About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2011
>>
[2011] ZAGPJHC 156
|
|
S v Chilenge and Another (SS20/4/2011) [2011] ZAGPJHC 156 (3 November 2011)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT REPORTABLE
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT
(JOHANNESBURG)
CASE NO:
SS20/4/2011
DPP REF NO:
JPV2011/0022
DATE:03/11/2011
In the matter between
THE STATE
and
JACINTO ANTONIO
CHILENGE
....................................................
ACCUSED
1
FELIX JOSE
MACHAVA
.................................................................
ACCUSED
2
J U D G M E N T
VAN OOSTEN J:
[1] The accused are jointly charged on
an indictment consisting of 36 charges. Accused 2, in addition, is
charged with one count
of escaping from police custody (Count 37).
Both accused pleaded not guilty to all the charges, and no plea
explanation, as to
the merits of the matter, was tendered on their
behalf.
[2] The charges preferred against the
accused arise from 6 separate incidents, all having occurred at
different houses in the Braam
Fisherville-area, Dobsonville,
Roodepoort. The incidents span over a period of approximately one
year, the first having occurred
on 11 April 2009 and the last on 17
April 2010. The events that occurred at each of the six incidents,
are strikingly similar:
the early hours of the morning was the
preferred time, at least two men wearing balaclavas, armed with
firearms, forcibly gained
entrance to the house; one usually remained
at or near the entrance door while the other proceeded to the bedroom
where the occupant/s
were sleeping commanding the handing over of
money and cell phones. In some instances cell phones were handed to
them while other
items such as clothing, TV and DVD sets were
removed. Finally, one or more of the women present in the house were
eventually raped
once, and in some instances, more than once and
further sexually assaulted.
[3] The accused, who have both
testified, deny all the allegations against them. The identity of the
offenders accordingly is in
issue. The State, broadly stated, relies
on the identification of two eye witnesses concerning the first
incident, the recent possession
of a cell phone that had been robbed
from one of the complainants concerning the second incident and DNA
evidence linking the accused
to different incidents which I shall
presently refer to.
[4] Before I proceed to examine the
evidence it is necessary to refer to the admissions that were by
consent, recorded in terms
of s 220 of the Criminal Procedure Act.
The admissions comprise a large number of formal aspects such as
photographs that were
taken of certain scenes, the medical
examination of the complainants, the obtaining, marking and dispatch
of sexual assault evidence
collection kits and the DNA results
obtained from the analyses. It was, however, agreed between the State
and the defence that
certain expert witnesses would, notwithstanding
the admissions, be called to testify. Those witnesses indeed have
given evidence
concerning those aspects.
[5] It further bears mentioning that,
except for the charges I shall presently refer to, the State has
succeeded in proving all
the essential elements in respect of each of
the housebreaking with intent to rob and robbery charges in regard to
each incident
as well as the rape of each complainant, referred to in
the rape charges. The only real issue accordingly, remains identity,
in
respect of which the State has also placed reliance on the
doctrine of similar facts evidence, to which I shall revert later in
the judgment.
[6] A convenient point of departure is
to refer to those charges on which the State has led no evidence or
where, for some other
reason, they do not require further
consideration:
Count 3 (Rape) is a duplication of
count 2 in respect of which the accused were discharged at the end
of the State’s case,
in terms of s 174 of the Criminal
Procedure Act.
Counts 5, 18, 24, 31, and 35 relate
to the unlawful possession of firearms. Although, as I have
indicated, the uncontested evidence
shows that firearms were in the
possession of the assailants at each incident, no particulars of the
firearms, except for the
colour and approximate size thereof, were
given. The evidence, moreover, and as was readily conceded by
counsel for the State,
is insufficient to sustain a finding of joint
possession of any of the firearms described in the evidence.
Counts 6, 19, 25, 32, and 36 relate
to the unlawful possession of ammunition. No evidence exists to show
that either of the accused
was in possession of ammunition.
Count 16 (Rape) is identical to count
15 (Rape) and accordingly constitutes a duplication which needs not
be considered any further.
7] This brings me to the remaining
charges. I shall, for the sake of convenience and ease of reference,
adopt and adhere to the
classification of the charges under the
respective Dobsonville CAS numbers, as set out in the indictment.
