S v Luruli and Another (SS 63/11) [2012] ZAGPJHC 293 (17 July 2012)

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[2012] ZAGPJHC 293
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S v Luruli and Another (SS 63/11) [2012] ZAGPJHC 293 (17 July 2012)

NOT REPORTABLE
REPUBLIC OF SOUTH
AFRICA
IN THE SOUTH GAUTENG
HIGH COURT
(JOHANNESBURG)
CASE NO:SS63/11
DATE: 2012/07/17
In the matter between
STATE
versus
RICHARD TSHIFHIWA
LURULI
…...............................................................
Accused
1
MICHAEL
KHOROMBI
..................................................................................
Accused 2
J U D G M E N T
WEINER J:
[1] This case epitomises
the dire state of crime in our country. The rape statistics are
horrific, up there as one of the worst
in the world. According to a
study of the South African Medical Research Council, in 2011, the
statistics are a strong reminder
of the severity and gravity of rape
in South Africa. The figures stand at approximately 55 000
reported incidents per year,
and unreported incidents are something
like 500 000 per year, that is one rape every minute in this
country. We are considered
by some as the rape capital of the world,
something to make us hang our heads in shame.
[2] Rape is used as a
weapon of power and control over those with lesser physical strength.
No-one is safe in the streets of South
Africa because of people like
the perpetrators of the crimes in this case, and what this case
demonstrates is that rape is regarded
by some as part of a night out
on the town, a way in which weak, drunk men entertain themselves
whilst humiliating the women upon
whom they prey.
[3] The facts of this
case are an example of the depths to which certain persons in our
community have sunk. It involves two paramedics
entering a dimly lit
and isolated area, to assist a toddler who had been severely burnt.
Whilst attending to the toddler they were
dragged from the ambulance
into the veld, where they were raped by three men, sexually assaulted
and humiliated in the most base
fashion. These brave and dedicated
women's lives will never be the same again.
CHARGES
[4] The accused in this
case are charged with the following: - Count 1, on 05 March 2010 and
at or near Durban Deep in the district
of Roodepoort, they unlawfully
and intentionally assaulted two women; Ms T and Ms R, and did, with
force and violence, take from
their possession cell phones and
jewellery. They also assaulted and took from the possession of one
Daleni Desmond Masinga, certain
items. They are therefore charged
with robbery with aggravating circumstances as defined in section 1
of Act 51 of 1977.
[5] Count 2 relates to
the unlawful possession of a firearm by the accused without being the
holder of a licence, permit or authorisation
issued in terms of the
Firearms Control Act, 60 of 2000
.
[6] Count 3 relates to
the unlawful possession of ammunition, the quantity and calibre of
which are unknown to the state without
being the holder of; a
licence; permit; dealer’s licence; manufacturer’s
licence; gunsmith licence or an; import, export
or in-transit permit
issued in terms of the
Firearms Control Act, 60 of 2000
.
[7] Count 4 relates to
the act of sexual penetration with the complainant Ms T, by
penetrating the complainant's mouth with
his genital parts, without
the consent of the said complainant.
[8] Count 5 relates to
the act of sexual penetration with Ms T, by penetrating her genital
parts with a finger, without the consent
of the complainant.
[9] Count 6 relates to
the act of sexual penetration with Ms T, by penetrating her genital
parts with his or theirs, without her
consent.
[10] Count 7 is framed in
the same way as count 6, as these complainants were raped several
times.
[11] Count 8 relates to
the accused unlawfully and intentionally compelling a third person, a
Mr P, without his consent, to commit
an act of sexual violation with
the complainant Ms T, in that they beat and kicked him to compel him
to have carnal sexual intercourse
with the complainant without her
consent.
[12] Count 9 relates to
the fact that the accused unlawfully and intentionally aided,
abetted, induced, incited, instigated, instructed,
committed and
counselled or procured another person, to wit one another, or their
co-accused, to commit a sexual offence by helping
each other to
intimidate the complainants to succumb to their sexual acts, with one
accused standing by with a gun while the others
were raping the
complainants and by instructing each other to exchange the
complainants when one was done with the first complainant,
Ms T.
