault
HEM
with the intent to rob and did unlawfully and intentionally take a
Nokia 1100 cellphone from her possession, being the property
or in
the lawful possession of the said HEM. Aggravating circumstances as
defined in section 1 of Act 51 of 1977 being present
but undefined.
Count 4: Murder
In that upon or about the date and at or near the place mentioned in
Count 1, the accused did unlawfully and intentionally kill
HEM.
Count 5: Kidnapping
In that during or about 5 to 10 October 2008 and at or near
Anchorville, Lenasia Extension 1 in the district of Lenasia,
Johannesburg,
the accused did unlawfully and intentionally deprive
DEM of her freedom of movement.
Count 6: Rape
In that upon or about the date, and at or near the place mentioned in
Count 5 the accused did unlawfully and intentionally commit
an act of
sexual penetration with DEM by penetrating her vagina with his penis
without her consent.
Count 7: Robbery with aggravating circumstances as intended in
section 1 of Act 51 of 1977 read with section 51(2) and Schedule
2
of the Minimum Sentences Act
In that upon or about the date and at or near the place mentioned in
Count 5, the accused did unlawfully and intentionally assault
DEM
with the intent to rob and did unlawfully and intentionally take a
cellphone from the latter, it being the property or in the
lawful
possession of the said DEM. Aggravating circumstances as defined in
section 1 of Act 51 of 1977 being present.
Count 8: Murder
In that upon or about the date and at or near the place mentioned in
Count 5, the accused did unlawfully and intentionally kill
DEM.
Count 9: Kidnapping
In that during or about the period September 2008 and at or near
Mosquito Valley, Lenasia Ext 1 in the district of Lenasia, the

accused did unlawfully and intentionally deprive an unknown adult
female person of her freedom of movement.
Count 10: Rape
In that upon or about the period and at or near the place mentioned
in Count 9, the accused did unlawfully and intentionally commit
an
act of sexual penetration with an unknown female person by
penetrating her vagina with his penis without her consent.
Count 11: Murder
In that upon or about the period and at or near the place mentioned
in Count 9, the accused did unlawfully and intentionally kill
an
unknown adult female person.
Count 12: Kidnapping
In that during or about the period of November to December 2008 and
at or near West End Brick and Clay in the district of Westonaria,
the
accused did unlawfully and intentionally deprive an unknown adult
female person of her freedom of movement.
Count 13: Rape
In that upon or about the period
and at or near the place mentioned in Count 12, the accused did
unlawfully and intentionally commit
an act of sexual penetration with
an unknown adult female person by penetrating her vagina with his
penis without her consent.
Count 14: Murder
In that upon or about the period and at or near the place mentioned
in Count 12, the accused did unlawfully and intentionally kill
an
unknown adult female person.
Count 15: Kidnapping
In that upon or about 6 December 2008 and at or near West End Brick
and Clay in the district of Westonaria, the accused did unlawfully

and intentionally deprive an unknown adult female person of her
freedom of movement.
Count 16: Rape
In that upon or about the date and at or near the place mentioned in
Count 15, the accused did unlawfully and intentionally commit
an act
of sexual penetration with an adult female person by penetrating her
vagina with his penis without her consent.
Count 17: Rape
In that upon or about the date and at or near the place mentioned in
Count 15, the accused did unlawfully and intentionally commit
an act
of sexual penetration with an unknown female person by penetrating
her anus with his penis without her consent.
Count 18: Murder
In that upon or about the date and at or near the place mentioned in
Count 15, the accused did unlawfully and intentionally kill
an
unknown adult female person.
Count 19: Assault with intent to do grievous bodily harm
In that upon or about 24 December 2008 and at or near Lenasia in the
district of Lenasia, the accused did unlawfully and intentionally

assault NM with the intent to do her grievous bodily harm by making
her drink a substance that made her dizzy or hallucinate.
Count 20: Kidnapping
In that upon or about the date and at or near the place mentioned in
Count 19, the accused did unlawfully and intentionally deprive
NM of
her freedom of movement by luring her from her place of employment at
Lenasia and taking her to a nearby bush.
Count 21: Rape
In that upon or about the date and at or near the place mentioned in
Count 19, the accused did unlawfully and intentionally commit
an act
of sexual penetration with an adult female person, to wit, NM, by
penetrating her vagina with his penis without her consent
and by
false and/or deceitful means.
Count 22: Indecent assault
In that upon or about the date and at or near the place mentioned in
Count 19, the accused did unlawfully and intentionally sexually

violate the complainant, namely, NM, by rubbing a certain substance
with his hands on her vagina without her consent.
Count 23: Fraud
In that upon or about 23 December 2008 and at or near the place
mentioned in Count 19, the accused did unlawfully and intentionally

misrepresent to NM that he was a traditional healer or prophet and
that she should pay him a sum of money, inducing her by such

misrepresentation to pay to him the sum of R400,00 in order for him
to cure her, knowing full well that he was not a traditional
healer
or likewise designation or profession or calling, and therefore not
entitled to be paid the sum of R400,00.
ALTERNATIVE TO COUNT 23: THEFT
In that upon or about the date and at or near the place mentioned in
Count 19, the accused did unlawfully take and steal the sum
of
R400,00, the property or in the lawful possession of NM.
Count 24: Kidnapping
In that during or about the period of December 2008 to January 2009
and at or near Avalon, Lenasia Ext 1 in the district of Lenasia,
the
accused did unlawfully and intentionally deprive an unknown adult
female person of her freedom of movement.
Count 25: Rape
In that upon or about the period and at or near the place mentioned
in Count 24, the accused did unlawfully and intentionally commit
an
act of sexual penetration with an unknown adult female person, by
penetrating her vagina with his penis without her consent.
Count 26: Murder
In that upon or about the period and at or near the place mentioned
in Count 24, the accused did unlawfully and intentionally kill
an
unknown adult female person.
Count 27: Kidnapping
In that upon or about 19 to 26 January 2009 and at or near Oupa Fat’s
Dam, Lenasia Ext 1 in the district of Lenasia, the
accused did
unlawfully and intentionally deprive ST of her freedom of movement by
luring her from her workplace in Lenasia to the
Oupa Fat’s Dam
in Lenasia Ext 1.
Count 28: Rape
In that upon or about the date and at or near the place mentioned in
Count 27, the accused did unlawfully and intentionally commit
an act
of sexual penetration with an adult female person, to wit, ST, by
penetrating her vagina with his penis without her consent.
Count 29: Murder
In that upon or about the date and at or near the place mentioned in
Count 27, the accused did unlawfully and intentionally kill
ST, an
adult female person.
Count 30: Kidnapping
In that upon or about 22 January 2009 and at or near Waterworks in
the district of Westonaria, the accused did unlawfully and
intentionally deprive NN of her freedom of movement by luring her
from the Waterpan Caltex Garage to Waterworks in Westonaria.
Count 31: Rape
In that upon or about the date and at or near the place mentioned in
Count 30, the accused did unlawfully and intentionally commit
an act
of sexual penetration with an adult female person, to wit, NN, by
penetrating her vagina with his penis without her consent.
Count 32: Murder
In that upon or about the date and at or near the place mentioned in
Count 30, the accused did unlawfully and intentionally kill
NN, an
adult female person.
Count 33: Kidnapping
In that during or about January 2009 and at or near Mosquito Valley,
Lenasia Ext 1 in the district of Lenasia, the accused did
unlawfully
and intentionally deprive an unknown adult female person of her
freedom of movement.
Count 34: Rape
In that upon or about the period and at or near the place mentioned
in Count 33, the accused did unlawfully and intentionally commit
an
act of sexual penetration with an unknown adult female person, by
penetrating her vagina with his penis without her consent.
Count 35: Murder
In that upon or about the period and at or near the place mentioned
in Count 33, the accused did unlawfully and intentionally kill
an
unknown adult female person.
Count 36: Kidnapping
In that during or about the period January 2009 and at or near
Anchorville, Lenasia Ext 1 in the district of Lenasia, the accused

did unlawfully and intentionally deprive an unknown adult female
person of her freedom of movement.
Count 37: Rape
In that upon or about the period and at or near the place mentioned
in Count 36, the accused did unlawfully and intentionally commit
an
act of sexual penetration with an unknown adult female person, by
penetrating her vagina with his penis without her consent.
Count 38: Murder
In that upon or about the period and at or near the place mentioned
in Count 36, the accused did unlawfully and intentionally kill
an
unknown adult female person.
Count 39: Kidnapping
In that during or about the period January 2009 and at or near
Anchorville, Lenasia Ext 1 in the district of Lenasia, the accused

did unlawfully and intentionally deprive an unknown child of his/her
freedom of movement.
Count 40: Murder
In that upon or about the period and at or near the place mentioned
in Count 39, the accused did unlawfully and intentionally kill
an
unknown child.
Count 41: Kidnapping
In that upon or about 29 January
2009 and at or near West End Brick and Clay in the district of
Westonaria, the accused did unlawfully
and intentionally deprive an
unknown female person of her freedom of movement.
Count 42: Rape
In that upon or about the date and at or near the place mentioned in
Count 41, the accused did unlawfully and intentionally commit
an act
of sexual penetration with an unknown adult female person by
penetrating her vagina with his penis without her consent.
Count 43: Murder
In that upon or about the date and at or near the place mentioned in
Count 41, the accused did unlawfully and intentionally assault
an
unknown adult female person, thereby causing certain injuries as a
result of which the said unknown female person died at or
near
Leratong Hospital in the district of Westonaria on 19 February 2009
and thus the accused did unlawfully and intentionally
kill the said
unknown female person.
Count 44: Kidnapping
In that during or about the period February to March 2009 and at or
near Venterspost in the district of Westonaria, the accused
did
unlawfully and intentionally deprive DCG of her freedom of movement
by luring her from Extension 5, Simunye to Venterspost
in Westonaria.
Count 45: Rape
In that upon or about the period
and at or near the place mentioned in Count 44, the accused did
unlawfully and intentionally commit
an act of sexual penetration with
an adult female person, to wit, DCG by penetrating her vagina with
his penis without her consent.
Count 46: Murder
In that upon or about the period and at or near the place mentioned
in Count 44, the accused did unlawfully and intentionally kill
DCG,
an adult female person.
Count 47: Kidnapping
In that during or about the period February to March 2009 and at or
near Anchorville, Lenasia Ext 1 in the district of Lenasia,
the
accused did unlawfully and intentionally deprive UES of her freedom
of movement.
Count 48: Rape
In that upon or about the period and at or near the place mentioned
in Count 47, the accused did unlawfully and intentionally commit
an
act of sexual penetration with an adult female person, to wit, UES,
by penetrating her vagina with his penis without her consent.
Count 49: Murder
In that upon or about the period and at or near the place mentioned
in Count 47, the accused did unlawfully and intentionally kill
UES.
Count 50: Kidnapping
In that during or about the period of February to March 2009 and at
or near West End Brick and Clay in the district of Westonaria,
the
accused did unlawfully and intentionally deprive an unknown female
person of her freedom of movement.
Count 51: Rape
In that upon or about the period and at or near the place mentioned
in Count 50, the accused did unlawfully and intentionally commit
an
act of sexual penetration with an unknown adult female person by
penetrating her vagina with his penis without her consent.
Count 52: Murder
In that upon or about the period and at or near the place mentioned
in Count 50, the accused did unlawfully and intentionally kill
an
unknown female person.
Count 53: Kidnapping
In that upon or about 13 March 2009 and at or near Venterspost in the
district of Westonaria, the accused did unlawfully and intentionally

deprive Dimakat Magdeline Tlallo (aka Mamikie) of her freedom of
movement by luring her to a field in Venterspost or Westonaria.
Count 54: Robbery with aggravating circumstances read with section
1 of Act 51 of 1977 as well as sections 51 and 52 of the
Minimum
Sentences Act
In that upon or about the date and at or near the place mentioned in
Count 53, the accused did unlawfully and intentionally assault

Dimakatso Magdeline Tlallo (aka Mamikie) with the intent to rob and
did unlawfully and intentionally take a pair of jeans, a panty,
and a
Samsung SGH-E250 cellphone from her possession, being the property of
or in the lawful possession of the said DMT (aka M),
aggravating
circumstances as defined in section 1 of Act 51 of 1977 being
present.
Count 55: Rape
In that upon or about the date and at or near the place mentioned in
Count 53, the accused did unlawfully and intentionally commit
an act
of sexual penetration with an adult female person, to wit, DMT (aka
M) by penetrating her vagina with his penis without
her consent.
Count 56: Rape
In that upon or about the date
and at or near the place mentioned in Count 53, the accused did
unlawfully and intentionally commit
an act of sexual penetration with
an adult female person, namely, DMT (aka M) by penetrating her anus
with his penis without her
consent.
Count 57: Attempted murder
In that upon or about the date and at or near the place mentioned in
Count 53, the accused did unlawfully and intentionally attempt
to
kill DMT (aka M) an adult female person.
Count 58: Escaping from lawful custody
In that upon or about 14 April 2009 and at or near Brixton in the
district of Johannesburg, the accused; after being lawfully
arrested
and incarcerated, did unlawfully and intentionally escape from lawful
custody.
Count 59: Kidnapping
In that upon or about the period January 2007 and at or near Mosquito
Valley in the district of Lenasia, the accused did unlawfully
and
intentionally deprive ANW of her freedom of movement.
Count 60: Rape
In that upon or about the date and at or near the place mentioned in
Count 59, the accused did unlawfully and intentionally commit
an act
of sexual penetration with an adult female person; to wit NAW by
penetrating her vagina with his penis without her consent.
Count 61: Murder
In that upon or about the date and at or near the place mentioned in
Count 59, the accused did unlawfully and intentionally kill
ANW, an
adult female person.
Throughout this judgment the
charges herein will be referred to as they appear hereinafter i.e.
grouped under their respective
dockets as “
cases
”.
For that purpose the charges are grouped as follows:
- Case 1: Counts 1-4.
- Case 2: Counts 5-8.
- Case 3: Counts 9-11.
- Case 4: Counts 12-14.
- Case 5: Counts 15-18.
- Case 6: Counts 19-23.
- Case 7: Counts 24-26.
- Case 8: Counts 27-29.
- Case 9: Counts 30-32.
- Case 10: Counts 33-35.
- Case 11: Counts 36-40.
- Case 12: Counts 41-43.
- Case 13: Counts 44-36.
- Case 14: Counts 47-49.
- Case 15: Counts 50-52.
- Case 16: Counts 53-57.
- Case 17: Counts 58.
- Case 18: Counts 59-61.
PLEA
[5] Accused pleaded not guilty to all the charges. He was
represented throughout the proceedings by Adv Madondo, duly
instructed
by the Legal Aid Board.
FORMAL ADMISSIONS BY THE ACCUSED
[6] Before the State started leading evidence as well as throughout
the trial, especially at regular intervals before a group
of charges
or a case was dealt with through the leading of evidence, the
accused, duly advised and assisted by his legal representative,

admitted certain facts relating to individual charges in terms of
section 220 of Act 51 of 1977, as amended. Apart from appending
his
signature to the written admissions after they had been read into the
record, the accused also affixed or imprinted his right
thumb print
on the admission document. Both the lead prosecutor and defence
counsels also appended their signatures to the formal
admissions
before they were handed in as exhibits. All the above signatures
were put on paper in my presence and the presence
of the prosecuting
team as well as the accused and his counsel, in open court, all being
present at the same time.
[7] In the formal admissions the accused did not dispute that 17
women and a child were kidnapped; 19 females were raped; 15
females
and one child were murdered; 3 of the victims were robbed of the
items specified in the charges; one female was assaulted
so much that
she nearly died, thus attempted murder having been committed; 2
females were sodomised, acts constituting rape in
terms of the
Criminal Law (Sexual Offences) Act, 2007 (as amended) and that fraud,
alternatively theft as well as one count of
assault with intent to do
grievous bodily harm were committed; all on the dates as well as
places specified in the indictment.
The only charge not formally
admitted was the count on escaping from lawful custody.
[8] What appeared to be in dispute is who had committed or
perpetrated all the acts set out in the charges.
[9] The State was thus set the task of proving whether or not the
accused herein was the perpetrator of all the acts set out
hereinbefore.
[10] The State led the evidence
of 41 witnesses. It also set out to prove through various reports
that the accused before this
Court was causally connected to the acts
and/or omissions as set out in the indictment. I will deal with them
shortly hereunder.
[11] Photo albums compiled of the various scenes of crimes and other
relevant points and places were also handed in and the defence

admitted that they should all be handed in and accepted into the
record of proceedings herein as proof of what they depicted therein.
[12] In addition to
viva
voce
evidence led
through the state witnesses the prosecution herein made use as
evidence of pointing outs by the accused, warning statements
made by
the accused to then (Police) Director, Brig Byleveldt and the
investigations officer, W/O Ungerer as well as Linkage Analysis

evidence by Professor G N Labuschagne of the Police Investigative
Psychology Unit, Criminal Records and Forensic Science Services.
The
State also relied on cellphone records evidence tendered by Captain
Francois Samuel Möller of the Police Priority Crime
Management
Centre. Forensic Analysis Reports were also handed in and explained
by various experts from the Police Forensic and
Scientific Divisions,
notably, Captain Shamil Raman Govan, a Senior Forensic Analyst and
Supt Cornelia Elizabeth Bergh, a Chief
Forensic Analyst. For record
purposes the present day equivalent designation of superintendent is
lieutenant-colonel.
[13] Identification parades were also held where the accused was
identified by some witnesses and others did not point him out,
as I
will set out more fully later hereunder.
[14] According to Prof G N Labuschagne, linkage analysis is used to
identify serial crimes that have been committed by one offender

through the use among others of:
the manner in which the crime
was committed inclusive of the behaviour that is contained in two
distinct components of a crime,
those being,
modus
operandi
and
signature or unique combination of behaviour of the offender; and
the circumstances under which the crimes were committed.
[15] Further information used to determine whether a crime or crimes
are linked to one individual are victimology and locations
of crime
scenes.
[16] According to Prof Labuschagne, linkage analysis does not take
into account physical evidence like DNA, fingerprints or ballistic