Against this background
I now proceed to examine the evidence in
regard to each of the incidents, under a separate heading.
DOBSONVILLE CAS: 278/04/2009
[Counts 1 (Housebreaking/Robbery); 2
(Rape: B N); and 4 (Rape: B N)]
[8] Two witnesses for the State
testified concerning the events that occurred during the first
incident: firstly, the complainant,
B N, and secondly, her cousin,
Onteretse Moono, who at the time was present in the house.
[9] The fact of the
housebreaking/robbery and the rape of the complainant having occurred
is not in dispute. A brief summary of
the events is the following: On
11 April 2009 the complainant, together with two others, was asleep
in her house. At approximately
02h30 that morning two unknown men
forcibly gained entrance to the house. The complainant as well as
Moono, for the first time
in their evidence, identified the two
intruders as accused 1 and accused 2. I pause here as it is
convenient at this stage to deal
with their evidence as to the
identification of the accused.
[10] The identification of the two
accused by these witnesses was a so-called dock identification. The
value thereof, as has been
held in numerous cases, often is doubtful,
for apparent reasons (see S v Maradu
1994 (2) SACR 410
(W)). Evidence
of a dock identification however, is admissible and it forms part of
the evidential matter upon which the case has
to be decided (see S v
Bailey
2007 (2) SACR 1
(C); S v Matwa
2002 (3) All SA 715
(E) 720 –
722). In the assessment of the value of such evidence, the necessary
caution must be exercised (S v Tandwa
2008 (1) SACR 613
(SCA) para
129 – 132 and S v Mdongwa
2010 (2) SACR 419
(SCA) para 10).
[11] The dock identification by the
two witnesses however, does not stand alone. Their identification is
confirmed by the DNA evidence,
which is to the effect that accused
2’s DNA profile can be read into both a swab that was taken
from her during the medical
examination, later that morning, at
06h35, by Dr Mashigo, as well as a sample taken from the
complainant’s panty. The DNA
analysis of the swab and sample
did not include the DNA profile of accused 1.
[12] The evidence of the complainant
as to the identity of the person who had raped her is on all fours
with the DNA results: she
testified that accused 2 raped her (Count
2) and that he thereafter instructed her to suck his penis (Count 4),
which she complied
with. Accused 1, she testified, was instructed by
accused 2 at gunpoint, to “come on top of her”. Accused
1, she further
testified, proceeded to open the zip of his trousers,
then lowered himself upon her and placed his penis on her private
parts,
but was unable to get an erection. Accused 1 then asked her to
kiss him, which she did. Accused 2 then proceeded to rape her.
[13] After careful consideration of
the evidence as a whole concerning this incident, I have come to the
conclusion that in the
circumstances of this case, the identification
of the accused by the two witnesses is reliable. My reasons for the
finding are
the following:
13.1 Both the complainant and Moono
were reliable witnesses and the cogency of their evidence is beyond
question. The complainant
testified that she “had a good look”
at the accused and that she could see them well. It is true, as she
has described,
that both accused were wearing balaclavas, covering
the upper part of their heads. She was, however, able to describe the
clothing
they were wearing.
13.2 The complainant’s evidence
that accused 2 was armed with a firearm and accused 1 with an “iron
rod” is materially
corroborated by Moono. Although Moono
described the item in possession of accused 1 as a “screw
driver”, I have no
doubt that the witnesses in fact observed
and described the same weapon.
13.3 The two witnesses further
corroborate each other in all material respects concerning the events
that transpired on the morning
of the incident.
[14] As against the evidence I have
outlined above, the version of the accused must now be considered.
Both accused relied on a
bare denial in respect of all the incidents.
Their denial crumbles down once consideration is given to the
evidence against them
showing overwhelmingly that they in fact
entered the complainants’ house on the morning of the incident.
Accused 1 transparently
and falsely raised allegations of a
conspiracy by the investigating officer to implicate him in the
commission of the offences.
I do not hesitate for a single moment to
reject their denial of being present at this and the other incidents,
as false beyond
any doubt. No argument to the contrary, in any event,
was advanced.