[13] Counts 10, 11, 12,
and 13 relate to the same offences as counts 7 to 10, but in relation
to the second complainant Ms R.
[14] Count 14 relates to
the accused compelling Mr P to commit the act of sexual violation
with Ms R.
[15] Count 15 is in the
same terms as count 9 in regard to the second complainant, Ms R.
STATE’S SUMMARY OF
MATERIAL FACTS
[16] The State, in the
summary of its substantial facts, alleged that MsT and Ms R are
female paramedics who attended an emergency
call at Durban Deep, in
the district of Roodepoort, on the evening of 05 March 2010.
Whilst they were busy rendering
first aid care to the toddler, who
had been burnt, the accused and their companions arrived. The accused
pointed a firearm at the
two paramedics, as well as at two other men
who were in the ambulance with the toddler, and robbed them of their
personal belongings.
The accused further dragged the complainants out
of the ambulance and took them to the bush where they raped them more
than once.
[17] Mr P, who was
passing by, was dragged by the accused and compelled to perform
sexual acts with the complainants. As will be
seen from the evidence
presented by Mr P and the complainants, he pretended to do so and
whispered to the complainants to pretend
that they were being raped.
He too has been affected by this incident.
[18] The complainants
were taken to hospital for medical examination and specimens were
taken to be sent for forensic analysis.
Accused 1 is linked to
the sexual acts through forensic evidence.
ADMISSIONS
[19] The State alleges
that the accused, at all relevant times, committed the offences in
the execution of a common purpose which
existed, at the latest,
immediately prior to the commission of the offences and continued for
the duration thereof.
[20] The charges were put
to both accused and they pleaded not guilty to all of the charges put
to them. Their counsel, Mr Lebea,
stated in opening that there would
be no explanation in terms of section 115 of the Criminal Procedure
Act, as they exercised their
right to remain silent. Certain
admissions were made in terms of section 220 of the Criminal
Procedure Act. They are the following:
20.1. That a medical
examination was conducted on Ms T, the complainant in counts 1, 2, 3,
4, 5, 6, 7 and 9 by Dr Ngomo on
06 March 2010 at about 01:00;
20.2. That the
observations and findings, made by Dr Ngomo during the medical
examination, and as recorded on the attached form,
were true and
correct;
20.3. Similarly, that the
medical examination conducted on Ms R, the second complainant,
was conducted by Dr Ngomo on 06 March
at 02:00.
20.4. These reports were
handed in by consent.
20.5. According to Dr
Ngomo’s report, he stated that there was an alleged sexual
assault with vaginal and oral penetration
by two males. There were no
visible injuries on either of the complainants but they were in an
anxious state at the time, and he
concluded, in both cases, that
there was an alleged sexual assault.
20.6. That Constable
Thabang Shilajoe, on 06 March 2010, collected the sealed
sexual assault kit of Ms T's vaginal swabs
and Ms R's vaginal swabs
from Dr Ngomo, which were packed and sealed in exhibit bags with
serial numbers 09DIAB6119 and 09DIAB6080.
20.7. That Constable
Shilajoe, on 10 March 2010, forwarded the forensic kits
mentioned above, to the Forensic Science Laboratory,
and they were
packed and sealed in exhibit bags, which had certain serial numbers.
20.8. That there was no
damage or tampering with the forensic sexual assault kits from Dr
Ngomo, until they reached the Forensic
Science Laboratory for
analysis.
20.9 That the blood
specimens or samples which were drawn from the body of Leruli Richard
Chifiwa, accused 1, on 05 November
2011 at 21:20, by Dr Lloyd H
Thompson, was packed and sealed in exhibit bag, with serial number
063116390XX, and was then packed
in a forensic bag, with a seal, and
taken to the Forensic Laboratory by Constable Shilajoe.