results, but instead focuses on the behavioural elements displayed by
the offender during the commission of the crime that are
observable
on the crime scene when it is discovered by the authorities or from
victim accounts.
[17] Linkage Analysis reports
are submitted in support of similar fact evidence. Such linkage
analysis involves:
the gathering of information about the crime;
reviewing the information about the crime and identifying
significant features of each crime individually;
determining any consistencies across the series of crimes; and
compiling a written analysis detailing the conclusions derived.
[18] To arrive at the outcomes envisaged or justified by the facts
Prof Labuschagne relied on the following sources of information:
consultation with the investigations officer(s);
consultation with the prosecuting team;
ex post facto
visits to crime scenes;
examination of docket information;
scientifically accepted research;
previous experience in the investigation of serial crimes; and
Masters and Doctoral degree research as well as post-Doctoral
research into serial murders in the South African context.
[19] The witness (Dr
Labuschagne) received 16 (sixteen) dockets from the police that
according to them had striking similarities
in
modus
operandi
and/or
outcomes. They were:
Case 1: Westonaria CAS 283/01/2010 (Counts 1-4).
Case 2: Lenasia CAS 264/10/2008 (Counts 5-8).
Case 3: Lenasia CAS 797/09/2009 (Counts 9-11).
Case 4: Westonaria CAS 156/12/2008 (Counts 12-14).
Case 5: Westonara CAS 157/12/2008 (Counts 15-18).
Case 7: Lenasia CAS 709/01/2009 (Counts 24-26).
Case 8: Lenasia CAS 711/01/2009 (Counts 27-29).
Case 9: Westonara CAS 582/01/2009 (Counts 30-32).
Case 10: Lenasia CAS 710/01/2009 (Counts 33-35).
Case 11: Lenasia CAS 712/01/2009 (Counts 36-40).
Case 12: Westonaria CAS 690/02/2009 (Counts 41-43).
Case 13: Westonaria CAS 34/03/2009 (Counts 44-46).
Case 14: Lenasia CAS 728/03/2009 (Counts 47-49).
Case 15: Westonaria CAS 228/03/2009 (Counts 50-52).
Case 16: Westonaria CAS 309/03/2009 (Counts 53-57).
Case 18: Lenasia CAS 683/01/2009 (Counts 59-61).
[20] Prof Labuschagne
differentiates between serial murders and sexual murders. Serial
murders occur when someone murders at least
two (2) or more people at
different times and for a primarily intrinsic or psychological
reason. More often than not these murders
have a sexual component to
them. Typically, such offenders perpetrating serial murders do not
stop until apprehended. They sometimes
continue their behaviour in
spite of the fact that there is a public outcry and the police are
already investigating. The underlying
motive for such murderers is
usually a sense of power and control that the perpetrator feels or
experiences when committing such
crimes. Serial murderers tend to
stick to one main method of selections and murdering their victims.
They also tend to keep to
a certain victimology in most instances.
[21] On the other hand, sexual
murder is a murder that has a sexual theme to it, which theme may be
expressed in various ways.
For example, a victim may also be raped
and/or sodomised, the victim may be left naked or partially naked,
the victim’s
genitals or breasts may be mutilated, objects may
be inserted in the victim’s anus or vagina, a victim may be
positioned
or left lying in a sexual position, or sexual objects may
be placed around the victim.
[22] According to Prof Labuschagne, rape may not necessarily be the
sole requirement for a murder to be classified as sexual.
More often
than not the relationship between the offender and the victim is that
of strangers, with the crime happening in an
open veld or public
place. The mechanism or method of death is more often than not
asphyxiation due to strangulation or the use
of blunt force trauma.
[23] The
modus
operandi
of the
offender usually encompasses all behaviour initiated by the offender
to procure a victim and complete the criminal acts
without being
apprehended. These behaviours can vary depending on the experience,
intelligence and motivation of the offender.
Such behaviours can
alter over time as the person, i.e. the offender, adapts to the
circumstances and gains experience and confidence.
As with many
other aspects of human behaviour, the repetitive nature of these
crimes affords the offender a sense of familiarity
and control that
allows him to begin to focus more intently on the sexual and/or
aggressive motive for the crime as a series continues.
[24] Serial murders have a
distinct signature which is sometimes referred to as “
a
calling card
” of
the offender. There would be a specific or unique combination of
behaviours that emerge across two or more offences
to form a pattern.
[25] Serial offenders tend to
have certain geographical areas in which they commit their crimes.
According to Prof Labuschagne
they tend to be relatively consistent
in using these areas to commit subsequent crimes and may, despite
police activity, still
return to these areas to commit further
crimes. Such geographical areas are called “
comfort
zones
”. The
location where the offender commits these crimes is usually chosen
because of some or other association the offender
has with the area.
This association is referred to as “
the
anchor zone
”.
This expert surmises that in serial murders it is usually found that
the offender lives or works near the area in which
the crimes are
committed.
[26] Prof Labuschagne’s report found that between 2008 and
March 2009 the bodies of 15 deceased adult females, one adult
female
who lived to tell the tale and one deceased child were found in the
Westonaria, Venterspos and Lenasia areas. The Lenasia
and Westonaria
cases were grouped nearby each other while the two Venterspos cases
were also found to have occurred nearby each
other.
[27] In most of the cases the
suspect used the weapons that were at the scene of crime, such as
items of the victim’s clothing
as ligatures, which was the case
in 11 (eleven) of the cases; a brick; a sharp object or his bare
hands for manual strangulation.
Strangulation appears to have been
used in 13 (thirteen) of the cases under the expert’s review as
indicated either by
post
mortem
reports or the
presence of a ligature around the victim’s neck as was the case
in 11 (eleven) of the 13 (thirteen) cases.
In Counts 53-57 the victim
herself described how she was bludgeoned by the accused herein.
Blunt force trauma was used in 4 (four)
of the incidents. In Counts
15-18 (Case 5), 30-32 (Case 9) and 53-57 (Case 16) both strangulation
and blunt force trauma were
present. South African serial murderers
have been known to alter their method of killing during a series of
murders. This is ascribed
to experimentation, unforeseen events that
take place during the actual murder, such as victim resistance or the
appearance or
presence of a passerby or a change in
modus
operandi
that leads to
a change in the method of murdering. However, generally,
strangulation is typically the most commonly used method
of causing
death in serial murder cases.
[28] 14 (fourteen) of the
incidents under review had a sexual theme as evidenced by either
partial nakedness of the victim or indications
of vaginal or anal
rape. Prof Labuschagne concluded that a sexual theme tends to be
consistently observed in a series of murders
where the murders are
sexual in nature because this has to do with the offender’s
inner motive for targeting his victims,
hence the consistency.
[29] In these particular cases
under review by the expert, the suspect’s signature in the
series was the targeting of adult
black females for sexual murders
involving strangulation, usually by ligature, and leaving their
partially naked bodies in or around
the West End Brick and Clay near
Lenasia, Lenasia or Venterspos. In all cases the victims went
missing in broad daylight. The
geographical patterns of the crime
scenes pointed to the crime scenes in the West End Brick and Clay
area being in significantly
close proximity of each other and all of
them being in close proximity of the Lenasia crime scenes. The crime
scenes in the Venterspos
area are in significantly close proximity to
each other. That is why this expert arrived at a conclusion that the
patterns of
body recovery sites are consistent with serial murder
behaviour.
[30] About the doctrine of
victimology, Prof Labuschagne stated that in these cases, all victims
were adult black females, with
the single exception of the one child
in Counts 36-40 (Case 11). He states further that serial murderers
often tend to keep to
a particular victimology. In these instances,
he submitted, the category of victim (black adult females) was
selected as it seemingly
had some or other relevance to the offender.
Such relevance may be hatred that had developed within the offender
for the victim
group as a result of his own life experiences, which
may be manifested in perceived maltreatment by women. That normally
precipitates
the targeting of this group.
[31] It was this expert’s
overall conclusion that the crimes as set out in Counts 1-18, and
24-61 were undoubtedly the work
of the same offender based on
geographical location of the crime scenes, the sexual theme of the
incidents, the presence of ligatures
around the victims’ necks,
the general signature and the victimology.
[32] The accused did not contradict or gainsay any of this expert’s
evidence. No questions were put to the witness to dispute
any of the
theories propounded and conclusions arrived at.
CATEGORIES OF TRANSGRESSION/CASES INVOLVED
[33] From the evidence led herein the cases the accused faced can be
categorised as follows:
Cases in which direct evidence was presented.
Cases in which circumstantial evidence was presented.
Cases in which circumstantial evidence was presented and in which
the State also relies on similar fact evidence.
Cases in which the State relies on purely similar fact evidence.
DIRECT EVIDENCE CASES
[34] Within this group or category falls 3 (three) cases namely:
Case 6 i.e. Counts 19-23 (Lenasia CAS 878/12/2008).
Case 16 i.e. Counts 53-57 (Westonaria CAS 309/03/2009).
Case 17 i.e. Counts 58 (Brixton CAS 357/04/2009).
CASE 6: COUNTS 19-23 (LENASIA CAS 878/12/2008
)
[35] The undisputed facts are that on 24 December 2008 the accused
accosted or met the complainant herein, NM at some shopping
complex
in Lenasia and they ultimately ended at her workplace where she was
also residing as a domestic worker.
[36] What is in dispute is whether the accused kidnapped, assaulted,
raped, sexually assaulted the complainant and also defrauded
her.
The accused’s case is that he and the complainant were lovers
and had consensual sexual intercourse, not in some bushes,
but at the
backrooms at the latter’s workplace. He further contended that
the complainant willingly drank the tea he brewed
for her as part of
a healing process and that she also legitimately paid him for
services rendered, i.e. for healing her.
[37] Evidence on behalf of the
State on this case and counts was led through the complainant
herself; Elizabeth Motlanthe, her
co-worker; Mimi Mathabatha, her
sister and Elizabeth Mathabatha, her mother. The State also relied on
the warning statement recorded
by Brigadier Byleveldt on 14 April
2009 at Brixton Police Station. Evidence of a pointing out by the
complainant of the accused
at an Identification Parade held on 29
March 2009 was also led.
[38] NM testified that she met the accused for the first time at a
shopping complex in Lenasia where she had gone to purchase
some
Christmas clothing. As she walked out of the store on her way home
she met the accused who inexplicably and accurately told
her that she
was having a problem with her suitor or lover and also suffered from
a serious womb ailment. He offered to help her
get well. Because he
was so convincing she trusted him and gave him R150,00 to purchase
some tea leaves and other necessary ingredients
to brew a healing
concoction. He was sporting a ZCC badge and this made her believe he
was a real prophet or priest as he claimed.
He accompanied her to
her place and promised to come back the following day.
[39] Indeed the following day he
promptly arrived at her workplace. She invited him into her room
after asking her room-mates
to stay outside while she was busy with
the “
priest
”.
He brewed the tea and asked her to drink it. At that stage he
convinced her to give him some more money for his services
upon which
she gave him R400,00 in cash.
[40] After drinking the brew
which was laced with some unknown species of leaves, she started
feeling strange or dizzy. He then
convinced her that her strange
feeling was as a result of the fact that the brew was busy exorcising
the evil spirits that were
making her sick. He then implored her to
go with him to the nearby bushes so that when the spirits escaped,
they should not hide
inside her room only to find their way into her
again. She agreed and he led her to a nearby bush. There he
convinced her to take
off her pants and underwear and lie “
missionary
style
” on her
back, naked waste downwards. He then started rubbing some tea leaves
on her exposed vagina, telling her that this
was part of the
treatment.
[41] He then told her that in
order to exorcise the “
tokolosh
”
from within her he must also have sex with her. As she verily
believed this “
Man
of God
” was
going to help heal her she agreed and he penetrated her even though,
due to her dizziness, she could not feel anything
but could see what
he was doing.
[42] She further testified that she prayed and exhorted Jesus Christ
to help her as the accused was having sexual intercourse
with her
under mysterious circumstances. She was not her real self.
[43] After he had finished the accused left her there in the veld
and she tottered back to her place of abode.
[44] For the rest of the day she
was feeling and acting so strange that her co-worker, Elizabeth
Motlanthe, phoned her family at
Lebowakgomo in Limpopo to come and
fetch her. Her sister, Mimi Mathabatha arrived on 25 December 2008
and took her to Lebowakgomo.
Upon recommendation from clinic and
hospital people whom she consulted on 26 December 2008 she reported
the matter to the police.
[45] On 29 March 2009 she attended an Identification Parade where
she pointed out the accused as the person who molested her.
She was
adamant that she would not have paid the accused any monies or
allowed him to have sexual intercourse with her had she
known that he
was an imposter and fraudster.
[46] It was put to this witness
that it will be the accused’s version that the two of them had
had an intimate relationship
since the latter part of the year 2007
and that he thus knew of her problems after he saw her experiencing
some unnatural discharge
after having sex with her at his shack or
house, and had been treating her for this ailment since. He claimed
that on the day
in question he had consensual intercourse with her
inside her room at her workplace residence and thereafter left. She
vehemently
denied these.
[47] Elizabeth Motlanthe
corroborated the complainant’s version of 24 December 2008 on
which date, she said, the latter came
to their room with a man
referred to as “
the
reverend
” or
priest who was there to perform some rituals for her. She positively
identified the accused as that reverend or priest.
She also
corroborated the complainant’s version of acting funny by
stating that when she returned home 2 to 3 hours after
leaving with
the accused, she was not looking well: she vomited and acted like a
crazy or mad person, hence she phoned her people
who came to fetch
her the following day.
[48] Her sister Mini Mathabatha also corroborated the complainant’s
version on what happened until the latter opened a case
at
Lebowakgomo Police Station.
[49] Her mother, Elizabeth Mathabatha also corroborated the
complainant’s version. Incidentally, both of them worked for

the same employer as domestic servants and stay in the same backroom
where the whole incident started or was developed further.
The elder
Mrs Mathabatha categorically denied having been in love with another
older man who later allegedly became the complainant’s
lover as
well, as claimed by the accused.
[50] In paragraph 31 of the warning statement taken down by Brig
Byleveldt on 14 April 2009 reference is made, allegedly by the

accused, of going to a park with the complainant herein and then
using force to hold her down and then having sexual intercourse
with
her against her will. It is so that the accused is denying any
knowledge of the warning statement. The matter will be dealt
with and
evaluated later on.
CASE 16: COUNTS 53-57 (WESTONARIA CAS 309/03/2009
)
[51] In this case undisputed
evidence is that a complainant (I will conveniently refer to as M )
was given a lift by a man on 13
March 2009 who then eloped or drove
away with her to a field near the Westonaria Sewage Farm where he
(the man) assaulted her with
a brick and also strangled her until she
lost consciousness. The man then raped her anally and vaginally and
then left her for
dead. Her cellphone, a Samsung SGH 250 with IMEI
No. 35615202990760 which was among the articles missing when she
regained consciousness
some 24 hours later was found by the police at
the accused’s house when he was arrested on 27 March 2009.
[52] What is in dispute is whether the accused kidnapped, robbed,
raped and attempted to kill the complainant. The accused also

disputes that he was wearing the ZCC badge and sangoma beads, all at
the same time and that he was using a cream white Volkswagen
Golf
with registration numbers KSV 378 GP on that day. He further contends
now that the Identification Parade at which M pointed
her out, which
was held on 3 June 2009 at Brixton Police Station was not
procedurally correct. He also contests the DNA results
and denies
making a warning statement before Brig Byleveldt.
[53] On behalf of the State M
testified that on 13 March 2009 she was offered a lift by the accused
in his cream white Volkswagen
Golf in which one MS, a local
acquaintance and neighbour, was a passenger. She was on her way from
Venterspos to Westonaria town.
That is when she noticed that the
accused wore a ZCC badge and sangoma beads, which aspect is very
unusual, according to her.
After dropping MS and her two children at
her home, their car proceeded towards Westonaria. After MS had
alighted from the Golf,
she left the back seat where she was
initially seated and climbed in the front passenger seat. Along the
way the accused told her
that he was a ZCC member who heals people.
He also told her he was a prophet and that he could see that she was
destined to be
married to or by a rich man but that before all that
could happen, he needed to cleanse her of the “
bad
things
” which
were keeping her from meeting this rich man. He told her that in
order to remove the “
bad
things
” he must
bath her in a certain tea concoction that he would prepare for her.
[54] When she declined his offer
to “
heal
”
her the accused drank a substance from a bottle which she believed or
thought was alcohol. When they reached the outskirts
of Westonaria
instead of turning left towards the town centre he turned right and
accelerated the car so that she could not alight
until he stopped it
at some thicket near the municipal sewage farm. He then swiftly
alighted and hastened to her side of the car
before she could alight,
pulled her out of the car and started to molest her. She resisted and
fought back and at the same time
ripped off the sangoma bead necklace
from his neck, scattering the beads around the area. The accused then
bashed her head with
a stone or brick, also strangling her at the
same time until she lost consciousness. She regained her
consciousness about 24 hours
later, i.e. the following day. She was
naked and her pants, underwear and Samsung SGH 250 cellphone were
missing. She covered
her lower body with her jersey and managed to
get help from a worker at the sewage works who phoned for an
ambulance.
[55] At the hospital she was told that she had been raped and
sodomised. Her head and face were so severely disfigured that she