[15] For these reasons I find that the
State has proved beyond reasonable doubt that the two accused
forcibly gained entrance to
the house of the complainant and that
they robbed her of the items referred to in the indictment (ie 3 cell
phones, a TV set, blankets,
a music centre, Nike shoes and food).
[16] It remains to deal with the
accused’s guilt on each separate count concerning this
incident. On count 1 (Housebreaking/Robbery),
both the accused,
having been present in the house, accused 1 armed with an iron
rod/screw driver and accused 2 with what was described
as a firearm,
are guilty. On count 2, the evidence shows that accused 1 was
instructed by accused 2 to rape the complainant which
he, evidently,
did not intend doing. His request to the complainant to kiss him
clearly forms part of the simulation he was setting
up and there is
accordingly nothing to show that accused 1 in any way associated
himself with the conduct of accused 2 in raping
the complainant. It
follows that only accused 2 is guilty on count 2 (Rape) and count 4
(Rape).
DOBSONVILLE CAS 479/11/09
[Counts 7 (Housebreaking/Robbery); 8
(Rape: TM); 9 (Compelling/Causing V S to be present/watch a sexual
act); 10 (Rape: V S) 11
(Compelling/Causing T M to be present/witness
a sexual act); and 12 and 13 (Unlawful possession of firearm and
ammunition)]
[17] The complainants referred to in
counts 8 and 10, TM and V S, testified as to the events that occurred
on 17 November 2009,
at approximately 02h00.
[18] Similar to the first incident,
two unknown men forced entry into the house of M, who was at the time
sitting on her bed talking
on her cell phone while waiting for
transport to her workplace. Both men were, according to both
complainants, wearing black balaclavas,
which resulted in their
inability to identify them. S was asleep but was woken up by M, who
informed her that people were trying
to break in. The intruders
having gained entry demanded money. M observed that one of them was
armed with a firearm and S testified
that both were armed with
firearms.
[19] M was robbed of her cell phone by
one of the robbers, being the one, she testified, she had observed
was armed with a firearm.
She identified the cell phone as a Nokia
3500 Classic, which was handed in as Exhibit 1. The State led the
evidence of four further
witnesses to show that Exhibit 1 on 17
November 2009, at approximately 12h00 was sold by accused 2, who then
was in the presence
of accused 1, to Karmoni Maswanganyi, at his work
place, “Moses Fruit and Veg”. The transaction as such
was not disputed
by accused 2. He however challenged the model of the
cell phone that he had sold to Maswanganyi. According to him it was
a Nokia
1600 cell phone and not a Nokia 3500 Classic. Accused 1
denied that he was present when the deal was struck although he
admitted
having arrived there later that day.
[20] Accused 2’s denial that he
had sold Exhibit 1 to Maswanganyi is clearly false. Maswanganyi
testified as to the whereabouts
of Exhibit 1 which had eventually
found its way to Maphuto. At the request of the police he arranged
for its return and he handed
it over to the police. The cell phone
number of Exh 1 in use at the time of the robbery was forwarded to
Vodacom and Petro Heyneke,
employed as the Forensic Liason Manager at
the Forensic Services Division of Vodacom, testified concerning the
cell phone data
and the calls made and received from Exhibit 1 as
well as the change of sim cards that had occurred. This evidence was
left unchallenged
and on all material aspects corroborates the
version of M and Maswanganyi on this aspect.
[21] I accordingly conclude that it
has been proved beyond reasonable doubt that M’s cell phone,
that had been robbed during
the incident, was sold a mere few hours
later by accused 2, who then was in the presence of accused 1, to
Maswanganyi. Accused
2 therefore was in recent possession of the
robbed item. The finding of course, as I shall presently deal with,
is of crucial significance
once consideration is given to the
identity of the robbers.
[22] To revert to the incident, M
further testified that she was raped by one of the intruders. This
happened in the presence of
S who had been called from her room and
instructed to get onto the bed, although her head was covered with a
blanket.
[23] S testified that she was blinded
by the blanket but that she heard that M was being raped. She was
after that also raped. No
condom was used. Blankets were thrown over
them and the robbers left.