20.10 That blood
specimens were drawn from accused No. 2, Michael Khorombi on 02
November 2011 at 15:10 by Sister DM Segotso, and
packed and sealed in
exhibit bag, with serial number 06D30A6384XX, and was then packed in
a forensic bag, sealed, and taken to
the laboratory for analysis, by
Constable Shilajoe.
20.11 There was no
tampering with the blood samples mentioned above, from the hospital
until they reached the laboratory.
[21] The affidavit of
Doctor Shameer Roman Govan, referring to the analysis of the exhibits
mentioned above, was admitted and the
exhibit was handed in. Dr Govan
confirmed that during the course of his duties on 07 April 2010, 12
April 2010, 22 April 2010 and
24 November 2010, he received the case
files and interpreted the DNA results of the samples pertaining to
this case. He made the
following findings on the DNA analyses: -
21.1 The male DNA results
obtained from the sample from accused No. 1 Leruli, matched the
DNA results obtained from, the vaginal
vault swab, the cervical vault
swab, the vestibule swab, the valve swab and the panty stain received
from Ms T, the first
complainant. It was also matched to the
specimen obtained from the underwear of Ms R. He concluded, in
that regard, that the
most conservative occurrence for the DNA result
from the abovementioned exhibits is 1 in 110 billion people. He also
found the
same DNA results relating to the Accused No. 1,Mr Leruli,
from the sample obtained from the vaginal vault swab of the second
complainant
Ms R. He concluded that the most conservative occurrence
for the DNA result from the vaginal swab for the corresponding loci
was
1 in 4.8 billion people.
21.2 The DNA results of
accused No. 2, Mr Khorombi, were negative, as were those obtained
from other suspects or persons who were
investigated, one Michael
Mapopo and one V Ngotha.
[22] The exhibits were
accepted and handed in by consent, and admitted by counsel for the
accused.
EVIDENCE
MS T (FIRST COMPLAINANT)
[23] Ms T was employed by
the City of Johannesburg emergency services, and was on duty on the
evening of 05 March 2010, a Friday.
They attended a scene, around
Durban Deep in Roodepoort, to attend an emergency of a baby who was
burnt. The mother and the child
were accompanied by a neighbour and a
relative when they brought the child to the ambulance. The mother
left the ambulance to go
and fetch clothing for the child, as same
had to be removed from the child when he was examined. While the two
paramedics and the
two male relatives were attending to the child,
she suddenly noticed another male person standing at the sliding door
of the ambulance,
pointing a firearm inside the vehicle. They were
instructed by him to keep quiet, and their cell phones were demanded.
Another
male then appeared from behind, got into the ambulance and
took the cell phones from the paramedics and the other two persons.
[24] Ms T confirmed that
they took from her possession a cellular phone, a Nokia N70, a few
coins, as well as a Sony Ericson cellular
phone from the second
complainant, Ms R. They also took a cellular phone from one of the
relatives of the baby, and some cash from
the second complainant.
[25] The person with the
firearm then got inside the vehicle, grabbed the first complainant
and pulled her out of the vehicle. He
then got back into the
ambulance and grabbed Ms R, pulling her out of the ambulance as well.
Although there were lights in the
vehicle, the shock and the
suddenness of the incident did not enable the witness, Ms T, to
identify the persons in the ambulance,
and outside the vehicle there
were no streetlights.
[26] Ms T stated she was
unable to observe any of them because whenever they tried to look at
them they were assaulted with open
hands and were told not to look at
their faces. They were then pulled into the veld by these men, and
followed by the male with
the firearm. As they were walking along,
the man with the firearm forced the complainant to remove her wedding
ring and wristwatch.
[27] The complainants
were then taunted by these men as to whether they knew what they were
going to do with them. They told them
that they were going to be
raped by
'vuil pops'
, which apparently
refers to someone who is dirty, disorganised and untidy. Ms T and Ms
R were then instructed to take off their
clothes. Ms T, as she was
undressing slowly, was hit by the man with the firearm who told her
to undress faster.