had to spend a long time in hospital unable to speak and had to
undergo facial reconstruction surgery.
[56] After the long hospital recovery she attended an identification
parade during which she pointed out the accused as her molester.
She
also identified her cellphone which the police told her was retrieved
from the accused. Proof that the cellphone was indeed
hers was that
photos of herself and members of her family were downloaded from it.
[57] On behalf of the accused it was put to this complainant that he
(accused) will come and deny ever giving her a lift on 13
March 2009;
that on that day his Volkswagen Golf was out of order and at home;
that he was not wearing sangoma beads around his
neck and that on
that day he was at his sister’s place at Thokoza near Boksburg
or Alberton. It was part of his defence
also that on this date he
was wearing a Roman Catholic Church rosary and he also stated that he
never drank alcohol in his life.
[58] Dr Chakela-Mashele who did
the gynaecological examination on the complainant confirmed that she
was penetrated in the vagina
and anus. She also collected samples for
a sexual assault kit and had same sent to the Forensic Science
Laboratory for analysis.
Her evidence was not disputed.
[59] It was also put to this
witness on behalf of the accused that on the day of the
identification parade she was brought by two
female trainee police
women to the cell where he was incarcerated or held where the two
trainee police women pointed him out to
her, hence she could
positively identify him at the parade line-up later that morning. She
denied it.
[60] MS corroborated the
complainant’s version of events in as far as the happening at
Venterspos are concerned. She had
thumped a paying lift or occasion
from a Golf sedan driven by a man who later picked up the
complainant, who incidentally was her
neighbour. This man was
wearing a ZCC badge and he told her that he was a ZCC prophet as well
as a traditional healer. He told
her that he could see that
something bad or unbecoming would occur or come between her and her
husband. He tried to turn onto
a deserted road leading to the
Venterspos Golf Course but turned back to the main road when he
observed the presence of traffic
police in the vicinity. He then
told her that her belief saved her. He said this to her after she
told him during his earlier
pontifications that she was a firm
believer in God Almighty and did not indulge in prophesies and
orations or practices of the
occult.
[61] She corroborated the
complainant’s version about how they drove away with her in his
car. Because something seemed
odd or out of place with the man she
memorised and later wrote down the registration plates of the Golf
being “
RVS 378
GP
”.
[62] That evening, upon
discovering that the complainant did not return home, she approached
her family with the information she
had about the person last seen
with her and went to the police with them to report her missing. She
described the driver of the
Volkswagen Golf as being dark in
complexion as well as what he was wearing. She also gave a
description of the car that was used,
that fitted the accused cream
white Volkswagen Golf. The registration plate number she gave to the
police differed with that of
the accused in only one respect: She
gave the first letter as “
R
”
whereas the accused’s car’s registration number starts
with a “
K
”.
The rest of the letters and numbers were identical with the
accused’s car’s.
[63] She could not identify that
man at the identification parade at Brixton Police Station because
she was too scared. She however
made a dock identification of the
accused during her testimony in court.
ARREST OF THE ACCUSED
[64] By this time that M was
assaulted, kidnapped, raped, sodomised and robbed, the local police
were already grappling with a
spate of mysterious deaths around
Lenasia and Westonaria. One Captain Manthata of Westonaria Police
Station was investigating
these strange and frightening occurrences
when she received a report about the experiences of M. She had
received information
about the suspect from MS. She (captain
Manthatha) happened to mention the description of the man who
molested M, the car that
he drove and the fact that he was wearing
both a ZCC badge and sangoma beads to Constable Mohlokwane who
immediately remembered
that the accused fitted the description very
well. Const Mohlokwane also remembered how she had in the recent
past investigated
another case involving the accused and noticed how
he also had a ZCC badge as well as sangoma beads at the same time.
The colour
and make of the car allegedly used by M’s molester
peculiarly resembled one she once saw being driven by the accused
after
one of his appearance at court in Westonaria in January 2009.
On that date she was passing by when the accused called her and
boasted
to him how well he was doing in life, also pointing to his
new pride and joy, a cream white Volkswagen Golf sedan.
[65] She knew where the
accused’s shack was situated and she took Capt Manthata for a
reconnaissance mission. Outside the
shack or house they saw a cream
white Golf with registration numbers KVS 378 GP which fitted the
description of the car from which
M was last seen being driven in.
[66] On the night of 27 March
2009 Capt Manthata led a contingent of police and arrested the
accused at his shack where he was
found in bed with his girlfriend,
Charlotte Manaka. Various items including a Samsung SGH 250
cellphone, multi-coloured sangoma
beads, twine, women’s
clothing and underwear were found. According to Capt Manthata the
accused was duly notified of the
reasons for his arrest and read out
his constitutional rights. When she (Capt Manthata) asked the accused
where he got the Samsung
SGH 250 cellphone from he allegedly told him
that he picked it up in the street at Westonaria on a day when he was
going to purchase
or collect a car spare part for his car at a shop.
[67] Under cross-examination it
was put to Capt Manthata that W/O Ungerer, the investigating officer
in this case, was in fact
leading the police contingent that came to
arrest him. It was further put to Capt Manthata that it was w/o
Ungerer who kicked the
door of his shack down that night of his
arrest. Capt Manthata vehemently denied this. She testified that
only after the accused
had been arrested and handcuffed did she phone
the case investigator, W/O Ungerer, who arrived just before Brig
Byleveldt also
arrived – both quite some time later.
[68] Capt Manthata explained
further, upon a question why MS’s registration number started
with an “
R
”
whereas the accused’s car registration started with a “
K
”
that it may have been a genuine mistake as some numbers may be eroded
and thus mistakeable.
[69] Capt Manthata was also adamant that no used or unused condom
was found at the accused’s home during his arrest. She
refuted
the accused’s contention that the positive DNA results the
State was relying on in this case was derived from a used
condom
confiscated by the police during his arrest.
IDENTIFICATION PARADE BY M
[70] It was conducted by Capt
Van Schalkwyk from the Organised Crime Unit in Johannesburg. It was
held on 3 June 2009 at Brixton
Police Station. Capt Van Schalkyk
testified that the parade was held according to the law and
procedures and that none of the
accused’s constitutional rights
were infringed. With the consent of the accused the
pro-forma
SAP 329 form and notes of the identification parade were accepted in
the record of proceedings herein. Trainee Constables Elizabeth

Skosana and Nobuhle Sibiya guarded the witnesses going to the parade
and coming therefrom respectively. In their testimonies the
trainees
reiterated that they did not know who the suspect(s) were at the
parade as they were taken from where they were working
and assigned
their duties at the parade. They further testified that they only met
the witnesses when the latter walked into the
offices where they were
to guard them respectively. They further testified that as trainee
constables they were not allowed to
go to the police cells without a
mentor or supervisor being present and for a good reason at that.
Accordingly, according to them,
it was impossible on the day for them
to have accompanied a witness that was going to participate in an
identification parade to
the cells before the identification parade
started.
[71] According to the SAP 329 form as well as admissions by the
accused, the latter was accompanied by his own attorney at the

identification parade and the attorney was present throughout the
parade and never caused any complaint to be recorded by the officer

in charge.
CELLPHONE EVIDENCE
[72] As stated above, when the
accused was arrested, a Samsung SGH E250 cellphone belonging to the
complainant that disappeared
when she was molested was found in his
house. There is evidence that was not contradicted that when data
was downloaded from the
cellphone by duly qualified experts photos of
the complaint as well as those of her family members were found. Cell
C phone records
were also obtained and properly accepted as evidence
unopposed. Detailed billing from the accused’s cellphone
number shows
that the latter’s sim card was inserted into the
complainant’s missing cellphone on the same date that she was
spirited
away by the accused and molested, i.e. 13 March 2009 at
18h34.
[73] The accused never disputed
this evidence, neither did he offer any explanation as to how his sim
card happened to be in the
complainant’s handset on the day of
her disappearance.
BEADS
[74] Beads of a similar nature,
colour and size as those that were found at the scene of M’s
rape and sodomy were also retrieved
from the accused’s house on
the night of his arrest. Expert evidence confirmed that they were
similar. During cross-examination
of the expert witness it was put
to her on behalf of the accused that the accused would deny knowledge
of such beads. However,
when the accused’s girlfriend
Charlotte Manaka testified, she confirmed to the court that apart
from using a ZCC badge, the
accused was also simultaneously using or
wearing sangoma beads similar to those that were found at his house
and which were also
similar to those found at the scene of M’s
molestation. She was not contradicted hereon at any stage when she
testified
as a state witness. Surprisingly, when the accused
testified in his defence he stated that the sangoma beads found at
his house
during his arrest belonged to Charlotte Manaka who used
them for traditional healing purposes. This was never put to her when
she
was in the witness stand.
DNA EVIDENCE
[75] There has been no challenge to the chain of DNA evidence that
was led by Capt Govan of the Forensic Science Laboratory of
the South
African Police. Such evidence was that, except for one case that was
investigated after the accused was arrested, all
the samples of
articles, condoms and crime scene sex kits were collected by the
police at the scenes of the murders well before
the accused was
suspected of any serial rape or murder. The accused did not gainsay
that DNA evidence was obtained from the bodies
or victims, the
specimen properly sealed, referenced, transported and received by the
Forensic Science Laboratory in Pretoria and
also analysed and
compared.
[76] The sexual kit samples of
the complainant, M, in this case and charges were also properly
collected, packaged and sent for
analysis. A comparison with a
control blood sample obtained from the accused found that the
accused’s male DNA profile was
present in the sexual assault
kit sample. Despite this evidence of a “
match
”
the accused did not contradict it or come up with a cogent
explanation why his DNA profile was there. He persisted with
his
general assertion that the police used a used-condom found at his
place on the day of his arrest to frame him for all the offences
set
out in the indictment, with the exception of the escaping charge of
course.
[77] In as far as these Counts 53-57 are concerned, evidence is also
to the effect that the forensic analyst received the sexual
assault
kit of this complainant on 18 March 2009, i.e. 9 days before the
accused was arrested. Obviously, the accused’s
sole defence
disputing DNA linkage to these charges as being tainted falls flat.
[78] It was never put to Capt Govan that he was the one who
contaminated the samples that he received for analysis.
WARNING STATEMENT BY BRIG BYLEVELDT
[79] There is evidence that on 14 April 2009 W/O Ungerer requested
Brig Byleveldt, his commanding officer and also commissioned
officer,
to interview the accused and take down his customary warning
statement.
[80] In this warning statement the accused allegedly talked about
the facts of the charges relating to M at paragraph 8E thereof.
In
that paragraph the accused mentions kidnapping the complainant, how
he manhandled her from the car, how he assaulted her with
a brick,
and how he strangled her until she lost consciousness. He then
mentions raping her.
[81] What is important is that before the evidence of this warning
statement was tendered, State counsel, Adv Moonsamy mentioned
to the
court that the document contains admissions that may amount to
confessions by the accused. She wanted to hear from the
accused’s
counsel, Adv Madondo, if he would like to have a
trial-within-a-trial. Adv Madondo intimated to the court that
he was
in possession of the said warning statement and that the accused did
not require a trial-within-a-trial. He categorically
stated that the
warning statement may be admitted into evidence and that
admissibility thereof as a document was not in issue as
everything
around it will be resolved by credibility.
[82] Cross-examination that followed from the accused’s
defence counsel hereon was that he was not the author of that warning

statement and that on the date in question a bunch of documents were
thrust under his nose and he was ordered to sign. He signed
the
first page and then decided to refuse to sign the rest of the
documents.
[83] What is interesting is that
the accused nonetheless admits giving the answers contained in the
last part of the warning statement
immediately after the main body of
the statement. Those answers confirmed that the accused was not
induced or influenced or forced
to give the information recorded iin
the warning statement.
[84] According to Brig Byleveldt, at the time he interviewed the
accused, he did not have possession of or insight into the case

dockets involved. He was only recording what the accused was saying.
More importantly, in respect of this case involving M, the
police
had not yet interviewed her as she was still in hospital, unable to
speak due to the injuries she sustained on 13 March
2009.
CASE 17: COUNTS 58 (BRIXTON CAS 357/04/2009
)
[85] The facts of this count are
that as on 14 April 2009 the accused was incarcerated in the Brixton
Police cells awaiting a court
appearance at the Protea Magistrate’s
Court on 16 April 2009. Somehow accused conjured to leave or
disappear from the police
cells at Brixton and was found in the
toilet of the Brixton Magistrate’s Court cells, hiding.
[86] The State alleges the accused escaped from lawful custody
whereas the accused’s defence is that on that day the police

came to their cell (cell 3) and ordered all inmates to go to court at
Brixton Magistrate’s Court, hence he walked out with
them.
[87] The evidence of the State
was led through the mouths of W/O Nkosinathi Mhlophe, the officer in
charge at the Brixton Police
cells; W/O Elias Madonsela, the court
orderly at Brixton Magistrate’s Court as well as Capt Mosa
Shezi.
[88] W/O Mhlophe testified that on this date W/O Madonsela came to
fetch those prisoners or inmates that were to attend court
at Brixton
Magistrate’s Court. A list had been compiled of these inmates
and the names recorded in the Brixton Court Occurrence
Book. There
were also corresponding J.15 charge sheets for each name to ensure
that the right people were booked out to court.
[89] They called names, one by
one, and an inmate would answer to his name and step out of the cell.
Among the names called out,
there was no
Madumetja Jack
Mogale
. The cell(s) were then
locked and the inmates taken to court where they were lodged in the
court cells awaiting calling into court
when same was in session
later.
[90] After the inmates had been escorted to court W/O Ungerer who
was the investigator in the accused’s case came to book
him out
for investigations. He was nowhere to be found. The (Ungerer and
Capt Shezi) hastened to the court cells and with the
help of W/O
Mhlophe and Mandonsela they called out the accused’s name from
the door but he did not respond. Capt Shezi entered
the court cell
and found the accused sitting on a toilet seat at the back of the
cell, fully clothed and with a cap drawn over
his eyes, according to
him, clearly hiding. He was taken back to the police station.
[91] It was later discovered
that the inmate who was called out for court was one Gerald Moloi,
not the accused. That when Moloi’s
name was called out the
accused stepped out impersonating him or presenting himself as Gerald
Moloi, thus ending up at court.
[92] According to the police witnesses, the nett effect of the
accused’s action was that he would either step forward at
court
as Gerald Moloi and be remanded on warning as the real Gerald Moloi
was indeed remanded on warning that day. Alternatively
all names
would be called out and he would remain in the cells. Because his
names were not in the court criminal record book and
court cell
occurrence book he would then be set free.
[93] The State’s case is
that this was a completed escaping from lawful custody.
CIRCUMSTANTIAL EVIDENCE CASES
[94] There are three (3) cases
herein where the State relies for a conviction on circumstantial
evidence, namely:
- Case 9: Counts 30-32.
- Case 12: Counts 41-43.
- Case 18: Counts 59-61.
[95] Before I deal with the evidence led in those counts and/or
cases it is necessary that I deal shortly with the aspect of what
is
meant by circumstantial evidence.
[96] Circumstantial evidence is sometimes described as a network of
facts around the accused. It may come to nothing. On the
other hand
it may be absolutely convincing. The law does not demand that one
should act upon certainties alone. In our lives,
in our acts, in our
thoughts, we do not deal with certainties: we ought to act upon just
and reasonable convictions founded upon
just and reasonable grounds.
The law asks for no more and the law demands no less.
Compare:
Benzani
Ndumalo v The State
Case
No. 450/2008
[2009]
ZASCA 113.
[97] When dealing with circumstantial evidence the enquiry before
the court is whether on the evidence before it, it could reasonably

come to a conclusion that it was indeed the accused who perpetrated
the offences in question.
See:
S
v Nduna
2011 (1) SACR
115
(SCA).
[98] This involves a
determination of whether the two cardinal rules of logic in
R
v Blom
1939 AD had
been satisfied:
firstly, whether the inference sought to be drawn is consistent with
all the proven facts because if not, then the inference
cannot be
drawn; and
secondly, whether the proven facts are such that they exclude all
other reasonable inferences from them save the one sought to
be
drawn. If the proved facts do not so exclude all other reasonable
inferences, then there must be a doubt whether the inference
sough
to be drawn is correct.
See also:
S
v Sesetse
1981 (3) SA
353
(A) at 369-370.
S
v Morgan
1993 (2) SACR
134
(A) at 172.
[99] Circumstantial evidence in
itself may at times furnish direct proof of issues in question. In
S
v Reddy
1996 (2) SCR 1
(A) Zulman AJA (then) held among others that circumstantial evidence
is not necessarily weaker than direct evidence. That in certain

circumstances it may even be stronger or of more value than direct
evidence.
See also:
S
v Shabalala
1996 (2)
SA 297
(A) at 299.
[100] Murphy J however,
cautioned in the unreported (by then) case of
State
v J R Nyauza
: Case
No. CC97/07 decided on 5 December 2007 that circumstantial similar
fact evidence must not be used to promote a forbidden
line of
reasoning such as: the accused is a bad man and therefore must be
guilty, or, the accused is a murderer and therefore
should be
convicted of a murder charge he is facing.
[101] Rather, the circumstantial
evidence must be relevant in some way or other in that its peculiar
nature cloaks it with a higher
degree of relevance warranting its
reception and reliance upon it.
[102] As Lord Herschell puts it
in the landmark English decision of the Privy Council in
Makin
v Attorney-General for New South Wales
(1894)
AC 57
(PC) at 65:
“
It
is undoubtedly not competent for the prosecution to adduce evidence
tending to show that the accused has been guilty of criminal
acts
other than those covered in the indictment, for the purpose of
leading to the conclusion that the accused is a person likely
from
his criminal conduct and character to have committed the offences for
which he is being tried. On the other hand, the mere
fact that the
evidence adduced tends to show a commission of other crimes does not
render it inadmissible if it is relevant to
an issue before the jury;
and, it may be so relevant if it bears upon the question of whether
the acts alleged to constitute the
crimes charged in the indictment
were designed or accidental, or to rebut a defence which would
otherwise be open to the accused.
”
[103] Inferences to be drawn when circumstantial evidence is
utilised must be carefully distinguished from conjecture or
speculation.
There can be no inference lest there are objective facts
from which to infer other facts which it is sought to establish. If
there
are no positive proven facts from which the inference can be
made, the method of inference falls away and what is left is mere
speculation or conjecture.
See:
Caswell
v Powell Duffryn Association Collieries Ltd
1940 AC 152
at 169 per Lord Wright.
[104] In order to decide whether
the State has proved its case beyond reasonable doubt based on
circumstantial evidence, the court
need to take into account the
cumulative effect of the evidence before it as a whole. It is not
advisable or let me say, it is
impermissible and an incorrect
approach to consider the evidence piecemeal.
See:
S
v Reddy, supra
.
S
v Snyman
1968 (2) SA
582
(A) at 589F.
S
v Hassim
1973 (3) SA
443
(A) at 457H.
S
v Zuma
2006 (2) SACR
191
(W) at 209B-I.
[105] I now deal with those charges where circumstantial evidence
played a major part.
CASE 9: COUNTS 30-32 (WESTONARIA 582/01/2009
)
[106] On 23 January 2009 the body of one NN was found at Waterworks
in Westonaria. The deceased had been bludgeoned with a rock
that was
found at the scene. She was also strangled with her own pair of
black pants which were still around her neck. The State
argued that
the death of the deceased could be ascribed to the accused through
circumstantial evidence. The accused denies kidnapping,
raping and
murdering the deceased herein.
EVIDENCE TENDERED BY THE STATE
[107] Nozuko Maqanta testified
that she was the deceased’s friend and they worked together as
sex workers at and around the
Caltex Garage on the corner of the N12
and R28 freeways near Westonaria. They also shared sleeping or
living quarters in Westonaria.
[108] On 22 January 2009, a man whom she identified as the accused
before this Court stopped near her at the garage area driving
a cream
white Volkswagen Golf. He wanted to take her for business to his home
which he said was at Zuurbekom. She was not interested.
At his
request she called the deceased to him. They discussed and later the
deceased left with the accused. She made a dock identification
of the
accused as she, according to her, was not called to any
identification parade. Two (2) days later one Capt Shivalo stopped