[24] The facts I have alluded to prove
beyond reasonable doubt that the complainants were raped and robbed
of the items referred
to in count 7.
[25] This brings me to the
identification of the offenders. The DNA analysis done in respect of
swabs obtained from the two complainants
(the same morning at 10h30
and 09h20 respectively, by Nurse Ntiulili) produced the following
results: accused 1’s DNA profile
was found in a swab taken from
S and accused 2’s DNA profile in that of M.
[26] The totality of the evidence
accordingly proves beyond reasonable doubt that both the accused were
present during this incident,
which is confirmed by accused 2’s
possession of and dealings with Exhibit 1, in the presence of accused
1, which had earlier
been robbed from M. The cell phone, as I have
alluded to, according to M, was robbed by the intruder who was in
possession of a
firearm, and it was he who had raped her. Accused 2’s
DNA profile moreover links him to the rape of M, and it was accused
2
who was in possession of the cell phone which he traded to
Maswanganyi.
[27] As for each of the individual
charges in regard to this incident, my findings are the following:
both the accused are guilty
on count 7 (Housebreaking/Robbery),
accused 2 is guilty on count 8 (Rape: T M) and accused 1 is guilty on
count 10 (Rape: V S).
It must further be accepted, on the evidence as
a whole, that accused 2 was in possession of a firearm and further
that the firearm
was in good working order as a shot was fired inside
the house, which the complainant testified, struck the floor. Accused
2 accordingly
is also guilty on counts 12 and 13 (Unlawful possession
of firearm and ammunition).
[28] It remains to deal with counts 9
and 11. These charges are based on the provisions of s 8 (1) of the
Criminal Law (Sexual Offences
and Related matters) Amendment Act, 32
of 2007. The operative part of the section makes it an offence to
“compel or cause”
a person 18 years and older to “be
in the presence of” or “to watch” the commission of
a sexual offence.
The evidence of the two complainants shows that
they were both ordered to be present when the rapes were committed,
although their
heads were covered with blankets. The accused
accordingly caused each of them to be present when the other was
raped. It follows
that accused 2 is guilty on count 9 and accused 1
on count 11.
DOBSONVILLE CAS 513/11/2009
[Counts 14 (Housebreaking/Robbery); 15
and 16 (Rape: L M) and 17 (Compelling/Causing Nzwandile Mazibuko to
be present at a rape);
and, against accused 2, count 37 (Escaping
from lawful custody)]
[29] The complainant, L M and her then
boyfriend, Nzwandile Mazibuko, testified as to this incident. The
date thereof was 18 November
2009, and the time approximately 03h00.
The complainant and her boyfriend were asleep.
[30] Forceful entry was once again
gained by two unknown men, both armed with firearms, their heads and
faces covered by balaclavas.
They demanded money and a cell phone was
handed to them. Several other items were taken. Mazibuko’s head
was covered with
a blanket and the complainant was raped by each of
the intruders, one after another, while Mazibuko was present. Only
the second
rapist, she testified, made use of a condom.
[31] Mazibuko’s version is
corroborated by the evidence of the complainant in all material
respects. Both were however, unable
to identify any of the intruders.
[32] The DNA results links accused 1
to the rape of the complainant: his DNA profile can be read into the
swab taken from the complainant
at 10h20 that morning, by Nurse
Segotso, who conducted the examination of the complainant, and who
further testified that the complainant
was pregnant at the time.
[33] It follows that accused 1 is
guilty on count 14 (Housebreaking/Robbery), count 15 (Rape: L M) and
count 17 (Causing Mazibuko
to be present at the rape).
[34] The State relies on similar fact
evidence in respect of accused 2’s involvement in this and the
other incidents to which
he has not been linked. The application of
the doctrine of similar facts evidence also arises concerning the
other incidents both
in regard to accused 1 and accused 2. The
similar facts relied upon, broadly stated, are the following: the
time of the incidents,
the area where they had occurred, that in each
instance the house was broken into and the manner in which the
robberies and the
rapes were committed.