[28] They were then told
to put their clothes back on as it appeared that the perpetrators did
not think the place was safe. The
complainants were told to carry on
walking. The man with the firearm again taunted them by saying that
they were taking them to
lock them in a shack and rape them for a
week.
[29] They came across a
tar road, Randfontein Road, and had to get down on their knees and
wait for the vehicles to pass. When they
got to the other side where
there was another veld area, the man in possession of the firearm
instructed them to take off their
clothes. MsT attempted to look at
him, and he hit her in her face, telling her he told her not to look
at him.
[30] The man with the
firearm then unzipped his trousers and instructed her to go closer
and put his penis in her mouth. They suddenly
stopped because it
appeared that there was someone approaching from the other side. The
three men confronted the approaching man
(Mr P) and started
assaulting him, telling him that he was disturbing them. They made
him go down on his knees and covered his
face with his woollen hat.
[31] The men then began
telling the women that they thought that because they were paramedics
or nurses, that they were smart during
the day and more educated than
them. The man with the firearm then returned to Ms T and instructed
her again to go down on her
knees. He put the firearm at the side of
her head and told her to take his penis in her mouth.
[32] After a while, he
told her to stand up and turn around to face the other direction, and
bend over. He inserted his finger into
her vagina and then penetrated
her with his penis, and, as she stated, he raped her until such time
as he ejaculated. She could
not see what was happening to her
colleague, but the man with the firearm told his friends that he was
done with her, and asked
whether they wanted to have their turn. She
was then instructed by the other person who came over to where she
was, to lie on her
back, and he then also raped her until he
ejaculated.
[33] The men then grabbed
the passer-by, Mr P, and threw him onto MsT, and told him to have
sexual intercourse with her. The men
were telling the passer-by that
today he was going to have sexual intercourse with nurses. Ms T
remembered also that the person
who raped her the second time, placed
a jersey over her face.
[34] The men were still
assaulting Mr P, and took the complainant's boots, and were
assaulting him with the boots. Mr P whispered
to Ms T that she should
pretend as if he was raping her. He did not penetrate her at all,
nor, according to her, did he ejaculate.
They then pulled him away
from her and he sat beside her. The man with the firearm instructed
her to stand up, and the man with
the firearm then again inserted his
fingers into her vagina. He then attempted to kiss her and she saw
that Ms R was then standing
beside her as the jersey was removed from
her face. They were instructed to get dressed.
[35] The men instructed
the two women to swap their underwear. One of the men then came up to
her and twisted her breast and told
her that she was a whore. The men
were laughing and chatting to each other telling the two paramedics
that they were free to go
to the police because the police would
never find them.
[36] They, once again,
began assaulting and kicking Mr P. The two women were then instructed
to run away, and they ran towards the
road. They realised that Mr P
was running behind them. He accidentally fell into a pit, and the two
women helped him out of the
pit, and the three then ran towards the
road. As they got onto Main Reef Road, they saw a police vehicle
coming towards them and
they hailed it. They got into the vehicle.
They were driven to where the ambulance had been left, and they were
taken to the Flora
Clinic.
[37] Ms T said that later
the police recovered her cellular phone, and she identified it from
some scratch marks that were on it.
[38] Ms T was asked how
she felt about this incident. She said that it was so painful, and
also that they were no longer able to
operate like they did before.
Before the incident they were willing to service the community
freely, and would attend whichever
call they got at whatever time.
They had no panic in attending such calls, and would service several
squatter camps in their daily
routine. After the incident, they now
have to call the police as backup before they go out to attend a
call. This has resulted
in their service being substantially delayed
to the detriment of the community as a whole.
[39] She had also been
served with divorce papers by her husband because he could not cope
with what had happened to her. She is
unable to sleep because of the
trauma and unable to concentrate.