his car at her place of work and told her about the body of an
unidentified black woman that was found in the area and by the
description of the clothing the deceased was wearing this witness
immediately knew that it was the body of N. She told Capt Shivalo
as
much. A month or two later she again saw the accused in his
Volkswagen Golf at the Caltex Garage and she recorded the
registration
numbers of his car on a piece of paper. That number was
KSV 378 GP.
[109] During January 2010 W/O
Ungerer traced her and obtained her statement concerning the
disappearance of her friend. According
to her, by coincidence or as
fate would have it, as W/O Ungerer was fiddling with a docket, at a
later date, a photograph fell
out of it and she immediately
recognised the person on that photograph as the accused. She told
W/O Ungerer about it.
[110] The accused’s
defence, as put to this witness during cross-examination, was that at
no stage at all was he ever at
or near that Caltex Garage and that he
never dealt with prostitutes. He further averred that the car the
witness saw could not
have been his because at or during the period
the witness mentioned his Volkswagen Golf was out of order and was at
a mechanic’s
place. He also denied going back to the Caltex
Garage one to two months after 22 January 2009 although he would from
time to time
use the road that passed there.
DNA EVIDENCE
[111] With regard to the case
involving this deceased again there has been no challenge to the
chain of DNA evidence. The nett
results hereof is that it was never
disputed on behalf of the accused that after the DNA specimen or
evidence was obtained from
the bodies or victims including the
deceased herein, the specimen were properly sealed, referenced,
transported and received by
the Forensic Science Laboratory. Among
the items found at the scene of the murder was a used condom.
Specimen taken from its
inside were properly analysed and compared
with the control blood sample that was obtained from the accused
after his arrest on
27 March 2009 without any contamination or the
occurrence of any irregularity. The conclusion or results of the
analysis was that
the male DNA profile that was found in the condom
matched the DNA profile of the accused.
[112] As in the case of complainant M, the accused’s line of
defence here is that the police obtained his DNA profile from
a used
condom confiscated by the police at his house on the day he was
arrested. This defence cannot stand because as Capt Govan
testified,
he received the sexual assault kit of the deceased herein on 28
January 2009, long before the arrest of the accused
on 27 March 2009.
There was no allud-ment of contamination of DNA evidence by Capt
Govan and the state case is still to the effect
that no used condom
was found at the accused’s home on the night of his arrest, a
fact confirmed by the accsued’s girlfriend
conclusively as
mentioned hereinbefore.
CELLPHONE USE AND TOWER OR REPEATING STATIONS
[113] Capt Möller’s
evidence on the charges relating to this deceased was that on the
date of the latter’s disappearance,
i.e. 22 January 2009 at
16h00 cellphone records from Cell C (accused cellphone service
provider) showed that a call was made from
the accused’s
cellphone which was transmitted through the Jachtfontein cellphone
tower or repeating station. He surmised
that a call being made from
the vicinity of the corner or junction of the N12 and R28 highways
will be picked up by the Jachtfontein
tower or repeating station.
Acceptance of this evidence places the accused or the cellphone user
in the vicinity of the scene where
the deceased was last seen on the
date of her disappearance. The accused has at no stage alluded to
this Court that another person
was using his cellphone on this day.
The court thus accepts that he was its user at 16h00 on 22 January
2009 and thus inferentially
was at or around the area where the
deceased NN was collected from. The accused’s denial of being
there or thereabout is
thus highly improbable and can be safely
rejected as false. The evidence of W/O Ungerer about that area
especially the location
of the Caltex Garage corroborates this
aspect. It was not contradicted.
CASE 12: COUNTS 41-43 (WESTONARIA CAS 690/02/09
)
[114] On 29 January 2009 an unknown black woman was found near West
End Brick and Clay factory in Westonaria. She was badly assaulted
on
her head and face but still alive. She was also naked. She was taken
to hospital. A Dr Kashif examined her on 30 January 2009
and also
collected samples which she sent to the Forensic Science Laboratory
for analysis. Her gynaecological examination of the
woman pointed to
her having been raped. The woman died of her injuries on 19 February
2009 without regaining consciousness and/or
the police interviewing
her. The State submits that the accused kidnapped, raped and so
severely assaulted the woman that she
succumbed to the injuries.
Also that the accused raped her. The accused denies all the
allegations.
[115] Capt Govan from the
biological unit of the Forensic Science Laboratories testified that
after receiving on 19 March 2009,
the sexual assault kit and specimen
collected by Dr Kashif he analysed it and compared it with the
control blood sample of the
accused without any contamination or the
occurrence of any irregularity. The end results were that the male
DNA profile that was
found in the sexual kit samples matched the DNA
profile of the accused.
[116] It is reiterated that no challenge had been mounted to the
acceptance into the record of the DNA chain evidence.
[117] The accused’s defence that a used condom found and
confiscated at his house on the date of his arrest is also
far-fetched
and fallacious because at the time the sexual assault kit
was received for analysis the accused was not arrested.
CASE 18: COUNTS 59-61 (LENASIA CAS 683/01/09
)
[118] On 27 January 2009 the
body of ANW was found at Mosquito Valley in Lenasia. The deceased
was strangled and the ligature,
a piece of blue fabric, was still
around her neck. She had also been raped. The accused denies having
kidnapped, raped and murdered
the deceased.
[119] The State led the evidence of Edward Ysiliso Molahlehi, the
deceased’s uncle as well as DNA evidence.
[120] Edward Molahlehi testified
that a few weeks before the disappearance of her niece, i.e. the
deceased, he visited her home
at her bidding as she was ill. She was
residing at Thembalihle Squatter Camp or Informal Settlement. Upon
his arrival there he
saw a man who was sporting a ZCC badge on his
chest and whom he identified as the accused before this Court,
leaving the deceased’s
house by going towards the backyard
side. He was entering through the front entrance. Out of curiosity
he (the witness) went
to check where the accused went out at the back
and discovered that there was no gate or entrance or exit at the back
of the yard.
He concluded that the accused should have vaulted a
fence at the back. This witness also made a dock identification of
the accused.
[121] Later that month the deceased went missing.
[122] On 17 February 2009 he identified her body at the Diepkloof
Government Mortuary.
[123] The accused’s version during cross-examination was that
he was never at the deeased’s home during January 2009
or at
any time.
DNA EVIDENCE
[124] As stated above Capt Govan’s evidence on the chain of
DNA evidence was never disputed by the defence. This Court can
thus
safely accept that the accused admitted that where DNA evidence was
obtained from the bodies of the deceased or victims including
this
deceased, the specimen was properly sealed, referenced, transported
and received by the Forensic Science Laboratory.
[125] According to Capt Govan
from the biological unit of the Forensic Science Laboratory the
samples in the sexual assault kit
collected by Dr Klepp during the
autopsy on the body of the deceased was properly analysed by him and
compared with the control
blood sample of the accused without any
contamination or the occurrence of any irregularity. The results
reached or arrived at
were that the male DNA profile that was found
in the sexual assault kit matched the DNA profile of the accused.
[126] The accused riposte hereto was the issue he raised in other
cases: that a used condom was taken from his home on 27 March
2009
when he was arrested and that the DNA profile taken therefrom were
used to frame him.
[127] In this case there is
evidence that a used condom was found by the police about five (5)
meters from where the body of the
deceased was lying. It was sent
for analysis and comparison with the control blood sample of the
accused. The results revealed
that there was no match between the
DNA profile collected from the condom and the accused’s. The
explanation herefore is
found in the testimonies of W/O Ungerer, Capt
Govan and Prof Labuschagne: their explanations are that the general
area where the
deceased’s body was found was frequented and
used by sex workers or prostitutes and that consequently a strong
possibility
existed that this condom may belong to another person
other than the perpetrator of the crimes set out in the indictment
herein.
CASES INVOLVING CIRCUMSTANTIAL EVIDENCE AND SIMILAR FACT EVIDENCE
[128] There are three (3) cases or 10 counts in which the State
relied on a combination of circumstantial evidence and similar
fact
evidence. They are:
- Case 1: Counts 1-4 (Lenasia CAS 283/01/2010).
- Case 8: Counts 27-29 (Lenasia CAS 711/01/2009).
- Case 13: Counts 44-46 (Westonaria CAS 34/03/2009).
[129] I have already explained
in brief what circumstantial evidence means and entail. For the
uninitiated I will also give a
brief outline of what similar evidence
is.
[130] The use and/or admission
into the record of proceedings of similar fact evidence is closely
aligned to rules of relevance
and admissibility as seen within the
Law of Evidence. This principle is aptly illustrated by Innes CJ in
R v Trupedo
1920 AD 58
where the learned Chief Justice put it at 62 as follows:
“
The
general rule is that all facts relevant to the issue in legal
proceedings may be proved. Much of the law of evidence is concerned

with exceptions to the general principles … But where its
operation is not so excluded it must remain as the fundamental
test
of admissibility.
”
[131] Similarly, similar fact
evidence is closely linked to and with evidence as to character. The
topic of similar fact evidence
involves a consideration of the
requirement that evidence, if it is to be received, must be logically
relevant and of sufficient
probative force to warrant its reception
despite any practical disadvantages that might be caused by admitting
it. English law
principles regarding character evidence also play a
big role when similar fact evidence is considered or used. In
Hoffman and
Zeffertt :
The
Law of Evidence
4
th
Edition, the respected authors put it as follows at p 52:
“
…
Similar fact evidence, it will be seen, is only exceptionally
admissible. It will be received, exceptionally, only if it is,
first,
sufficiently relevant to warrant its reception and, secondly,
if it has a relevance other than one based solely upon character.
”
[132] In
Omega,
Louis Brandt et Frere SA and Another v African Textile Distributors
,
1982 (1) SA 951
(T) Nicholas J held among others that similar fact
evidence should be received only where it is not oppressive or unfair
to the
other side and the other side has had fair notice of it and is
able to deal with it.
[133] The prosecution may not adduce similar-fact evidence of
improper conduct by the accused on other occasions if its only
relevance is to show that the accused is of bad character and is,
therefore, likely to have committed the offence. However, such

similar fact evidence will be admissible if it has a relevance other
than by way of this forbidden line of reasoning if its probative

force is sufficiently strong to warrant its exceptional reception
despite any practical disadvantages and despite its potentiality
to
prejudice the accused.
See:
DPP
v Boardman
(1975) AC
421
(HL)
[1974] 3 All ER 887.
[134] In
S
v Nduna (supra
)
Ebrahim AJA held among others that whilst similar fact evidence is
admissible to prove the identity of an accused person as the

perpetrator of an offence, it cannot be used to prove the commission
of the crime itself. The honourable court added that this
legal
principle operates, in addition, to exclude such similar fact
evidence from being confirmatory material on another count.
The
learned judge proceeded to elucidate the above principle by stating
that:
“
18.
However, the application of the rule is not to be confused with the
situation where the rule is invoked to establish the cogency
of the
evidence of systematic course of wrongful conduct, in order to render
it more probable that the offender committed each
of the offences
charged in respect of such conduct. C S v Gokool
1965 (3) SA 461
(N)
at 475A-D). The appellant’s argument, if it were to be
accepted, would be tantamount to excluding evidence of the
modus
operandi
of the appellant
merely because he had been charged with more than one count of
robbery.
”
[135] In
S
v Gokool
1965 (3) SA
461
(N), Harcourt J said the following at 475D-F:
“
It
is clear that each count brought against an accused person must be
considered separately and that the admissibility of evidence
on each
count must be tested as if that count had been the only count against
such accused -
R v
Buthelezi
,
1944
T.P.D. 254.
But this does not prevent material, which could be
admissible under the rules relating to similar fact evidence, from
being received
merely because a plurality of counts is involved in a
case.
”
[136] The above rules and principles speak to the circumstances of
this case and similar fact evidence was thus quite relevant.
[137] I now proceed to evaluate
the evidence on the cases or counts I -4 mentioned above.
CASE 1: COUNTS 1-4 (LENASIA CAS 283/01/2010
)
[138] On 17 March 2008 the
deceased, HEM, went missing after attending a court case in
Westonaria as a witness in which the accused
was one of the people
charged. Her body was found on 14 May 2010 and due to advanced
decomposition was only identified positively
through parental DNA
analysis. She had been murdered and the accused is charged with
kidnapping, robbing, raping and murdering
her. The accused denies all
these allegations or charges.
[139] Four (4) witnesses and evidence of cellphone use were utilised
by the State to substantiate the charges.
[140] The first witness, Betty
Maluleke, testified to the effect that she was the deceased’s
friend and on 17 March 2008
they attended a court case at Westonaria
Magistrate’s Court as witnesses and the accused and others were
standing arraigned
on fraud charges. After the case was postponed
she and the deceased boarded a train going in the direction of Soweto
via Lenasia.
The accused also boarded the same train, sitting with
them among other passengers in the same coach.
[141] She testified further that the deceased and the accused even
had a conversation together and the deceased even asked for
an amount
of R2,00 from the accused.
[142] The deceased told her that
she was going to alight at Waterworks Station instead of her usual
railway station that was further
ahead and that despite her (the
witness’s) protestations about her not being comfortable with
her (deceased) alighting at
Waterworks the deceased persisted and
alighted from the train at Waterworks. Her explanation was that she
wanted to do some purchases
at Lenasia. The accused also alighted
after the deceased at the same railway station.
[143] When the deceased did not arrive home that day her people
confronted her about her whereabouts and she told them about the
last
time she saw her when she alighted from the train together with the
accused. The deceased people confronted the accused and
he professed
lack of knowledge of her whereabouts.
[144] During cross-examination it was put to this witness on behalf
of the accused that he did travel in the same train with the
deceased
and the witness but after he and the former had exited the train he
did not know where she went to thereafter.
[145] Vincent Sambo a relative
of the deceased testified that after reporting the disappearance of
the deceased to the police,
he went with them (police) to the
accused’s place to confront him about the deceased’s
disappearance. He was together
with one Kennel Ndlovu and the latter
confronted the accused about the deceased’s whereabouts.
According to Sambo the accused
told the enquiring party that after he
and the deceased left the train the deceased went to Lenasia and he
went in the opposite
direction. This witness confirmed the
deceased’s cellphone number as being 073 283 7779.
[146] Kennel Ndlovu testified
that he questioned the accused after receiving information from Betty
Maluleke about them disembarking
off the train together at
Waterworks. He stated further that the accused became nervous or
angry but definitely jumpy and denied
ever being with the deceased on
the day of her disappearance. Accused was arrested for kidnapping
but charges were withdrawn by
the prosecutor and investigations
continued.
[147] The next witness, Frans Aphane, testified that he attended the
Westonaria Magistrate’s Court on 17 March 2008 as a
co-accused
of the accused herein in that case. After the case was postponed, as
was usual or the case during other court appearances,
he offered the
accused a lift in his car as he was also going to where the accused
also resided – being Waterworks. The
accused this time
declined the offer, telling him that he was going to Germiston and as
such would use a train. This witness confirmed
that the accused wore
a ZCC badge as well as sangoma beads at the same time. He also stated
that the accused had told him that
he (accused) was a prophet who
could heal illnesses and ailments. The accused even showed him a
pamphlet in which he advertised
or enumerated the illnesses, ailments
or conditions he specialised on. For the record, such an advert or
pamphlet was handed in
as Exhibit CM4 without any objection to it
being raised by the accused or his defence counsel. It was one of
the items found and
confiscated from the accused’s home during
his arrest.
[148] I should mention here that throughout this trial the accused
would have refresher consultation his counsel with the leave
of this
Court. I assumed it was to give and receive further and proper
instructions because these consultations would be at the
tail end of
cross-examination.
[149] On their next court appearance at Westonaria the deceased’s
people confronted the accused about the deceased and he
told them
that he did not know where she was. He also told this Court that the
fraud charges were so serious and the disappearance
of key-witnesses
so frightening and suspicious that the state witnesses (complainants)
in that case even begged the magistrate
to withdraw the charges
against all the accused as they also feared they would disappear
without trace. He added to his testimony
and stated that he himself
confronted the accused about the whereabouts of the deceased since
they left together on the day of
her disappearance. According to this
witness the accused told him that he left her somewhere at Lenasia as
he was about to board
a train to Vereeniging.
[150] Accused disputed this witness’s testimony in as far as
it involved the deceased.
[151] Klaas Moipolai corroborated Aphane’s story.
CELLPHONE RECORDS
[152] Capt Möller testified that after studying the cellphone
records he had received from MTN Cellular Services he established

that the IMEI number of the deceased’s cellphone with sim card
number 073 283 7779 was 35230001315240 and that she had been
using
it from December 2006 until 17 March 2008 i.e. until the day of her
disappearance.
[153] A study of the
IMEI-mapping of the accused’s cellphone and number indicated
that the accused had inserted his own sim
card in the deceased’s
cellphone and used it between 15h15 and 15h51 on the date of the
deceased’s disappearance.
[154] It should be mentioned that according to evidence led, the
postponement of the case at Westonaria Magistrate’s Court
on 17
March 2008 was done in the morning.
[155] The rape charge will be dealt with under similar fact
evidence.
CASE 8: COUNTS 27-29 (LENASIA CAS 711/01/2009
)
[156] On 19 January 2009 the deceased herein, ST, went missing
during her lunch break at her workplace. Her body was found on
26
January 2009 with a ligature around her neck. She had been strangled
and also raped.
[157] What is in dispute is whether it is the accused who kidnapped,
raped and murdered the deceased.
[158] The State led the evidence
of two witnesses, her work colleague, Bongiwe Thulisiwe Ntsele and
Zacharia Tshoeu Molakeng.
[159] According to Bongiwe Ntsele she and the deceased worked for a
Dr Shabangu to distribute advertisement pamphlets. On 19
January
2009 she and the deceased operated at different sides of the public
parking lot of a shopping complex in Lenasia. During
lunch time the
deceased came towards her where she was positioned near the
employer’s surgery accompanied by a male person.
That person
was the accused before this Court. The deceased informed her that
she was leaving with the accused to a church where
she wanted the
bishop to pray for her so that she can be healed of her disease. She
however assured her that she would be back
by 14h00. The accused and
the deceased then left together.
[160] Before the two left together the deceased entered their place
of employment to leave her bag and cellphone, leaving the
accused
with her outside. That was when, according to this witness, she
conversed with the accused. In fact the accused started
prophesying
to her about her family problems. She cut him short by telling him
that as a saved Christian she did not believe in
such pagan
prophesies.
[161] The deceased did not return at 14h00 as promised.
[162] Later that afternoon she
(witness) saw the accused around her working precinct and confronted
him about the whereabouts of
the deceased, whereupon the accused
responded that he did not leave with her (deceased) but only
accompanied her to a car that
was to take her to the church she
wanted to attend.
[163] When it dawned on her that the deceased was in fact nowhere to
be found or seen, she went to tell the deceased’s husband
all
that had happened.
[164] This witness was positive about the accused’s identity:
she described his facial features and even mentioned that
he had
lacerations or scars on both his forehead and lower lips. A
photo-album already accepted or received as an exhibit in this
Court
with the blessing of the accused’s defence counsel was shown to
the witness and she pointed at the areas in the accused’s
face
where there were clearly visible scars or lacerations on the photos
in the album.
[165] The accused’s cross-examination was geared at telling
the witness and this Court that he did not have injuries and

consequently scars on his forehead and lip. In fact the accused came
up with a different answer in his evidence-in-chief which

contradicted all these that was put to the witness Bongiwe Ntsele.
[166] Zacharia Tshoeu Molakeng confirmed the evidence of Bongiwe
about how the accused was dressed. Accused’s further defence

was that at the time of this incident his legs were incapacitated by
injuries he sustained during the previous years. Bongiwe
Ntsele was
adamant that the accused was not using a stick to walk: she said he
was walking freely, with no stick as support.
CASE 13: COUNTS 46-44 (WESTONARIA 34/03/2009
)
[167] On or about 22 February 2009 the deceased herein, DCG went
missing after leaving home to travel to Carletonville for a funeral.