[35] Similar fact evidence can be
admissible in order to identify an accused as the offender (S v D
1991 (2) SACR 543
(AD) at 546e; S v C
1996 (2) SACR 181
(C) 184f; S v
Moti
1998 (2) SACR 245
(SCA)). It is a prerequisite for the doctrine
to apply that there must be similarities in the events. In the
present matter the
six incidents bear the following striking
similarities: six houses in a particular area were targeted which
were broken into in
the early hours of the morning; the assailants
were in possession of firearms; their heads were covered wholly or in
part with
balaclavas; the occupants were threatened and the handing
over of money and phones was commanded; cell phones, when on hand,
were
there and then seized; other items such as TV and DVD sets were
robbed, and the complainants, once they had been subdued, all adult
women, were raped. (See S v M
1963 (3) SA 183
(T) at 186F where facts
similar to those in this case were considered (at p 187G) and S v M
1985 (1) SA 1
(AD) at p 4, where it was held that a sufficient nexus
must exist between the various incidents in order to show the
identity of
the assailant)
[36] In the consideration of the facts
relating to the six incidents in the present matter, the dates of
their occurrence are of
significance. The accused are cousins. They
were both involved in the first and second incidents, that occurred
on 11 April 2009
and 17 November 2009. The third incident, where
accused 1 was involved, occurred the day thereafter on 18 November
2009. Then followed
the fourth incident, where accused 2 was
involved, some two weeks later, and three days after that, the fifth
where accused 1 was
involved. The last incident, where accused 1 was
involved, occurred some four months later, on 17 April 2010. Taken
together all
the similarities and other factors I have referred to,
in my view, corroborate the other circumstantial evidence and provide
ample
justification for the finding that both accused were involved
in all six incidents.
[37] For these reasons, and having
applied the doctrine of similar facts evidence, I conclude that
accused 2 is guilty on count
14 (Housebreaking/Robbery) and count 17
(Causing Mazibuko to be present at the rape).
[38] Finally, I turn to count 37
(Escaping from lawful custody) against accused 2 only. Sgt Mushwana
testified that accused 2, the
day after his arrest, on 23 April 2010,
and while on their way walking back to their vehicles to return to
the police station,
with his hands cuffed behind his back, dashed
away in the direction of Slovoville. He gave chase and apprehended
accused 2 some
900 metres further. Accused 2 admitted the event but
claimed that he was assaulted by the police which compelled him to
escape.
The alleged assault was denied by Sgt Mushwana as well as
Warrant Officer Msweli, who was also present. Accused 2’s
allegations
concerning the assault cannot stand against the evidence
of the police officers and are clearly false. It follows that accused
2 is guilty on count 37.
DOBSONVILLE CAS 60/12/2009
[Counts 20 (Housebreaking/Robbery); 21
(Rape: KM); 22 (Assisting/Encouraging an accomplice to commit rape);
and 23 (Compelling/Causing
Roy Mavale to be present at a rape)]
[39] The complainant, K M, was the
only witness to testify concerning this incident. Her boyfriend, Roy
Mavale, who was with her
at the time, could not be traced. The
complainant’s evidence described what by now has become a
familiar scenario: four men,
two armed with firearms, forced entry
into her house, on 1 December 2009 at 03h00. They demanded money and
were told that there
was none. They proceeded to remove a number of
household items such as a TV set, a DVD set and CD’s which were
placed outside.
Upon their return her boyfriend was asked to cover
his head and they, in his presence, proceeded to rape her, one after
another.
They left and she heard two shots being fired outside the
house.
[40] The DNA results obtained from a
cervical swab taken of the complainant at 12h50 that very morning, by
Dr. Thompson, links only
accused 2 to the rape. It must therefore be
accepted that accused 2 was one of the intruders and that he raped
the complainant.
Accused 2 accordingly is guilty on counts 20
(Housebreaking/Robbery); 21 (Rape: K M) and 23 (Causing Roy Mavale to
be present at
the rape). Count 22 (Rape: K M) is a duplication of
count 21, albeit with the additional allegation that the accused
“assisted
and/or encouraged the third accomplice” to
commit rape. There is no evidence in support of these allegations.
[41] Accused 1, on the basis of the
similar facts doctrine that I have already dealt with, I find, was
also present and he therefore
is guilty on counts 20
(Housebreaking/Robbery), 21 (Rape: KM) and 23 (Causing Roy Mavale to
be present at the rape).