[40] The
cross-examination of Ms T consisted in the main of cross-examination
relating to the medical findings, particularly that
no injuries had
been sustained, and also whether they were in fact able to identify
the passer-by, having regard to the dark surroundings
and the trauma
and shock of the incident.
[41] The reason for this
became clear in the cross-examination, when it was put by Mr Lebea,
that the first accused's version was
that he was the passer-by, that
he was assaulted and forced to have sexual intercourse with the two
paramedics. Ms T denied this
on the basis of several issues. She said
that the assailants had spoken to them in isiZulu all the time,
whereas the passer-by
had spoken in isiTswana. Also the passer-by was
very slender and did not look like any of the accused.
[42] It was then put to
Ms T that the first accused's version was that he passed through the
veld and was accosted and dragged to
where the group was stationed,
and was struck with a firearm, as a result of which he was bleeding.
He was then forced by these
assailants to have sexual intercourse
with one or both of the ladies there. When questioned by the Court as
to what his version
was, whether he had it with one or both of them,
the Court was informed that as he had been injured he could not
remember whether
he had sexual intercourse with one or both. He
denied that he penetrated the ladies but says he had certain physical
contact with
their private parts.
[43] On behalf of the
second accused, his counsel stated that he would not ask any
questions as the second accused would continue
to exercise his right
to remain silent.
MS R (SECOND RESPONDENT)
[44] Ms R’s
evidence up until she and Ms T were dragged into the second veld,
confirms that of the first complainant. Her
cellular phone and some
money was taken from her and she was unable to identify her
assailants.
[45] Whilst they were
walking towards the veld, she was being slapped by one of the men,
who demanded their rings, and she confirmed
that they were first told
to undress then they had to dress again to go to another place. She
said that the man with the firearm
told her to lie down on her back
and two of the assailants then began accosting her when the one with
the firearm asked them why
they were both there, as they could not
rape her at the same time. He said one of them should stand guard
whilst the others were
busy raping the two women.
[46] She repeated what
the first complainant had said about the passer-by arriving, and the
assailants assaulting him. As she was
lying there, one of the men
came over to her, penetrated her with his finger and removed a tampon
that she was using. One of them
came over to her, put on a condom and
began raping her. When he was done, he told the passer-by to have
intercourse or rape her
as well.
[47] In explaining
exactly what had happened to her, she said the one assailant put on
the condom and penetrated her with his genital
part into her vagina.
She was told to lie down again so that the passer-by could rape her.
She confirmed that the passer-by told
her to pretend that they were
having intercourse. At that stage, she could not see his face because
they had covered his face with
the black hat that he had on but she
saw that he had dreadlocks, and spoke to her in Tswana.
[48] The man with the
firearm instructed her to stand with her back against him, but then
forced her to turn around and told her
to take his penis in her mouth
while he held his firearm against her head. He was assaulting her and
slapping her at the same time,
and then he also raped her by
penetrating her. She then witnessed that the passer-by was thrown
onto her colleague, and confirmed
that they were then told to swap
panties before they got dressed.
[49] She described the
passer-by as having dreadlocks and wearing faun trousers and stated
that he did not smell like the others
did. The perpetrators seemed as
if they had been consuming a lot of alcohol. She stated that they
were laughing and telling the
women that if they reported the matter
to the police, the police would never find them. She confirmed that
they then ran away and
that the passer-by then joined them. They
helped him out of the pit when he fell.
[50] When they reached
the police vehicle, the police thought the passer-by was one of the
assailants but the women told the police
that this person had in fact
helped them.
[51] When asked how she
felt about this incident, she said that it is painful because when
one is in the uniform of the paramedics,
and you go into a community
to deliver a service, you expect the community to protect you. She
said that this incident affected
not only the two paramedics but the
victim- the child that they were unable to help. It affected the
community as a whole because
they cannot get to where they are needed
as they now have to wait for police to be available, which is not
always immediate. She
says, in addition, both her and Ms T were
put onto ARVs in case they had contracted HIV, and it has affected
her married life
and her relationship, and her and her husband have
attended counselling.