Her body was found on 1 March 2009. She was strangled with a ligature
and she had been raped.
[168] The accused also denies
all charges of kidnapping, rape and murder.
WARNING STATEMENT TAKEN BY BRIG BYLEVELDT
[169] In the warning statement the accused is said to have made
before Brig Byleveldt at Brixton Police Station, on 14 April 2009
the
accused makes mention of picking up a black woman with a light
complexion who was on her way to Carletonville. He also described

the route he followed after turning off the main route, away from the
direction to Carletonville. The end destination he mentioned
or
described corresponds exactly with and to the place where the body of
the deceased herein was found – murdered and raped.
In the
warning statement the accused is heard to state that he raped or had
sexual intercourse with that woman against her will
twice before he
assaulted and left her there at the scene in the veld.
[170] I will deal with this matter further when I evaluate the
totality of the evidence in the light of all the probabilities,

circumstantial evidence, similar fact evidence as qualified and
elucidated by the linkage evidence tendered by Prof Labuschagne.
SIMILAR FACT EVIDENCE
[171] I have already outlined in
brief what similar fact evidence is and how relevant it is in cases
like this where the court
has to do with a serial rapist(s) or
murderer(s). To add thereto, similar facts are admissible if they
are relevant and evidence
can be relevant only if a reasonable
inference may be drawn from it about a fact in issue. Similar fact
evidence is not just about
criminal propensity. There must be a
logical connection between the
facta
probans
(similar
facts) and
facta
probanda
(facts to be
proved). Such connection may be found through the improbability of
coincidence and the more striking the similarity
of the events are,
the more probable the possibility of the coincidence would be.
[172] Lord Wilberforce put it
more succinctly in the House of Lords decision in
Director
of Public Prosecutions v Boardman (supra)
when he said:
“
…
the basic principle must be that the admission of similar fact
evidence is exceptional and requires a strong degree of probative

force. The probative force is derived from the circumstance that the
facts testified to by the several witnesses bear to each
other bear
such a striking similarity that they must, when judged by experience
and common sense, either all be true or have arisen
from a cause
common to the witnesses or from pure coincidence. The jury may,
therefore, properly be asked to judge whether the
right conclusion is
that all are true, so that each story is supported by the other.
”
[173] With the above quotation setting the tone a trier of fact may
be within his rights and supported by the law to come to the

following summation:
If all the proven facts give rise to a logically consistent
inference with a high degree of probability that a crime was
committed,
why should such facts be disregarded or doubted?
It follows from this line of reasoning that in cases in which the
identity of the criminal is the key issue, facts proven in
relation
to other charges establishing a propensity to commit the offence in
question, may in the circumstances of the case be
so highly relevant
to the question of identity as to be admissible.
This would be particularly so
where the proven facts points to a signature behaviour, ritualistic
conduct and a peculiar
modus
operandi
that is
crystallised.
[174] Proof of an abnormal
propensity on the part of an accused is highly relevant to, and
probative of, the issue of identity
where the signature attending
various crimes indicates the presence of that abnormal propensity.
The accused’s criminal
disposition established by his previous
conduct also may be relevant to identify him as a killer.
See:
R
v Straffen
[1952] 2 All ER 657
(QB).
[175] In the above English case
the accused was charged with the murder of a little girl who had been
strangled without any attempt
to sexually assault her or conceal the
body. There was no incriminating evidence against the accused except
the fact that he was
known to have been frequenting the area where
the death occurred at the time the murder took place. The
prosecution used similar
fact evidence to the effect that some time
earlier the accused had strangled two other little girls in very
similar circumstances.
This evidence was held admissible on the
ground that it was relevant to identity of the perpetrator who was
found to be the accused.
[176] Our highest court of appeal, presently the Supreme Court of
Appeal, has also concluded that evidence of abnormal propensity
is
not only admissible but in and of itself will be sufficient to be the
basis of a conviction provided that the inference is logically

consistent with and the only reasonable inference to be drawn in the
circumstances.
See:
S
v D
1991 (2) SACR 543
(A).
[177] In the above case the
appellant committed a series of rapes and robberies in a particular
area within a period of about four
(4) months. The crimes committed
by an unidentified assailant were committed in the same area and in
the middle of the series
of similar crimes. The same pattern of
conduct which was followed by the appellant in all the other crimes
was also followed by
the unidentified assailant. These crimes were
all committed during the mornings or early afternoon when the victims
would likely
be alone. His
modus
operandi
was the same
and he had a predilection for wrist watches. On the basis of the
linkage analysis evidence the judge concluded that
cumulatively
viewed, the similarities in all the crimes of the unidentified
assailant and those of the appellant were sufficiently
striking to
corroborate the other circumstantial evidence pointing to the
appellant as the culprit, thereby signifying a strong
endorsement by
the Appellate Division of the admissibility of linkage analysis
evidence and similar fact evidence.
[178] Grosskopf JA put it among
others as follows:
“
The
facts surrounding the rapes and robberies proved to have been
committed by the appellant in the present case bear such a striking

similarity to the facts of the rape and robbery committed by the
unidentified assailant, that evidence of the former should, in
my
opinion, be admissible as similar fact evidence.
”
SIMILAR FACT EVIDENCE AS ELUCIDATED BY LINKAGE ANALYSIS EVIDENCE
[179] In the following instances the State relied on purely similar
fact evidence as elucidated or explained or coloured by linkage

analysis evidence:
- Case 2: Counts 5-8 (Lenasia CAS 264/10/08).
- Case 3: Counts 9-11 (Lenasia (CAS 797/09/08).
- Case 4: Counts 12-14 (Westonaria CAS 156/12/2008).
- Case 5: Counts 15-18 (Westonaria CAS 157/12/2008).
- Case 7: Counts 24-26 (Lenasia CAS 709/01/09).
- Case 10: Counts 33-35 (Lenasia CAS 710/01/09).
- Case 11: Counts 36-40 (Lenasia
CAS 712/01/09).
- Case 14: Counts 47-49 (Lenasia CAS 728/03/09).
- Case 15: Counts 50-52
(Westonaria CAS 228/03/2009).
[180] For completeness sake Case
2 involves the kidnapping, rape, robbery and murder of DEM around
Anchorville, Lenasia between
5 and 10 October 2008; Case 3 involves
the kidnapping, rape and murder of an unidentified adult woman near
Mosquito Valley, Lenasia
around September 2008; Case 4 involves the
kidnapping, rape and murder during November to December 2008 of an
unknown black female
whose body was found near West End Brick and
Clay, in Westonaria; Case 5 involves the kidnapping, rape, murder,
another rape and
another murder of two unknown black females around 6
December 2008 near West End Brick and Clay; Case 7 involves the
kidnapping,
rape and murder during December 2008 of an unknown adult
female person near Avalon, Lenasia Extension 1, Lenasia; Case 10
involves
the kidnapping rape and murder of an unknown adult female
person near Mosquito Valley, Lenasia during or about January 2009;
Case
11 involves the kidnapping, rape and murder of an adult female
person as well as the kidnapping and murder of a small child near

Anchorville, Lenasia around January 2009; Case 14 involves the
kidnapping, rape and murder of an adult female person, UES near

Anchorville, Lenasia, around February and March 2009; and Case 15
involves the kidnapping, rape and murder of an unknown adult
female
person near West End Brick and Clay, Westonaria around February and
March 2009.
[181] In all the above cases or
counts the accused made admissions in terms of section 220 of Act 51
of 1977 concerning the discovery,
recovery, cause of death and
identity (where applicable) of the deceased. He also admitted that
the crime scenes were not contaminated
and the victim did not sustain
further injuries when removed from the crime scenes until
post
mortem
examinations
were conducted. He did not dispute that samples and items were
obtained and retrieved from the bodies and crime scenes
and sexual
offences kits were properly sent to the Forensic Science Laboratory
for analysis.
[182] However, the accused denied kidnapping, raping, murdering and
robbing the victims.
[183] The State relies on circumstantial evidence and similar fact
evidence as well as the linkage analysis which was done and
testified
to by Prof Labuschagne.
[184] According to his
Curriculum Vitae
,
which formed a separate part of his report, Prof Labuschagne is a
world renowned expert on serial murders. He holds a PhD degree
in
psychology as well as two Masters Degrees, one in psychology and one
in criminology. He is the Commander of the Investigative
Psychology
Unit of the South African Police and holds the rank of Colonel. His
unit provides offender profiling and investigative
support services
to the South African Police. He has an impressive employment history
and holds membership of various professional
bodies in the fields of
psychology and criminology. He has made a number of conference
presentations, has published in accredited
journals and has testified
in many criminal cases. Since 2001 he has been involved in the
investigation of 24 serial murder cases
– 22 in South Africa
and 2 overseas. His post-graduate dissertations were discourses on
serial murders in South Africa.
He has been recognised in
international academic writings as one of the world’s foremost
experts in profiling psychologically
motivated crimes.
[185] When he testified in this case he was awesome indeed! He was
a particularly impressive expert witness who presented his
evidence
in a lucid, professional and objective manner. His evidence has been
of immense help to this Court.
[186] When a series of
mysteriously dead bodies were discovered around Lenasia –
Westonaria at first the police thought they
were run-of-the-mill
murders by some depraved murderer or murderers. However, when a
forensically consistent pattern in the causes
of death in respect of
the many victims of death and rape became ascertainable from the
apparent
modus operandi
of the perpetrator and certain ritualistic or signature behaviour by
the perpetrator emerged, the police concluded that a distinct

possibility existed that the murders, rape, robbery and concomitant
kidnapping were the work of a serial murderer. That is when
Brig
Byleveldt of the Police Serial Crimes Unit was roped in to lead
investigations. The various case dockets from Lenasia, Venterspos

and Westonaria were centralised under a single investigator, W/O
Ungerer who reported to Brig Byleveldt and his team of special

investigators. They were based at Brixton Police Station. Prof
Labuschagne was also brought onto the cases to lend his specialised

talents to the investigations.
[187] Prof Labuschagne testified fully about the murders in all the
charges and explained how through the use of linkage analysis
he came
to the conclusion that al the murders and concomitantly all the other
accompanying criminal acts forming the subject matter
of the charges
herein were the work of one serial killer namely, the accused in this
case.
[188] To summarise his evidence,
he testified to the effect that between the period March 2008 and
March 2009, fifteen (15) adult
black females and one black child were
murdered around Westonaria, Venterspos and Lenasia areas. One adult
black female survived
the attempt to murder her and thus lived to
tell the tale. The geographical area of the murder, as stated above,
was around Westonaria,
Lenasia and Venterspos. The Lenasia and
Westonaria crimes were grouped nearby each other while the two
Venterspos cases were also
grouped nearby each other. Because most
of the bodies were found in the general vicinity of West End Brick
and Clay factory, the
police dubbed the then unidentified perpetrator
the “
West End
Serial Killer
”.
[189] The “
tools
”
used to cause the deaths were all found at the scenes of the murders.
“
Strangulation
”
was used in 13 of the cases and “
blunt
force trauma
”
was used in 4 incidents. Fourteen (14) of the incidents had a
sexual
theme
. The suspect’s
“
signature
”
in the series was the targeting of adult black females for sexual
murders involving strangulation, usually by using one
or other type
of ligature, and leaving their partially naked bodies in or around
the same geographical area. In cases where the
victims were known or
identified, they all went missing during the daytime.
[190] Prof Labuschagne came to
the conclusion that the crimes committed in Cases 3, 4, 7, 8, 9, 10,
11, 13, 14, 15 and 18 were
undoubtedly
the work of the same offender when regard was had to the geographical
location of the crime scenes, the sexual theme to the incidents,
the
presence of a ligature around the victims’ necks and the
victimology. He further concluded that Cases 1, 2, 5, 12 and
16 were
all possibly linked to the same offender who perpetrated the other
mentioned cases.
[191] In a nutshell, Prof
Labuschagne’s testimony connected the accused herein to all
the counts in this indictment except
Counts 19, 20, 21, 22 and 23
involving the complainant NM as well as Count 58 involving the
accused’s escape from custody.
[192] Prof Labuschagne was categoric that there was no possibility
of a copy-cat killer being involved here.
[193] The accused’s defence in all the charges except Counts
19, 20, 21, 22 and 23 involving NM is one of a bare denial.
In
respect of the NM counts or charges as set out above the accused
admits having had sexual intercourse with the complainant
on the date
mentioned in the charge but contends that such intercourse was
consensual. He further contends that the sexual intercourse
occurred
at the backroom the complainant lived in at Lenasia, not in the bush
as the complainant testified. He denies assaulting
her, raping her,
kidnapping her, defrauding her, indecently assaulting her or stealing
anything from her.
DEFENCE CASE
[194] In answer to the
individual charges levelled against him the accused led
viva
voce
evidence in his
defence. He did not call any witnesses.
[195] With regards to Counts 1-4
the accused denied ever seeing BM embark and/or alight from the train
he was using from Westonaria
until he disembarked at Waterworks
station, let alone share the same coach. This version in chief
contradicted his version during
cross-examination of BM: that indeed
he and Betty were seated in the same coach and that she even asked
him for R2,00 which he
said he did not have. In relation to evidence
tendered by Frans Aphane and Klaas Moipolai about his responses upon
being asked
about the whereabouts of the deceased herein, HEM, that
he said he did not know where she was, he came up with a different
answer
to Frans Aphane as stated above to the effect that he left
the deceased at the shops at Lenasia. In chief he came up with a
completely
new version in his evidence: that in fact on that date he
was always in the company of his sister Rebecca who exited the train

with him at Waterworks. It is common cause that this version was
never put to the state witnesses, when they testified. The sister,

Rebecca, was never called to come and corroborate this version
despite it having been put directly to him during cross-examination

that if this version is true, then his sister, who incidentally
attended the trial regularly, should come and testify to confirm
it.
He could not explain how his sim card was inserted and used in the
deceased’s cellphone at 15h05 on the date of her
disappearance,
which was long after the accused and the deceased her alighted the
train from Westonaria.
[196] With regard to Counts 5-8 (DEM) the deceased was a member of
the Thembelihle ZCC branch. Accused testified that he only
attended
this specific church once, a far cry from the impression given during
cross-examination of state witnesses that it was
one of the churches
he frequented.
[197] With regard to Counts 12-18 (the two unknown adult females
whose bodies were found near West End Brick and Clay between
November
2008 and 6 December 2008) the accused agreed that the area where they
were murdered was about half a kilometre from his
home. He however
denied having anything to do with their deaths.
[198] With regard to Counts
19-23 (NM) the accused testified that he met and proposed to the
complainant during about November
2007 and were lovers until he met
and fell in love with Charlotte Manaka. The latter testified that
the period was April 2008.
Accused avers that on 23 December 2008
the complainant called him on his cell and asked that he meet her at
DB Supermarket at
Lenasia. That was the time he was with Charlotte
Manaka busy buying groceries and things for Christmas. That after
agreeing with
Charlotte that he should go buy liquor, he accompanied
her to the taxi rank on her way to her house in Soweto. They were to
meet
again at his house at Waterworks, Lenasia in the evening. He
then went to meet the complainant and they walked to her place at
her
workplace and agreed to meet again the following day. According to
the accused, the following day he visited the complainant
as agreed
and they shared the coffee he brewed, had consensual sex in her room
and he then went to his house where he found his
girlfriend or fiancé
angry with him for returning late.
[199] When asked about the
specifics of their relationship the accused started clutching at
straws. He changed his version from
one where he and the complainant
were straight lovers until 24 December 2008 to one wherein he was
trying to end it and the complainant
was insistent that it continue.
He could not tell what her telephone number(s) was or when her
birthday was.
[200] It is the accused only who
mentions the DB Supermarket as their
rendezvous
,
which aspect is contained in the warning statement of Brig Byleveldt.
The complainant never mentioned this name in her evidence-in-chief,

neither was it put to her in cross-examination that it was material
to their meeting on 23 December 2008.
[201] His evidence-in-chief renders the contents of Brig Byleveldt
somewhat important: At no stage did the complainant mention
having
sex with the accused inside her room yet the accused testified to
that effect in chief. The warning statement by Brig Byleveldt
also
mentions he having sex with the complainant twice inside her room in
addition to again in the veld. It begs the question where
did Brig
Byleveldt get this information from.
[202] With regards to Counts 24-26 (unknown adult female whose body
was found at Avalon, Lenasia Ext 1 between December 2008 and
January
2009) purely circumstantial evidence, similar fact evidence and
linkage analysis evidence is being relied on.
[203] With regards to Counts 27, 28 and 29 (ST) the accused’s
defence is a bare denial. He denies knowing or having seen
the state
witnesses Bongiwe Ntsele on the date of the deceased’s
disappearance or at all. He professes no knowledge of the
deceased
also.
[204] When the witness told this Court that she could identify the
accused by among others a scar on his forehead and a red scar
on his
lower lip the accused vehemently denied ever having had such scars.
The photos in the exhibits that he himself had admitted
as being
correct and depicting himself and other scenes the accused definitely
have the two scars. Even in court, those scars
were quite visible
and distinguishable.
[205] This baseless denial of a clearly visible identifying mark can
only work against the accused’s credibility and reliability
as
a witness.
[206] With regards to Counts 30-32, the accused’s defence is a
bare denial. He denied ever going to the Caltex Garage mentioned
by
state witness Nozuko Maqanta. Under cross-examination the accused
tried to put it across that he does not reside at Zuurbekom
but was
forced admit it when it was pointed out to him that his suburb of
Waterworks was situated in Zuurbekom. Evidence was also
elicited that
on the date of the deceased’s disappearance the accused’s
personal cellphone was used near the area of
Caltex Garage. He never
disputed this.
[207] With regard to Counts
33-35 (murdered and raped body found at Mosquito Valley around
January 2009), Accused denied any knowledge
thereof but could not
explain how his DNA profile found its way into the samples that were
collected in a sexual crime kit at the
crime scene.
[208] With regards to Counts
36-40 (murder and rape of unknown adult female with a child near West
End Brick and Clay during January
2009). The accused denies any
complicity but cannot say how his DNA was found at the scene or how
the method used was identical
with the other murders.
[209] With regards to Counts 41-43 (unknown adult female found
murdered and raped near West End Brick and Clay on 29 January 2009).