DOBSONVILLE CAS 91/12/2009
[Counts 26 (Housebreaking/Robbery); 27
(Abduction: S
M); 28 (Rape: SM); 29 (Rape: S M) and 30 (Rape: S
M)
[42] Two witnesses testified as to
this incident: the complainant, S M, and her boyfriend, Bonginkosi
Mthombeni. They were asleep
at 02h10 on 4 December 2009, when three
unknown men, wearing balaclavas and armed with firearms, entered the
house. They demanded
cell phones and money. One of them struck
several blows on Mthombeni’s head with the butt of a firearm.
Items were removed,
including a TV set, which Mthombeni was ordered
to take outside.
[43] The complainant was escorted
outside by two assailants. The third assailant remained behind with
Mthombeni. Having walked some
distance they arrived at a certain spot
in the veldt, where both raped her, one after another. She was
ordered to get dressed and
to return home. On her way home she came
across the third assailant, who, without more ado, raped her. In
addition he, after the
rape, inserted his penis into her mouth (Count
30) and after that ordered her to go home.
[44] Mthombeni corroborated the
complainant’s evidence on every material aspect. Both witnesses
were unable to identify the
assailants. Accused 1 however is linked
to this incident by the DNA results, obtained from a swab taken by
Dr. Thompson, at 08h35,
that very morning as well as a sample
obtained from the complainant’s pants.
[45] Accused 1 accordingly, is guilty
on counts 26 (Housebreaking/Robbery) and 28 (Rape: S M).
[46] Although the evidence on count 27
(Abduction: S M) shows that the complainant in fact was abducted, her
evidence only implicated
two of the three assailants in the
abduction. In the absence of evidence identifying the abductors, I am
unable to find that either
of the accused abducted the complainant or
that they were part of a common purpose to abduct the complainant. On
count 29 (Rape:
assisting/encouraging a third accomplice) no evidence
exists in support of these allegations against either of the accused.
Finally,
on count 30 (Rape: S M), the complainant, as I have alluded
to, testified that the act was committed after the third rape, while
she was on her way home. In the absence of identificatory evidence as
to who the assailant was, I am unable to find that either
of the
accused was involved in the commission of the crime.
[47] Accused 2, on the acceptance of
the similar facts, accordingly is guilty on counts 26
(Housebreaking/Robbery) and 28 (Rape:
S M).
DOBSONVILLE CAS 393/04/2010
[Counts 33 (Housebreaking/Robbery);
and 34 (Rape: NM)]
[48] The last incident occurred on 17
April 2010, at 02h45. The complainant testified that she was alone
and asleep in her house.
She woke up when three unknown men who had
gained forcible entry, were in the house. They wore balaclavas
covering their faces
and she was unable to identify them. Two
assailants were armed with firearms. They demanded cash and cell
phones. One of them proceeded
to rape her. No condom was used. All
the items listed in the indictment under count 33, were removed and
nothing was recovered.
They tied her up and left.
[49] The DNA results obtained from a
swab taken that same morning, at 11h30, by Nurse Segotso, links
accused 1 to the rape and
thus to both counts 33 and 34. Accused 1
accordingly is guilty on both these counts.
[50] Accused 2, on the acceptance of
the similar facts evidence, is guilty on count 33, having been
present during the incident.
In the absence of evidence to link him
to count 34, he is entitled to his acquittal on this count.
[51] In the result:
51.1 Accused 1 is found guilty on
counts 1, 7, 10, 11, 14, 15, 17, 20, 21, 23, 26, 28, 33 and 34 and
not guilty on the remaining
counts.
51.2 Accused 2 is found guilty on
counts 1, 2, 4, 7, 8, 9, 12, 13, 14, 17, 20, 21, 23, 26, 28, 33, and
37 and not guilty on the
remaining counts.
_________________________
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
COUNSEL FOR THE STATE
…........................
ADV LR SURENDRA
…
...........................................................................
ADV
BF MNISI
COUNSEL FOR THE
ACCUSED
…................
ADV M
BOSIKI
DATE OF JUDGMENT
…..................................
3 NOVEMBER 2011