[52]The
cross-examination, once again, went to the identity of the passer-by.
The witness was very certain that the passer-by had
dreadlocks and
khaki/faun trousers. The first accused’s version of him being
the passer-by was put to Ms R. His counsel
stated that he would
deny that he performed sexual intercourse by way of penetration, and
that when he was chased away by the assailants,
he proceeded to his
place of residence. Ms R denied this version.
MR P.
[53] He testified that he
was 20 years old. He was looking for a friend of his when he went
into the veld and encountered the three
males, one with a firearm,
who pointed it at him and dragged him towards where other men and two
females were sitting. He stated
that he was assaulted and threatened,
and told that they would shoot him in the head if he did anything
that they did not want
him to do.
[54] They pulled his
woollen cap over his eyes so he could not see who they were or what
they were doing and they then threw him
on top of one of the ladies
that was lying there. One of the males knelt down beside him and the
female who was lying on the ground.
Mr P whispered to the lady that
she should pretend to be having intercourse with him. One of the
assailants then came over, picked
him up and asked him if he was
done. He said yes and they then threw him on top of the second lady
and told him to have intercourse
with her.
[55] He stated that at no
stage did his private parts come into contact with the private parts
of the first lady. When he was pushed
on top of the second female, he
again told her to pretend that they were having sexual intercourse.
He stated that, at this stage,
the assailants were laughing at what
they were making him do, whilst they continued to assault him. They
then told the ladies to
stand up and to watch as they assaulted Mr P.
[56] His face was still
covered with his hat. He confirmed that he had dreadlocks at the
time, and that he was wearing faun trousers.
He also stated that he
spoke to the women in Tswana. Whilst he was still being assaulted,
the assailants told the females to run
away, and they did. He was
also instructed then to run away, and he followed the females and
caught up with them. As he was running,
he fell into a pit and they
helped him out. They continued running across the railway lines until
they reached a road.
[57] They encountered a
police vehicle on the road, and one of the policemen pointed a
firearm at him, thinking he was one of the
assailants. The two female
complainants told the police that he had helped them and they should
not shoot. They were then taken
in the police vehicle to where the
ambulance had been left.
[58] Mr P had given two
statements to the police. The first one was given to the police on 05
March 2010, the evening after the
incident occurred. In that
statement, he had told the police about the assault but had mentioned
nothing about the fact that he
was compelled to have sexual
intercourse with the two complainants. He gave the reason for this
that when he made the statement
he was frightened but also very
embarrassed to tell the police what they had made him do. He stated
that he was traumatised and
he was too embarrassed to even tell his
parents about the incident.
[59] However, it appears
that the police, having read the statements of the two complainants,
later visited Mr P and asked him if
he wished to make another
statement having regard to what the other complainants had stated. He
had kept this incident to himself
until the police came to visit him
on this occasion. The police had come to tell him when the next court
date was and his parents
were obviously surprised when the police
visited. He said it was then that he explained the whole story to the
police and his parents.
[60] In his second
statement dated 20 November 2010, he confirmed the story of the two
complainants about the assailants telling
him to have intercourse
with the two ladies, and he pretending that he was doing so. He
stated that he was still emotionally and
physically affected and that
this incident kept playing over and over in his mind.
[61] Under
cross-examination, counsel for the accused put to him that this
second statement was an afterthought and he was trying
to distance
himself as he was one of the assailants. He denied this and stated
that if he was, he would have run away and not gone
with the two
females, and with the police, and given a statement immediately
thereafter.
[62] Mr Lebea put to him
that he had consumed alcohol on that evening but the witness stated
that he had not. At that stage, Mr
Lebea reserved his rights to
consider the record in the previous proceedings which had taken place
when Judge van Oosten was asked
to recuse himself, and Mr Lebea
wanted to have access to that record. That aspect was left over and
dealt with later.