The State relies on linkage analysis evidence here. The accused’s
defence is a bare denial. Yet DNA evidence linked him.
[210] With regards to Counts 43-46 (DC G found dead and raped near
Venterspost during February-March 2009). Accused denies any

complicity in these crimes. Yet, despite all that, the warning
statement to Brig Byleveldt mentions graphic details about the
kidnapping, rape and murder of a woman on her way to Carletonville.
[211] With regards to Counts 47-49 (deceased UES found murdered and
raped near Anchorville, Lenasia Ext 1 in February-March 2009).
The
accused did not lead any evidence on these counts in his defence,
except for a general denial.
[212] With regards to Counts 50-52 (unknown murdered and raped woman
whose body was found near West End Brick and Clay around
February-March 2009). The accused did not lead any specific evidence
hereon except for a general denial.
[213] With regards to Counts 53-57 (DMT aka M). The accused denied
knowing the complainant. In the warning statement he allegedly
made
to Brig Byleveldt the accused mentioned what happened to this
complainant. As stated hereinbefore, Brig Byleveldt could not
have
obtained this evidence, especially of what actually happened to the
complainant at the scene of crime because at the time
the warning
statement was written down, the latter was still in hospital, her
jaws wired shut and could not yet speak. The accused
also alluded to
the student police witnesses at the subsequent Identification Parade
bringing the complainant to the cells where
he was detained solely
for purposes of showing him to her. As stated above again, this
version is highly improbable in the light
of him being represented by
an attorney at the parade and the latter not noticing or reporting
such a flagrant disregard of the
rules. It becomes more absurd when
the accused’s version that he actually reported this to his
attorney is taken into account.
The accused could also not explain
how his DNA profile found its way to the crime scene.
[214] With regards to Count 58
(escaping at Brixton Police Station on 14 April 2009) the accused’s
version is that he was
ordered by the cell police to go to court
despite the fact that it was not his court day or the court he was to
appear at. He
denies the version that he did not respond to his name
being called at the court cells or being found “
hiding
”
in the cell toilet. He could not explain what he was doing on the
toilet seat at the back of the cell fully dressed and
with a cap
pulled over his eyes.
[215] With regard to Counts 59-61 (deceased ANW whose murdered and
raped body was found near Mosquito Valley, Lenasia in January
2009)
the accused’s defence is a bare denial. He also disputed the
deceased’s uncle, Edward Molahlehi’s evidence
that he saw
him at the deceased’s home just before she disappeared. He
also in this instance could not explain how his DNA
profile found its
way into the samples collected in a sexual assault kit at the crime
scene.
[216] This aspect is also
contained in the warning statement made to Brig Byleveldt. What is
more revealing from the accused’s
evidence is that he
voluntarily took the police to areas to make pointing-out but he
categorically stated that he deliberately
took the police to wrong
scenes or areas. He thus admitted deliberately taking the police on a
wild goose chase. Coincidentally,
although he did not point at the
exact areas where the bodies of victims were found, he nevertheless
took the police to the forests
and thickets in the general areas
where the crimes were committed.
[217] As part of the accused’s
defence he tried to rely on
alibi
.
It is trite law that an
alibi
defence should be considered in the light of the totality of the
evidence given in the case and the court’s impression of
all
the witnesses.
See:
S
v Khumalo
[1991] ZASCA 70
;
1991 (4) SA
310
(A).
[218] One would have expected
the accused to follow up this
alibi
defence with a witness(es) to confirm his
alibi
but he did not call any. It is true that there is no burden on an
accused person to prove his
alibi
.
See:
S
v Shabalala
1986 (4)
SA 734
(A).
S
v Hlongwane
1959 (3)
SA 337
(A).
However, the accused did not come
up with this
alibi
defence when state witnesses were being cross-examined. He only
brought it up during his evidence-in-chief. As stated above,
the
witness(es) he was alluding to as his
alibi’s
were throughout this case in court and as such there cannot be a
situation of him not locating them. Negative inferences may under

such circumstances sometimes be drawn and it is my considered view
that I am entitled to draw such inferences in this case.
EVALUATION
[219] Proof of an accused’s guilt beyond a reasonable doubt is
what the State must achieve before it succeeds in pushing
the wall of
guilt onto the side of the accused. There is no duty on an accused
person to push any part of that wall onto the side
of the State. An
accused’s person should be acquitted if the State evidence is
not strong enough. He should be acquitted
if there exists a
reasonable possibility that his evidence may be true.
See:
S
v Alex Carriers (Pty) Ltd en ‘n Ander
1985 (3) SA 79
(T).
S
v Radebe
1991 (2) SA
166
(T).
S
v Munyai
1986 (4) SA
712
(V).
[220] In evaluating the evidence
led the court must not decide the matter in a piecemeal fashion. All
the evidence presented must
be taken into account. The state case
and the defence case are not to be viewed in isolated compartments.
They must be weighed,
the one against the other, looking at both as
part of a whole while all the time bearing in mind that it is the
State that bears
the
onus
of proving the accused’s guilt beyond a reasonable doubt.
See:
S
v Chabalala
2003 (1)
SACR 134
(SCA).
S
v Van Aswegen
2001 (2)
SACR 97
(SCA).
[221] The court does not have to believe the defence story, still
less does it have to believe it in all its details. It is sufficient

if it views it as being reasonably possibly true.
See:
R
v M
1946 AD 1023
at
1027.
S
v Jaffer
1988 (2) SACR
84
(C) at 89D.
[222] The court must also not
only apply its mind to the merits and demerits of the State and
defence witnesses but also to the
probabilities of the case. Such
probabilities should also be tested against the proven facts that are
common cause.
See:
S
v Abrahams
1979 (1) SA
203
(A).
S
v Mhlongo
1991 (4)
SACR 207
(A).
S
v Guess
1976 (4) SA
715
(A).
S
v Trainor
2003 (1)
SACR 35
(SCA).
[223] The identity of the perpetrator of the crimes set out in the
indictment is an important aspect that must be decided on the

evidence that has been led. When a court has to deal with evidence
of identity, it has to scrutinise it closely. The court must
be
satisfied, before it accepts such evidence, that the identifying
witness in fact has a recollection of the person concerned
which goes
beyond being merely an impression.
See:
S
v Mehlape
1963 (2) SA
29
(A) at 32E-G.
[224] In
S
v Ndika and Others
2002 (1) SACR 250
(SCA) Marais JA held among others at 256 that it is
of course so that the honesty of a witness in identifying a person is
not a
guarantee of its correctness. The objective circumstances
attending to the observation of the person and the safety of the mind

of the observant are just as critical. The identification must also
be reliable.
[225] In
S
v Mthetwa
1972 (3) SA
766
(A) Holmes JA held as follows at 768A regarding identification:
“
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is
not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various
factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation, both as to
time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused's
face, voice, build, gait, and dress; the result of identification
parades, if any; and, of course, the evidence by
or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case,
are not individually
decisive, but must be weighed one against the other, in the light of
the totality of the evidence, and the
probabilities
.”
See also:
Nomandela
and Others
v
State
[2007] 1 All SA
506
(E).
[226] Where a conviction depends
on identification alone, a court must be satisfied that the
identifying witness is truthful and
perhaps, more importantly, there
must be no reasonable doubt that the witness is not making a mistake
regarding the identity of
the perpetrator. Something more than the
mere
ipse dixit
of the identifying witness is required – it may be that the
perpetrator is known to the witness or it may be the perpetrator
has
a distinctive feature(s). It also may be that the features of the
perpetrator are so burnt into the memory of the witness
that despite
the latter not being able to enumerate a list of identifying bodily
features or mode of dress, such a witness’s
testimony is, in
the peculiar way in which it was led and the impression such
witness’s demeanour in the witness stand gave
to the court may
be such that that the identification may be accepted as being
reliable and honest.
See:
S
v Sithole and Others
1999 (1) SACR 585
(W).
[227] The accused has also been
seen with some of the deceased person by single witnesses. It is
trite law that such evidence
of single witnesses should be approached
with the requisite caution. Before the court can convict on such
evidence of a single
witness, it must be satisfied that such evidence
is satisfactory in all material respects or it has been corroborated
by other
evidence.
See:
R
v Mokoena
1932 CPD 79.
S
v Ganie
1967 (4) SA 203
(N).
[228] In
S
v Webber
1971 (3) SA
754
(A) it was held among others by Rumpff JA that it is not possible
to prescribe a formula in terms whereof every single witness’s

credibility can be determined, but it is essential to approach such
evidence with caution and to weigh up the good qualities of
such a
witness against all the factors which may diminish the credibility of
the witness.
[229] From the totality of the
evidence, much of which uncontradicted and uncontested, from the
section 220 admissions, the medico-legal
and
post
mortem
reports, the
crime scene analyses and the DNA evidence which was admitted by
consent in affidavits in terms of
section 212
of the
Criminal
Procedure Act, it
can be safely accepted that the bodies of all the
victims, except for one child, were those of adult black females.
Some had been
identified while others have not. In almost all the
bodies found the causes of death were mostly strangulation with or
without
the accompanying blunt force trauma. Most of the bodies were
left lying in sexual positions – naked, and their faces were

stuffed or covered with soil or mud. They had also been raped. Some
of the victim’s items or possessions notably cellphones,
were
taken away. The circumstances under which the deceased were deprived
of possession of their goods are unknown until now.
If we can say
they were robbed it would in my view be speculation. That the
deceased’s possessions were stolen cannot in
my view be denied.
[230] The cause of death on
Counts 4 and 8 (Cases 1 and 2) are undetermined, in Count 11 is
strangulation with a blue fabric and
the deceased panties as
ligature; in Count 14 (Case 4) is strangulation; in Count 18 (Case
5) is blunt force trauma to head and
strangulation; in Count 26 (Case
7) is strangulation with a pink strapping; in Count 29 (Case 8) is
strangulation; in Count 32
(Case 9) is blunt force trauma and
strangulation; in Count 35 (Case 10) is strangulation with a blue
fabric; in Counts 38 and 40
(Case 11), both the adult black female
and the child have been strangled with a black fabric; in Count 43
(Case 12) is blunt force
trauma to head; in Count 46 (Case 13) is
strangulation with the deceased handbag strap; in Count 49 (Case 14)
is strangulation
with a wire; in Count 52 (Case 15) is strangulation
with a scarf; in Count 57 (Case 16) is blunt force trauma to head and
strangulation;
in Count 61 (Case 18) is strangulation with a blue
fabric.
[231] In all the above cases or
counts, except for Counts 4 and 35 (Cases 1 and 10) there was a
sexual theme to the murders. The
perpetrator’s signature in
all cases was the targeting of adult black females for sexual
satisfaction and thereafter murdering
them by strangulation or
bludgeoning their heads and faces. He left the victims with the
ligatures still around their necks, their
bodies naked or partially
naked and the area of the crimes was the areas around West End Brick
and Clay, Lenasia and Venterspos
or Westonaria.
[232] In all cases where the victims were identified, they all went
missing during the day. The geographical area of the crimes
are
close to each other around West End Brick and Clay, Lenasia area and
Venterspos (Westonaria). The victimology is that of adult
black
females. The child also killed could have been killed because it was
with its mother at the time.
[233] The evidence of Capt Govan, the forensic analyst of the
Forensic Science Laboratory about receipt of the sexual offences
kits
before the accused was arrested and comparing those kits with the
accused’s control DNA sample after his arrest, the
chain
evidence attendant to the analysis until positive DNA matches were
made with the accused herein, was not challenged by the
accused. No
aspersions were cast by the accused on the way the specimen were
obtained, their sealing, referencing, transportation,
analysis and
comparison with the control blood sample of the accused.
[234] The accused was arrested
after the complainant in Counts 53-57 (Case 16), M was molested. She
lived to tell the tale. The
witness, M S, blew the whistle on the
accused after the complainant herein did not return home. The
accused is quoted to have
used the following words to MS after he
picked up the complainant herein and had to off-load her (Mary) and
her children at her
home:
“
You
have been saved by your faith …
”
This is one of the aspects that worried MS to such an extent that she
went to report what happened during the day between her,
the
complainant and the accused. Her suspicions precipitated a chain of
events I have already set out above which culminated in
the accused’s
arrest.
[235] Capt F S Möller of the Hi-Tech Project Centre of the South
African Police tendered uncontradicted evidence indicative
of the
accused herein having inserted and used his sim card in the
cellphones that were in the possession of the complainants in
Cases 1
(Counts 1-4), and Case 16 (Counts 53-57). His cellphone also placed
him in the vicinity of the Caltex Garage from whence
the complainant
in Counts 30-32, NN was taken away or seen for the last time, alive.
The cellphone of M (Counts 53-57) was found
in the accused’s
possession when he was arrested.
[236] In the series of
admissions in terms of
section 220
by the accused, throughout the
trial, the accused admitted the places and dates of death of the
victims as well as the findings
of the
post
mortems
in respect of
each victim. He also admitted that all the victims in all the counts
herein were also raped prior to their deaths
or before
rigor
mortis
set
in. He also admitted that cellphones were lost, stolen or robbed and
he also received money from NM.
[237] The accused herein categorically denied being a traditional or
spiritual healer. He even ascribed the presence of sangoma
beads
found at his home to his girlfriend Charlotte Manaka. Charlotte
denied these. She testified without any contradiction from
the
accused that he (accused) owned the sangoma beads and that he even
professed to be a prophet.
[238] During his eye-opening
testimony, Prof Labuschagne testified to and handed in as exhibit a
satellite aerial photograph incorporating
and depicting the distinct
geographic locations of the murders as well as the accused’s
home. A road map of the location
depicting the locations of the
bodies found was also handed in as exhibit. They were prepared by
Prof Labuschagne who testified
that he did so through the use of GPS
or the so-called global positioning technology. The accuracy of this
data has not been disputed.
[239] Prof Labuschagne, consistent with the methodology he and
others in the field have developed, once he suspected a serial

murderer was at work, embarked upon developing the linkage analysis
alluded to above.
[240] As already stated above,
the process of linkage analysis involves the gathering of information
about the crimes, reviewing
that information and identifying
significant features of each crime individually, determining any
consistencies across the series
of the crimes; and then compiling a
written analysis.
[241] Prof Labuschagne reached the following conclusions which were
supported by the evidence and the proven facts in this case:
The causes of death in almost
all the crimes were strangulation with or without blunt force
trauma. He stated that strangulation
is typically the most common
cause of death in serial cases. That serial murderers have been
known to alter their method of
killing during their killing reign
which could be as a result of experimentation, unforeseen events
occurring when the crimes
are in process, victim resistance, the
presence of passers-by or a change in
modus
operandi
as the
perpetrator becomes bolder or more expert or when he needs to
change.
The manner in which the bodies of victims were found were identical
and pointed to the accused being the perpetrator when regard
is had
to what he did to those victims that he was the last person to be
seen with while alive.
In almost all the cases the culprit’s signature can be
described as targeting adult black females and then leaving their

bodies out in the open veld, all not very far from each other.
The geographical profiling according to Prof Labuschagne pointed to
a serial criminal, the accused: the bodies found around
the
Lenasia, West End Brick and Clay and Waterworks areas were close to
each other. He explained that serial murderers tend to
cluster their
crime scenes working ritualistically towards a central point despite
the risks of apprehension or discovery.
The professor further stated that serial murderers always worked
from the parameters towards the centre or central point. He
stated
that the crimes herein started outwards and moved towards the centre
where the accused’s home was situated. He further
explained
that this pattern of centralisation could be the result of a growing
comfort zone and lack of apprehension of detection
as the offender
grows in confidence and acquires a sense of power through the
commission of his nefarious deeds. He further stated
that this could
also explain why such murderers or criminals change their methods.
The method of killing was that
the killer moved from blunt force trauma to strangulation which, to
a perverted killer, would have
been a more satisfying experience of
power in that strangulation offers the perpetrator greater control
over the process in the
timing of his victim’s death. He
concluded that in strangulation the killer is able to control the
pace of death.
The victimology across the entire spectrum of the murder and rape
scenes as set out in the indictment herein is consistent throughout.

The culprit preferred adult black females. According to Prof
Labuschagne, serial criminals, especially serial murderers tend
to
have an ideal victim. Such victim species usually has some relevance
to the serial criminal like hatred that has welled within
the serial
criminal for the victim group as a result of some life experiences
or what that victim group had done to him. Mostly
a perceived
maltreatment by a woman may be the main reason. It may not be
factually so but the perpetrator would pump himself
into believing
that was so.
[242] Prof Labuschagne’s investigation and assessment of all
the relevant facts, evidence, circumstances and trends led
him to the
conclusion that all the crimes committed in all the cases making out
the indictment herein were committed by the same
offender. It was his
further conclusion that the uniqueness of the behaviours and
circumstances accompanying these crimes are indicative
of one
offender being involved. He ruled out the possibility of a copy-cat
offender because the apparent psychological motivation
and footprint
across the entire series of crimes was unique. This was strengthened
by the fact that after the accused was arrested,
all similar murders
or rapes ceased abruptly and to date no similar crime has occurred
within the same geographical area, let alone
with the same signature
and victimology.
[243] What brings the accused herein within the parameter of what
Prof Labuschagne testified on is what was testified to by Capt

Khomotso Manthata of Westonaria Police Station who was in charge of
initial investigations of some of the cases in this indictment
before
a decision was reached that a serial offender was involved and all
dockets should be centralised. On the date of the accused’s

arrest, the latter displayed an above average degree of contempt and
hatred for women. He also, according to Capt Manthata’s

evidence, displayed character traits that were akin to those of a
psychopath by ranting and raving and exposing his manhood to
all and
sundry and urinating so exposed, even in front of women.
Incidentally, Capt Manthata is a woman.
[244] Capt Manthata further
testified that after the accused herein was transferred to Brixton
Police Station, she met him again
at Westonaria Magistrate’s
Court where he was appearing in another case of fraud and the
accused, upon seeing her, said to
her in Sepedi:
“
One
day I will be out of custody and you will be the first person I will
rape and murder.
”
[245] These were prophetic words
in my view, which fell in tune with the
modus
operandi
, signature
and the entire trend testified to by Prof Labuschagne.
[246] The above are some of those pointers that, in my view, point
to the accused herein as the perpetrator of the crimes set
out in the
indictment.
[247] It should be mentioned here, that the accused in his evidence
or through his defence counsel when afforded the opportunity
to
cross-examine the professor, did not ask the latter any questions to
gainsay any of his observations, theories and conclusions.
[248] Before I come to my
conclusion, it is important that the issues of the two warning
statements allegedly made by the accused
to Brig Byleveldt and W/O
Ungerer be dissected. The accused professes ignorance of Brig
Byleveldt’s warning statement. He
stated that the latter, in
the presence of W/O Ungerer, Capt Mosa Shezi and a tall, dark
complexioned Shangaan speaking captain
from a police station in
Soweto surrounded him in Brig Byleveldt’s office at Brixton
Police Station and the latter shoved
a stack of documents under his
nose and ordered him to sign after sweet-talking him first with
promises of lenient treatment if
he signed. He said he put his
signature on the first page and then decided to refuse to sign the
rest of the papers. He went further
to claim that when he refused to
sign he was assaulted and electrocuted as well as suffocated with a
glove but he was steadfast
in his refusal to sign. In short, his
story on Brig Byleveldt’s warning statement was that the latter
wrote his own stories
in the papers and then first asked him later
ordered him to sign.
[249] On the other hand, Brig Byleveldt’s evidence, as
confirmed or corroborated by W/O or Captain Raphadu who was
specifically
brought in from a Soweto Police Station as an
interpreter, was that the accused was fully informed of his full
rights including
right not to depose to any statement as well as
right to legal representation. The accused elected to make a warning
statement.
Brig Byleveldt is a commissioned officer. According to
the evidence he dealt with the introductory questionnaire preceding
the
body of the statement on a point by point basis, each stage being
interpreted to the accused by Capt Raphadu in his Native Sepedi

language without any misunderstandings.
[250] Before this warning
statement could be read and explained by Brig Byleveldt I
specifically enquired from the accused and
his counsel if the
admissibility thereof was in dispute whereupon the accused through
his counsel indicated that the document’s
admissibility was not
in question even though the contents of the document may amount to a
confession or admission by the accused.
The accused, through his
defence counsel expressly stated that the contents of the warning
statement may be read and explained
into the record and that they
will deal with same as a credibility issue in their defence evidence
as well as in closing argument
as his defence is that he was not its
author. A trial-within-a-trial was thus not held.
[251] Brig Byleveldt testified that when he invited the accused to
choose if he wanted to make a warning statement, he had not
yet had
insight into the dockets involved and as such did not have deeper
knowledge of what was in issue. The only document he
had with him
was a list of the dockets and where they were opened as well as the
offences involved. He then wrote down each and
every detail as given
to him by the accused. Before the last page of the warning statement
could be completed he read back what
the accused had related to them
and inexplicably, the accused started being emotional, loud and
restless after signing the first
page. Brig Byleveldt then proceeded
to read out the questions in the last page and the accused
surprisingly confirmed what he had
said through the answers that he
gave despite his earlier recalcitrance and emotion charged outburst.
When the accused refused
to further sign the warning statement, he
did not force him to do so. He denied ever assaulting or intimidating
the accused.
[252] I tend to agree with the state evidence that the accused was
the author, through Brig Byleveldt, of this warning statement.

Although he did not mention specific incidents, dates and areas
therein, what he gave to the police, which is my finding that
he did,
corresponds with most of the evidence and circumstances
circumstantially and even verbally testified to by witnesses. As

already alluded to, what the warning statement mentioned about Case
16 (Counts 53-37) regarding M corresponded exactly with the
evidence
later led in this Court whereas when the warning statement was taken
down on 14 April 2009, the complainant was still
in hospital, unable
to speak and as such not yet interviewed by the police.
[253] Some of the witnesses made
what is called dock identification of the accused when they
testified. Dock identification is
not the most ideal type of
identification. It was ruled in
S
v Moradu
1994 (2) SACR
410
(W) by Blieden J that the danger of dock identification is the
same as that which is created by a leading question in
examination-in-chief
as it suggested an answer. The learned judge
held that dock identification should be ruled inadmissible save in
very exceptional
circumstances. In my view this ruling is neither
left or right.
[254] I am however persuaded to
agree with the ruling of Bam AJ in
S
v Ramabokela and Another
2011 (2) SACR 122
(GNP) wherein the learned judge found and ruled
among others that while dock identification did not carry the same
weight as evidence
emanating from a proper identification parade, it
however cannot be equated to an answer to a leading question. Dock
identification
should be evaluated in the same manner as all the
evidence regarding identification – with caution. Weight to be
attached
to such evidence depends on circumstances in an individual
case and on the evaluation of the totality of the evidence –
with
the usual cautionary rules being applied.
[255] As regards W/O Ungerer,
the accused also made warning statements concerning some of the
cases. It should be mentioned here
that the accused did not attack
these warning statements with much vigour or conviction. For example,
he gave a full explanation
in the NM matter (Case 6). In respect of
the Caltex Garage deceased the accused allegedly told W/O Ungerer
that he could have
had sex with the deceased but he did not murder
her. The general tone of these warning statements was a denial of
murder or rape
of the victims.
CREDIBILITY
[256] I have had the opportunity of watching all the state witnesses
as well as the accused when they testified in this Court.
All the
state witnesses gave their evidence in a calm, sequential and relaxed
manner. I distinctly formed an impression that they
were truthful,
honest and reliable as witnesses in this Court. Although there could
be one or two contradictions in some of the
details in their
testimonies, same were not of any meaningful or material nature as to
affect the quality of their evidence or
cast doubt or aspersions on
their credibility. I can say here without any shadow of doubt that
the state witnesses did not embellish
their versions to disadvantage
the accused herein. I have no reason to reject or disregard their
testimonies.
[257] On the contrary, the
accused was a woeful witness in the witness stand. He contradicted
what was put to state witnesses
on his behalf and even came up with
new versions that were at odds with his entire testimony. He did not
hesitate to deny what
he testified to a few moments earlier. I
distinctly formed an impression that the accused was not telling the
truth to this Court.
He heard what his fiancé, Charlotte
Manaka said about him and what happened during his arrest but did not
contradict her
under cross-examination. Nevertheless, when he
testified in his defence, he went ahead and negated all that which
Charlotte Manaka
told the court, even venturing to state that in fact
it was Charlotte who was a traditional healer who also wore the
sangoma beads
that were found at his home. He had clearly forgotten
that during cross-examination he denied ever having seen beads in his
house.
He professed to being a non-drinking and non-smoking ZCC
member but in his evidence he openly told this Court that he did
smoke
cigarettes and when Charlotte Manaka told this Court that she
and the accused drank alcohol together on the Christmas day of 2008,

he never contradicted her while she was in the witness stand. There
are so many inconsistencies and improbabilities in the accused’s

evidence that I can say without any fear of contradiction that he was
an untruthful, unreliable and untrustworthy witness whose
evidence
cannot be relied on. His version of events is so improbable that it
cannot be accepted as representing a true version
of events in this
case. He adjusted his story so many times that this Court cannot say
what his real defence now is to the charges
he is facing.
[258] From the totality of the
evidence led herein, inclusive of the accused’s version, I have
been persuaded that the State
has been able to prove the following
against the accused beyond a reasonable doubt.
COUNTS 1-4
[259] That HEM was with the
accused when she was last seen alive. When she was found murdered,
she had been raped. The accused
used his pin code in her cellphone
the very afternoon of the day he was last seen alighting from a train
with her at Waterworks
railway station. Prof Labuschagne’s
linkage analysis evidence clearly pointed to him as her killer and
rapist. It is an
inescapable conclusion that the deceased did not
accompany the accused to where he took her willingly or voluntarily
and as such
the only inference that can be drawn from the proven
facts is that he kidnapped her. She lost her cellphone to the
accused. However,
whether it was through a robbery cannot be
ascertained from the facts. However, her cellphone was stolen from
her and the only
person who did that is the accused.
COUNTS 5-8
[260] On these counts linkage analysis evidence through similar fact
evidence linked the accused to the murder and rape of DEM.
When her
body was discovered she had also been raped and her cellphone was
missing. The signature, geographical factor, victimology
and
forensically consistent pattern; all pointed to the accused as the
perpetrator.
COUNTS 9-11
[261] The State successfully linked the accused to the murder and
rape of the unknown black woman found at Mosquito Valley. Linkage

analysis evidence in my view points straight at the accused. The
position of the body and its degree of undress bore a distinct

signature or footprint ascribable to this accused. The issue of
kidnapping is not very clearly circumscribed.
COUNTS 12-14
[262] The linkage analysis evidence and similar fact evidence in my
view also point to the accused as the perpetrator of the crimes
set
out in these counts, namely, rape and murder. The circumstances
hereof are strikingly similar to all the other murders, thus
bearing
a distinct footprint pointing to the accused as the criminal. As in
Counts 9-11 above there is no clear evidence of kidnapping.
COUNTS 15-18
[263] The victim in these counts were discovered by accident when
the police were combing the crime scene of the murder in Counts

12-14. It is my considered view and finding that the accused is
linked to these offences by similar fact evidence and linkage

analysis.
CONTS 19-23
[264] At the onset, from the
evidence of the complainant NM I had a serious doubt as to the
accused’s culpability herein
as the complainant indicated in
her evidence that she agreed to do what the accused asked her to do.
However, through the accused’s
cross-examination as well as
during his evidence in defence it became clear that the accused’s
version was contrived and
fabricated. He at first claimed he and the
complainant were lovers but later he changed his version to state
that she was no more
his lover and he was trying to get rid of her
while she clinged onto him. A lover does not charge his sweetheart
for brewing a
tea or coffee but this is what the accused did. From
the totality of the evidence led it is my considered view and finding
that
the State has proved the accused’s guilt beyond a
reasonable doubt. There is direct eyewitness evidence by the
complainant
graphically setting out what happened on 24 December
2008. Her evidence was corroborated by other witnesses as well as
available
similar fact evidence and circumstantial evidence. The
complainant pointed the accused without any hesitation of the
resultant
identification parade. In his warning statement the accused
admitted his dastardly deed. The accused’s guilt on the rape
and sexual assault charges is in line with the provisions of
section
1(3)(c)
of the
Criminal Law Amendment Act (Sexual
Offences and
Related Matters) 32 of 2007.
COUNTS 24-26
[265] The accused was linked to the death of the deceased. Linkage
evidence clearly pointed to the accused and rape of the unknown
woman
in these counts by the similar fact evidence as well as the linkage
analysis evidence of Prof Labuschagne.
COUNTS 27-29
[266] The deceased left her workplace at the Lenasia Shopping Centre
during her lunch break on 19 January 2009. The accused was
alleged in
evidence to have professed to take the deceased herein, ST, to a ZCC
church for prayers. She did not return as promised
before 14h00.
Accused was later seen walking around the shopping centre and when
asked about the deceased’s whereabouts,
he replied that he
thought she would already be back from church because he did not go
with her to the church but escorted her
to a car that was going to
the church. In his evidence-in-chief the accused denied knowledge of
this incident although not much
was said about it when the state
witnesses were in the witness box.
COUNTS 30-32
[267] Evidence on these counts by
Nozuko Maqanta pointed to the accused as being the person who left
with the deceased in his cream
white Volkswagen Golf on 22 January
2009. Accused’s DNA profile was found in the sexual crime kit
collected at the scene
of her murder and rape. Despite the accused
professing that he was in Alberton at his sister’s place on
that day his cellphone
was proved to have been picked up by a tower
or repeating station near the place where he is alleged to have
picked up the deceased.
COUNTS 33-35
[268] This was an unidentified adult black woman who was murdered and
raped. The signature of the offence fits the accused and
the linkage
analysis evidence proves his guilty on murder and rape.
COUNTS 36-40
[269] Similarly, the accused was correspondingly linked to the
murder and rape of the unidentified woman and small child by the

linkage analysis evidence. All the footprints and signature in these
crimes point to the accused.
COUNTS 41-43
[270] This was the unknown black female who was found near West End
Brick and Clay severely assaulted and raped. She was taken
to
hospital but died without regaining consciousness. It is my view
also here, that the accused was associated to the crimes herein,
i.e.
the murder and rape through similar fact evidence and linkage
analysis. The accused’s DNA profile was also found in
the
sexual crime kit collected at the crime scene. It is my finding thus
that the accused’s guilt has been proven beyond
a reasonable
doubt. One does not brutally murder and rape a woman going with one
voluntarily. Consequently an inference of kidnapping
can be drawn
from the facts.
COUNTS 44-46
[271] This is the case of the woman DCG who was going to a funeral
at Carletonville. In the warning statement the accused accurately

described what happened to the woman who was on her way to
Carletonville. He described her light skin complexion, which fitted

the photo that the deceased’s husband handed in to court as
exhibit. The accused’s DNA profile was found in a sexual

assault kit collected where her body was found murdered and raped. As
proof that accused was not being framed, a used condom was
found some
few meters from where the body lay and analysis thereof did not link
it to the accused: The DNA profile found in the
condom did not match
the accused’s.
COUNTS 47-49
[273] It is my considered view and finding that the accused has been
successfully linked to the murder, disappearance and rape
of the
complainant UES who disappeared on her way to the clinic. Linkage
analysis evidence clearly points to the accused as the
culprit.
However, there is no clear evidence of kidnapping and the
circumstances in this case do not tend themselves to an inference

being drawn.
COUNTS 50-52
[274] The unidentified body of
the black adult female found near West End Brick and Clay bore, in my
view, all the footprints and
signature of the accused as the murderer
and rapist. It is not known how she got there and the circumstances
thereof do not lend
themselves to an inference that she was
kidnapped. However, the linkage analysis evidence points to the
accused as the perpetrator.
COUNTS 50-52
[275] Similarly the linkage analysis evidence of Prof Labuschagne
points to the accused having been responsible for the death
and rape
of the unidentified black woman who was found near West End Brick and
Clay during February to March 2009. Similarly I
cannot infer
kidnapping readily from the circumstances of this case.
COUNTS 53-57
[276] The accused was graphically linked to the crimes herein by the
complainant herself who lived to tell the tale. The accused’s

DNA profile was found in a sexual offences kit collected at the scene
of the crime. The complainant’s evidence was corroborated
by
MS’s evidence on what took place that day. The complainant’s
cellphone was found in the accused’s possession
when he was
arrested and expert evidence proved that he (accused) used his sim
card in that cellphone from the date of the complainant’s

kidnapping, attempted murder, rape and sodomy which amounts to rape
and the disappearance of the complainant’s pair of jeans,
panty
and cellphone. The sangoma beads that the complainant ripped from the
accused’s neck matched the ones found at his
home.
COUNT 58
[277] The State led the evidence of how inmates were called one by
one out of the police cells at Brixton Police Station on their
way to
court. Each name is checked against the J15 charge sheets from the
court. The State has proved that the accused impersonated
one
Godfrey Moloi, a fellow inmate at Cell 3 at Brixton Police Station
when the latter’s names were called. When his absence
from the
cells was discovered and the police went and called out his names at
the court cells, he hid in the toilet, fully clothed,
hiding his face
with a cap. The accused’s version of events is highly
improbable. Not only did the evidence contradict his
story that all
Cell 3 inmates went to court but the owner of the name he
impersonated was found still in Cell 3 together with other
inmates
who were not going to court. Accused’s guilt of escaping from
custody was proved. The evidence proved a completed
escape, not an
attempt.
COUNTS 59-61
[278] The accused has in my view
and finding, been linked to the disappearance, murder and rape of the
deceased herein, ANW. Linkage
analysis and similar fact evidence
points at him being the perpetrator. The circumstances of this case
also point to the deceased
having been deprived of her freedom of
movement.
[279] Overall, it is my further
considered view and finding that the version given by the accused
cannot be believed. It is riddled
with inconsistencies,
improbabilities and blatant untruths. It is self-destructive in that
the accused contradicted himself and
his version many times on end at
material points as set out hereinbefore.
[280] The accused’s version is thus rejected as false insofar
as it is in conflict with the state evidence. It cannot be
said to
be reasonably possibly true.
[281] The accused is thus found guilty on the following counts as
follows:
Counts 1-4
: Guilty as charged.
Counts 1, 2 and 4. Count 3 guilty of theft.
Counts 5-8
: Guilty as charged.
Counts 5, 6 and 8. Count 7 guilty of theft.
Counts 9-11
: Guilty as charged.
Counts 10 and 11. Not guilty and discharged. Count 9 (kidnapping).
Counts 12-14
: Guilty as
charged. Counts 13 and 14. Not guilty and discharged, Count 12
(kidnapping).
Counts 15-18
: Guilty as
charged. Counts 16, 17 and 18. Not guilty and discharged. Count 15
(kidnapping).
Counts 19-23
: Guilty as charged
all counts.
Counts 24-26
: Guilty as
charged. Counts 25 and 26. Not guilty and discharged, Count 24.
Counts 27-29
: Guilty as charged
all counts.
Counts 30-32
: Guilty as charged
all counts.
Counts 33-35
: Guilty as
charged. Counts 34 and 35. Not guilty and discharged, Count 33
(kidnapping).
Counts 36-40
: Guilty as
charged. Counts 37, 38 and 40. Not guilty and discharged, Counts 36
and 39.
Counts 41-43
: Guilty as charged
all counts.
Counts 44-46
: Guilty as charged
all counts.
Counts 47-49
: Guilty as
charged. Counts 48 and 49. Not guilty and discharged, Count 47
(kidnapping).
Counts 50-52
: Guilty as
charged. Counts 51 and 52. Not guilty and discharged on Count 50.
Counts 53-57
: Guilty as charged
on all five counts.
Count 58
: Guilty as charged.
Counts 59-61
: Guilty as charged
all three counts.
[282] To summarise, the accused
is found:
Guilty as charged on Counts 1, 2, 4, 5, 6, 8, 10, 11, 13, 14, 16,
17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32,
24, 35,
37, 38, 40, 41, 42, 43, 44, 45, 46, 48, 49, 51, 52, 53, 54, 55, 56,
57, 58, 59, 60 and 61.
Counts 3 and 7: Guilty of theft.
Not guilty and discharged Counts 9, 12, 15, 24, 33, 36, 39, 47 and
50.
SENTENCE
[283] Mr Mogale, this Court must now decide what sentence is
appropriate for the offences in which you have been found guilty.
To
arrive at the appropriate sentence to be imposed, this Court will
look at your personal circumstances, take into account the
nature of
the offences you have been convicted of, factor in the interests of
society, weigh same against the others and then blend
them with the
requisite measure of mercy. In the assessment of the appropriate
sentence, this Court must act even-handedly –
not
over-emphasising the effect of the crimes you committed or
under-emphasising any of the elements or purposes relevant to
sentencing.
[284] The main purposes of punishment are deterrence, prevention,
reformation and retribution. Punishment is expected to fit you
as a
criminal as well as your transgressions, be fair to society in
general and be blended with a measure of mercy according to
the
circumstances.
S
v Rabie
1975 (4) SA
855
(A) at 862G-H.
S
v Zinn
1969 (2) SA 577
(A).
[285] Courts of law are under a duty generally to sentence offenders
in such a way that they may or could be reformed or rehabilitated
for
the good of mankind or posterity. Punishment, read sentencing in
this instance, should not be cruel and inhumane.
S
v Karg
1961 (1) SA 231
(A) at 236.
[286] However, the peculiar circumstances of each case will and
should dictate which of the purposes of punishment should be given

prominence when a sentence is assessed: A cruel and heartless crime
may deserve a retributive and/or deterrent sentence.
[287] In
S
v Mhlakaza and Another
1997 (1) SACR 515
(SCA) the court held among others as follows at
519d-e:
“
Given
the current levels of violence and serious crimes in this country, it
seems proper that in sentencing especially such crimes,
the emphasis
should be on retribution and deterrence … Retribution may even
be decisive (S v Nkwanyana and Others
[1990] ZASCA 95
;
1990 (4) SA 735
(A) at
749C-D)
.”
[288] Nugent JA propounded the
same view in
S v
Schwartz
2004 (2) SACR
370
(SCA) when he mentioned the following at 378c-d:
“
…
in our law, retribution and deterrence are proper purposes of
punishment and they must be accorded due weight in any sentence that

is imposed. Each of the elements of punishment is not required to be
accorded equal weight, but instead proper weight must be accorded
to
each according to the circumstances. Serious crimes will usually
require that retribution and deterrence should come to the
fore and
that rehabilitation of the offender will consequently play a
relatively smaller role.
”
[289] The majority of the crimes
or offences of which you have been convicted attracts the provisions
of the Criminal Law Amendment
Act 105 of 1997 (the Minimum Sentences
Act). The mandatory sentences that this Court is by law obliged to
impose are life in prison
for each of them. I am obliged to impose
life sentences unless you come up with circumstances that are
substantial and compelling
enough for this Court to deviate from
imposing the prescribed minimum sentences. All the murders and four
of rape convictions
carry life sentences. The robbery with
aggravating circumstances convictions carry minimum sentences of 15
years with the court
having the discretion to go up to 20 years for a
first offender; 20-25 years for a second conviction and 25 years
and/or more for
a third and subsequent conviction.
[290] I have alluded to mercy,
above. In
S v Rabie
(supra)
the learned
judge held among others as follows at 861c-f:
“
Then
there is the approach of mercy or compassion or plain humanity. It
has nothing in common with maudlin sympathy for the accused.
While
recognising that fair punishment may sometimes have to be robust,
mercy is a balanced and humane quality of thought which
tampers one’s
approach when considering the basic factors of letting the punishment
fit the criminal as well as the crime,
and being fair to the
society.
”
[291] Holmes JA weighed in with
the following in
S v V
1972 (3) SA 611
(A) at 614D:
“
…
the element of mercy, a hallmark of civilised and enlightened
administration, should not be overlooked lest the court be in danger

of reducing itself to the plane of the criminal. True mercy has
nothing in common with soft weakness or maudlin sympathy for the

criminal or permissive tolerance. It is an element of justice
itself.
”
[292] On the other hand, sight should not be lost of the fact that
the legislature had a specific purpose and reasons to promulgate
the
Minimum Sentences Act. It was precisely to deal with situations as
serious and heart-rending as these that prevail in this
case.
[293] In
S
v Malgas
2001 (1) SACR
469
(SCA) the court ruled that specified and prescribed minimum
sentences that ought to be imposed as a matter of course and law and

should not be departed from lightly or for flimsy reasons. The
honourable court further held that the legislature has, however,