DAPHNE KHOZAMELA
[63] Daphne Khozamela was
the mother of the baby who had been burnt with boiling water. She
told the story as to how she had called
the paramedics who arrived
and, after they saw to the child in the ambulance, she had gone to
get clothing for her child. When
she returned, the paramedics were no
longer there, just her child and the neighbour and a relative,
Zacharia and Daleni. Her child
was screaming from pain and the nurses
had not finished attending to the child. They phoned the police and
another ambulance was
summoned and the child was then taken to
hospital. Ms Khozamela was not cross-examined to any extent in regard
to her story.
ZACHARIA MUANDO
[64] Zacharia Muando was
the neighbour of Ms Khozamela and was with the mother and child when
the paramedics arrived. He was accompanied
by Daleni, Ms Khozamela's
brother. He stated that whilst they were in the ambulance, and the
mother had gone to fetch clothes
for the child, he suddenly saw a man
at the door of the ambulance pointing a firearm at them. The child
was screaming and things
happened very fast as two other men joined
the first gunman and demanded phones and money from the occupants of
the ambulance.
They grabbed the two paramedics and took them with
them, telling Daleni and Zacharia not to leave the ambulance or they
would shoot
them. Some while later, a police vehicle arrived and they
thereafter left the ambulance.
WARRANT OFFICER ARTHUR
MASHIDI
[65] Warrant officer
Arthur Masidi was a constable in the Roodepoort Crime Prevention
Unit. At about 21:00, on the evening of 05
March, he was on duty in
Durban Deep. He later received a call from Captain du Plessis, per
radio, to come to a crime scene. He
met Captain du Plessis at the
scene where the ambulance had been left. Captain du Plessis explained
that two female paramedics
had been abducted by three males, and led
off into the veld. He left to search for these paramedics. As he was
driving around Myles
Stoker Circle, he noticed three people coming
into the road, two of whom were wearing reflectors, which are on the
uniforms of
paramedics. He saw that there were the two paramedics and
a male person running between them, who was wearing khaki pants, and
he thought that the male could be one of the suspects. However, the
paramedics explained to him that the man was not one of the

assailants but had assisted them. Both paramedics were crying at this
stage. He said they were hysterical and in a high state of
shock. It
was the male person, Mr P, who disclosed some information to him
about what had happened. He then took them to the ambulance
and went
off in search of the suspects but was, unfortunately, not successful
in apprehending them.
CAPTAIN DU PLESSIS
[66] Captain du Plessis
was stationed at Roodepoort on the night in question. He received a
call at approximately 21:45, over the
police radio, that an ambulance
was being attacked at the Myles Stoker Circle in Durban Deep. He
arrived and saw the ambulance
but found that it was empty. He called
for backup and also phoned the ambulance dispatch centre telling them
about the incident.
[67] A man and woman then
approached him and told him that they were inside the ambulance and
attacked by three other men, one with
a firearm, and robbed of their
personal items like jewellery and cell phones. They also told him
that the two female ambulance
workers were abducted by the armed men
and taken into the veld.
[68] A short while later
Constable Masibi arrived with the two female ambulance workers. He
saw that they were severely traumatised
One of them informed him that
she had been raped by the assailants.
DR NGOMO
[69] Dr Ngomo was working
at the Flora Clinic trauma unit on the evening in question. He had
examined both complainants at 01:00
and 02:00 on 06 March. He
confirmed the contents of his report, and that he had written;
"alleged sexual assault" with
vaginal and oral penetration
by two males; tenderness over the right face and; no other injuries.
[70] The State asked him
to clarify whether or not, if there is an allegation of sexual
assault but no injuries are noticed and
there are no tears or
bleeding in the female genital organs but rather that they are still
intact, whether that ruled out the possibility
of rape. He stated
that he could not rule out the possibility of sexual assault simply
because the examination was normal, as they
needed to take into
account other factors and circumstances. He stated that individuals
respond differently in different circumstances.