deliberately left it to the discretion of court to decide whether the
circumstances of a particular case call for a departure from
the
prescribed minimum sentence.
[294] I agree with the view that
courts are required to approach the imposition of sanctions or
sentences, conscious of the fact
that the legislature has ordained
specific minimum sentences in respect of certain specified
convictions and that in the absence
of weighty justification such
minimum sentences must be imposed.
[295] What should be at the back of a sentencing officer’s
mind is that account should be taken of the fact that certain
crimes
have been singled out for severe punishment and that any other
sentence that should be imposed, if it is not a prescribed
minimum as
prescribed by law, should be assessed or handed down paying due
regard to the bench marks which the legislature has
provided or set.
[296] There has been some
uncertainty as to what substantial and compelling circumstances are:
Some courts interpreted them to
mean circumstances that are over and
above ordinary circumstances while others have preferred the literal
interpretation that they
are ordinary circumstances which, when
viewed in the light of the peculiar circumstances of the case in
issue can be regarded as
substantial and compelling. Examples of the
former view is
S v
Vilakazi
[2008] ZASCA 87
;
2009 (1) SCR
552
(SCA),
2008 (4) All SA 396
and as example of the latter view we
can look at
S v Ntsele,
S v Dlamini, S v R
2010 (1) SACR 295
(GSJ).
[297] In the
S
v Vilakazi
case,
Stegmann J put it as follows in support of the first view:
“
…
the absence of previous convictions, the comparable youthfulness
of offenders, the unfortunate factors in their backgrounds, the

probable effect upon them of liquor which they may have taken, the
absence of dangerous weapons and the fact that the complainant,
if it
is a rape case, had not suffered any injury; are all factors that the
court sentencing a convicted rapist or person in the
ordinary course,
would weigh up as substantial factors relevant to the assessment of a
just sentence and as tending to mitigate
the severity of the
punishment to be imposed. However, in my judgment …
”
so goes the judgment:
“
…
these factors, substantial though they are, are matters that
Parliament must have had in mind as everyday circumstances that would

be found present in any or most of the crimes referred to in Part 1
of Schedule 2. Without emasculating the legislation, they
cannot be
thought of as compelling, the conclusion having to be that a lesser
sentence than the prescribed Parliamentary sentence
should be
imposed. This owing to the absence of any exceptional factor to
explain the prisoner’s conduct and the absence
of any
mitigating factors other than the everyday factors already mentioned.
As I understand this legislation, substantial and
compelling
circumstances must be factors of unusual and exceptional kind that
Parliament cannot be supposed to have had in contemplation
when
prescribing penalties for certain crimes committed in the
circumstances.
”
[298] In the
Ntsele,
Dlamini v R
matter the
following view was propounded:
“
In
determining whether in terms of
sect. 51
of the
Criminal Law
Amendment Act 105 of 1997
, substantial and compelling circumstances
justifying a sentence less than the prescribed minimum sentence
provided for are present,
all factors traditionally taken into
account in sentencing, or what has sometimes been described as
everyday or ordinary factors,
should also be taken into account. It
is not incorrect as a matter of law to have regard to such everyday
factors in deciding whether
one could depart from the minimum
sentences.
”
[299] It is my considered view that the above cases are not mutually
destructive of each other when regard is had to the intentions
of the
legislature. A combination of principles propounded in both will, in
my view, result in a balanced and acceptable application
of what the
law requires of a sentencing officer when a decision is made whether
there are factors that could justify a departure
from the imposition
of a prescribed minimum sentence.
[300] The accused herein has been found guilty of 16 counts of
murder with aggravating circumstances, 19 counts of rape with
aggravating circumstances, 1 count of robbery with aggravating
circumstances, 9 counts of kidnapping, 2 counts of theft, 1 count
of
assault with intent to do grievous bodily harm, 1 count of fraud, 1
count of attempted murder, 1 count of sexual assault and
1 count of
escaping from lawful custody.
[301] The 16 murders and 18 of
the rapes on which the accused has been convicted are subject to the
provisions of the Minimum Sentences
Act attracting life sentences
each because section 51(1) of the Minimum Sentences Act is applicable
to the murders and the rapes
were perpetrated or committed
accompanied by grievous bodily harm. Furthermore, in the rapes in
Counts 16, 17, 55 and 56 the victims
were raped more than once, thus
also attracting life imprisonment
per
se
. One rape
conviction, in Count 21, falls under Part 3 of Schedule 2 which in
terms of section 51(2)(b) attracts a prescribed sentence
of not less
than 20 years imprisonment if the offender is a third time or more
offender. The conviction for robbery with aggravating
circumstances
falls under Part 2 of Schedule 2. In terms of section 51(2)(a) of
the Minimum Sentences Act the prescribed minimum
sentence is 15
years.
[302] The State has also argued that in respect of the other
convictions, namely, kidnapping, theft, assault with intent to do

grievous bodily harm, fraud, attempted murder, sexual murder and
escaping from lawful custody, direct imprisonment on each of them
is
warranted.
[303] The accused elected not to
testify orally in mitigation of sentence or call any witnesses. He
did not want any pre-sentencing
reports to be compiled for him. His
counsel addressed this court from the bar.
[304] The accused’s personal circumstances are as follows: he
was born in April 1967, thus being 44 years now. This makes
him
between 41 and 42 years when the crimes were committed. He is yet
unmarried but professes to have two children aged 12 and
16 with
different mothers. He went to school up to Standard 10 (Grade 12)
but did not complete the standard. At the time of the
commission of
the offences as well as now he was unemployed and he claims that
after his girlfriend bought the Volkswagen Golf
mentioned in this
case he used it as a taxi to make a living. The State proved previous
convictions against him, namely:
21 September 1988: Rape – sentenced to 7 years imprisonment
by the Potgietersrus (Mokopane) Limpopo Regional Court.
9 February 1995: Tolwe Periodic Court, Limpopo – 2 counts of
housebreaking with intent to steal and theft – sentenced
to 3
months on each count.
9 February 1995: At Tolwe Periodic Court of Mokopane Magistrate’s
Court – trespass – sentenced to 1 month
imprisonment.
5 June 1996: At Naboomspruit Regional Court – rape –
sentenced to 10 years imprisonment.
28 January 2010: At Westonaria Magistrate’s Court – 12
counts of fraud – sentenced to R12 000,00 or 18 months

imprisonment. A further 18 months imprisonment suspended for 5
years on conditions. All 12 counts taken as one for purposes
of
sentence.
[305] The fraud conviction and sentence above were imposed while the
accused was in custody for these offences for which he was
arrested
on 27 March 2009.
[306] The State handed in Victim
Impact Reports in respect of the two surviving complainants, NM and
M“
M\'
T
in aggravation of sentence.
[307] According to her report, M
was severely injured during her assault and rape by the accused. She
was unconscious in hospital
for five (5) days. Her injuries included
the loss of three (3) front teeth, seriously damaged neck muscles due
to strangulation,
she had lacerations and scratches all over her body
and her face was swollen and contorted. She had to undergo facial
reconstruction
surgery at Chris Hani Baragwanath Hospital. She
indicated that after her sexual assault, her private parts (vagina
and anus) were
very painful and she developed a smelly discharge that
only became healed after she was given medication by Leratong
Hospital staff
where she was admitted. Her menstrual period has
changed dramatically from a three-day circle at the most to a circle
spanning
over 7 days, accompanied by excruciating pain which was
never the case before. She has become emotionally unstable and
withdrawn
and was not yet free to talk about what happened to her.
She has developed a phobia for men and fears walking in the streets
as
she fears being abducted and raped again. She reported having
nightmares and has been seriously traumatised by the incident. At

times she has a difficulty falling asleep. However, she has managed
to fall in love again and is presently seven (7) months pregnant.

Despite all the emotional support she receives from her family and
fiancé she still does not trust men. Her self-esteem
has
fallen very low and whenever she thinks back to what happened to her,
she feels very dirty and used. Her life is no longer
the same for
now.
[308] NM also indicated that
after the encounter with the accused, she no longer trusts men as a
seemingly gentle and loving man
turned into a monster in front of
her. Although she knows she is blameless she still blames herself
and has no peace in her conscience.
The report mentions that she will
be offered counselling for her trauma.
[309] The accused herein
systematically targeted, enticed, raped, murdered and robbed or stole
from defenceless and unsuspecting
women whom he sweet talked or
charmed with false prophesies when the accounts of the survivors is
taken into account. He has not
opened up to this Court and as such
it is not clear why he committed such blood-curdling deeds. Up to
this time the accused remains
unrepentant and is not showing any
remorse. It is true, as his counsel argued and submitted, that
non-admission of blame by an
accused person need not be held against
him
per se
.
However, it is my considered view, that after the graphic details of
what he did as heard through the mouths of the surviving

complainants, one would have expected the accused to relent and
expiate to what he was proven to have done. His own evidence did
not
cast any aspersions or doubt on the apparent truthfulness and
genuineness of the eyewitnesses’ accounts. This in my
view, is
an aggravating factor.
[310] The accused is not a
stranger to the courts of law: he started his criminal career at a
tender age of 21 when his previous
records are considered. It is
clear that after he served his last 10 years imprisonment that was
imposed on him in June 1996 for
rape, he went straight to his
criminal ways, deteriorating into a serial murderer and rapist.
[311] He is a repeat rapist and
fraudster and he is not a visitor to the life and doings of thieves:
he was previously convicted
and sentenced for housebreaking with
intent to steal and theft. It is very clear that previous sentences
did not manage to deter
or reform this accused.
[312] The offences the accused
has been convicted of are of a very serious nature indeed. It is
trite fact that sexual assault
and rape cases humiliate and seriously
infringe on a woman’s integrity, dignity and privacy. All but
two of the accused’s
victims were murdered after being abused
but the two that are still alive will live with severe psychological
traumas for the rest
of their lives.
[313] It is apparent and this Court accepts that the accused did not
use condoms when he raped some of his victims. This is an

aggravating factor, especially at this time and era when the whole
world, including our country, is grappling with the scourge
of HIV
and Aids, which are pandemics.
[314] It is also clear that human life is of no value to people like
the accused. He is a terror, a terrible terror! Lord of
the lonely
spots and bushes who goes around in search of women to rape and
murder! Before whom all women must give way or be smitten
to
nothingness and everlasting night, if I am to borrow from the
allegory of the book: Wind in the Willows.
[315] The accused’s
conduct is definitely a socially deviant one which invokes
indignation from law-abiding citizens and
is frowned upon and
abhorred by society. The crimes he committed are fearsome as they
are loathsome and despicable. It will not
be out of place to say
that ordinary citizens are disgusted and outraged by the accused’s
behaviour and handiwork.
[316] It is so that society in
general is crying out loud, demanding protection from people like the
accused. Our courts must,
as I can safely say they have started to,
rise to the occasion and pronounce themselves unequivocally against
such abuses as were
committed by the accused.
[317] For example, in
S
v Di Blasi
1996 (1)
SACR 1
(A) the Appellate Division pronounced its abhorrence at 10f-g
in the following terms:
“
The
requirements of society demand that a premeditated, callous murder
such as the present should not be punished too leniently
lest the
administration of justice be brought into disrepute. The punishment
should not only reflect the shock and indignation
of interested
persons and of the community at large and so serve as a just
retribution for the crime but should also deter others
from similar
conduct.
”
[318] Nugent JA put it in
S
v Schwartz (supra)
as
follows at 379b:
“
I
have pointed out that in the case of serious crimes, societies’
sense of outrage and the deterrence of the offender and
other
potential offenders deserve considerable weight.
”
[319] In
S
v Chapman
[1997] ZASCA 45
;
1997 (2)
SACR 3
(SCA) the honourable court ruled as follows at 5e:
“
The
courts are under a duty to send (the following) clear message to the
accused, to other potential rapists and to the community:
we are
determined to protect the equality, dignity and freedom of all women,
and we shall show no mercy to those who seek to invade
those rights.
”
[320] In
S
v Msimango and Another
2005 (1) SACR 377
(O) the court held that violence in any force is no
longer to be tolerated and that courts, by imposing heavier
sentences, must
send out a clear message both to prospective
criminals and other members of society that courts are seriously
concerned with the
restoration and maintenance of safer living
conditions and administration of justice are being protected.
S
v Phallo and Others
1999 (2) SACR 558
(SCA).
[321] This Court subscribes to
the above views and will not shirk its responsibilities by handling a
person convicted of the crimes
the accused has been found guilty of,
with kid gloves.
[322] Counsel for the accused
argued and submitted that it should be taken into account that the
accused was in custody for two
years before he is to be sentenced. I
am aware and mindful of the principles evolved and set out in
S
v Brophy and Another
2007 (2) SACR 56
(W) as well as
S
v Vilakazi
2009 (1)
SACR 552
(SCA) about the period accused persons spent in custody
before their cases are finalised. It is my considered view and
finding
that the accused’s circumstances can be distinguished
from the facts and circumstances prevailing in the above two cases:

In our case, the accused escaped from the Brixton Police Station
immediately after he was arrested. He had to be kept in custody
under
those circumstances. During January 2010 he started serving his 18
months prison term for fraud. The accused consequently,
in my view,
cannot be heard to claim the benefits set out in the above two cases
in the light of his continuous incarceration until
today when he is
sentenced.
[323] I agree with the argument and submissions of counsel for the
State that the accused should be removed permanently from society.

He does not deserve to be with ordinary and normal law-abiding
citizens. Him and his ilk belong in jail where they may be gainfully

utilised or employed to manufacture and produce equipment and
products as payment for their upkeep and for their sins.
[324] I have looked through the accused’s counsel’s
submissions and am convinced that no substantial and compelling

circumstances have been advanced before me to justify a departure
from the imposition of the prescribed minimum sentences.
[325] Accused, it is the considered opinion of this Court that you
are an evil and perverted serial murderer and rapist who poses
an
extreme danger to society in general and to women in particular. It
is my duty to ensure that you are permanently removed from
society.
[326] You implored Brig Byleveldt, according to your warning
statement to him in the following terms:
“
Director,
I want you to help me because when I am with a woman, I lose control
and don’t know what I am doing. I kill all
of them if they
don’t give me what I want.
”
[327] I am happy sir, to grant
you your wish. You cannot live with women in peace and in a loving
atmosphere. Whenever you see
them you kill them if you do not get
what you want from them or they don’t want to accede to your
demand or request. There
is no way you can be outside prison and not
come into contact with women. So, to protect you from yourself and
the women folk
from you, I am removing you for good from being in and
at the same space with them.
[328] The sentences that I impose upon you then are the following:
A.
(a) On the 16 murder convictions, i.e. Counts 4, 8, 11, 14, 18, 26,
29, 32, 35, 38, 40, 43, 46, 49, 52 and 61 you are sentenced
to
imprisonment for life on each count.
(b) On the 15 rape convictions, i.e. Counts 2, 6, 10, 13, 21, 25,
28, 31, 34, 37, 42, 45, 48, 51 and 60 you are sentenced to 20

(twenty) years imprisonment on each count.
(c) On the four (4) rape convictions in Counts 16, 17, 55 and 56 you
are sentenced to life to life imprisonment on each count.
(d) On the robbery with
aggravating circumstances conviction, i.e. Count 54, you are
sentenced to 15 (fifteen) years imprisonment.
(e) On the nine (9) convictions
for kidnapping, i.e. Counts 1, 5, 20, 27, 30, 41, 44, 53 and 59 you
are sentenced to five (5) years
imprisonment on each count.
(f) On the two (2) theft convictions i.e. Counts 3 and 7 you are
sentenced to 3 years imprisonment on each count.
(g) On the one (1) conviction of assault with intent to do grievous
bodily harm (Count 19) you are sentenced to 2 (two) years

imprisonment.
On the one (1) fraud conviction, i.e. Count 23, you are sentenced to
three (3) years imprisonment.
On the one (1) conviction for attempted murder, i.e. Count 57, you
are sentenced to five (5) years imprisonment.
On the one (1) conviction for sexual assault, i.e. Count 22, you are
sentenced to three (3) years imprisonment.
On the one (1) conviction for escaping from lawful custody you are
sentenced to three (3) years imprisonment.
B.
(a) The sentences in respect of the 15 rape convictions in Counts 2,
6, 10, 13, 21, 25, 28, 31, 34, 37, 42, 45, 48, 51 and 60
as well as
the life imprisonment sentences imposed in respect of the other four
rape convictions on Counts 16, 17, 55 and 56 are
ordered to run
concurrently with the life sentences imposed in respect of Counts 4,
8, 11, 14, 18, 26, 29, 32, 35, 38, 40, 43,
46, 49, 52 and 61.
The sentences imposed for the two (2) theft convictions, i.e. Counts
3 and 7 as well as the sentences imposed for the fraud conviction

(Count 23) are ordered to run concurrently with the sentence imposed
for the robbery with aggravating circumstances conviction
(Count
54).
The sentences imposed in respect
of the 9 convictions for kidnapping (Counts 1, 5, 20, 27, 30, 41,
44, 53 and 59) as well as the
sentences imposed for the one (1)
assault GBH conviction (Count 19) and the sentence imposed in
respect of the sexual assault
conviction (Count 22) are ordered to
run concurrently with the sentence imposed in respect of the
attempted murder conviction,
i.e. Count 57.
[329] To summarise your
sentences, you are sentenced to 16 (sixteen) life imprisonment terms,
plus 23 years in jail.
[330] In the very unlikely
situation where the Correctional Services Department may contemplate
releasing the accused on parole
in the future, it is the
recommendation of this Court, because of the complete absence of any
remorse or recognition of wrongdoing,
and in my opinion, there is
little prospect of rehabilitation or reformation, that the accused
should remain in custody for the
remainder of his natural life and
should never be released from prison.
[331] As I have already alluded
to at the beginning of my judgment this Court wishes to express its
appreciation to Prof Labuschagne,
the investigators in these cases as
well as the prosecution team and commend them for a job well
performed. In many instances
the general outcry is that cases have
been investigated and/or prosecuted in a sloppy manner causing
anxiety for those affected
by the crimes in question as well as
bringing the administration of justice into disrepute. The police
work in this case, especially
the expert linkage analysis evidence
tendered by Prof Labuschagne was of world class standard and it is my
considered opinion that
we all will be within our rights to fell
justifiably proud. May it not be only in this case but the good work
be continued in
other and all current and subsequent investigations.
I am not forgetting Adv Madondo, the defence counsel herein. It was
unfortunate
for him that he was saddling a loosing horse but he did
his best under very difficult and untenable conditions and
circumstances.
Unlike most of our younger advocate corps, he did not
engage himself in time wasting or embarrassing dramatics and was
courteous
and professional throughout the trial. This Court wishes
all who were involved in this trial well and the best in their future

efforts.
[332] Finally, the accused is declared unfit to possess a firearm in
terms of
section 103
of the
Firearms Control Act 2000
(Act 60 of
2000) as amended. Any firearm and/or ammunition that may have been
held by the accused must be seized and declared
confiscated to the
State.
______________________________
N
F KGOMO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
FOR THE STATE
..........................
ADV
E MOONSAMY ASSISTED BY
…...................................................
ADV N MULLER
FOR THE
ACCUSED
...................
ADV
MADONDO
DATE OF CONVICTION
..............
16
MARCH 2011
DATE OF SENTENCE
.................
18
MARCH 2011