In certain cases, the
anxiety and secretion of adrenalin would make a person freeze but
some other people try to resist with force.
Others, physically,
cannot resist and, therefore, the response differs from one
individual to another. He concluded that the absence
of injury does
not rule out the possibility of sexual assault.
[71] Under
cross-examination, Mr Lebea put to him that as there were no injuries
he should have concluded that there was no sexual
assault. Dr Ngomo
answered by stating that when he examined a patient he received
information from the patient, and he also does
a clinical examination
and arrives at his own conclusions. His conclusion was that, despite
the absence of injuries, there was
still an alleged sexual assault
based upon his clinical examination and consultation with the two
females.
[72] Mr Lebea further
questioned Dr Ngomo about the absence of scaring, bleeding, swelling
and tears, and stated that this should
have been inconsistent with
sexual assault. The doctor repeated that he could not rule out sexual
assault because the clinical
examination is normal.
[73]On a question from
the Court to Mr Lebea, whether the first accused's version that he
was a passer-by also included the allegation
that the women were not
raped, Mr Lebea stated that the first accused, at that stage,
exercised his right to remain silent on that
aspect. Mr Lebea stated
that he would argue that the females were not raped, from what was
contained in the medical reports. It
is, however, noteworthy that it
was never put to either of the two complainants that they were not
raped and that they were fabricating
the events.
THANDI PATRICIA KENAHOPE
[74] Thandi Patricia
Kenahope resides in the same area in which accused No. 2 resides. She
knew accused No. 2 as he was a boyfriend
of her friend, Bongiwe. On
05 March 2010, a Friday, her, accused No. 2, Bongiwe and her
boyfriend Bunny Mabena were at Joe's Tavern
at about 19:00. They were
drinking liquor, and accused No. 2’s phone rang. He went out to
speak and then came back saying
he was going to “Uphanda”
which was explained to be a local dialect word meaning “to go
and devise means”.
[75] A little while
later, accused No. 1appeared, accompanied by a man named Mtimba.
Accused No. 2 left with accused No. 1 and Mtimba.
Accused No. 2 told
Bongiwe that he would see her later at the place where Mabena and
Thandi were staying. Thandi, Bongiwe and Mabena
then went to a tavern
in their residential area called Mandela's. They left Mandela's place
at about 23:00. Approximately 30 minutes
after they arrived home,
accused No. 2 arrived. He knocked at the door and Mabena opened the
door. When accused No. 2 entered,
he remarked to Mabena that because
Mabena was more interested in being with women, he would not have
good things like accused No.
2 had. He had some rings, watches, cell
phones and earrings that he said he was going to sell to make money.
He left with Bongiwe
shortly after that.
[76] Thandi stated that
the following morning, accused No. 2 came back to her residence with
Mtimba. They had a lot of money and
were buying alcohol. They were in
the company of Mabena and accused No. 1 arrived sometime later. She
saw accused No. 2 give accused
No. 1 R300. A while later, they left,
but about half an hour after leaving, accused No. 1, Mtimba and
Mabena returned. She confirmed
that she knew accused No. 1 as an
uncle of accused No. 2 and that they often came to the place where
she and Mabena were staying.
She stated that accused No. 1 was
staying at a place called Light, which was in Mathole, but she did
not know the exact number.
She had visited his place with Mabena. She
had also visited accused No. 2’s place in Mathole, which is an
informal shack
settlement. He stayed there with his brother Kierrie.
Accused No. 1 worked, and so did Kierrie, but other than that, none
of the
others were employed. She saw accused No. 2 virtually daily as
he was a friend of Mabena's, and confirmed that he did not work.
[77] Thandi was
cross-examined by counsel for the accused on two main bases. It was
put to her that she and her companions were
under the influence of
liquor and that it was very dark in the shack. This, according to
counsel for the accused, affected their
ability to see what was going
on in the shack and what accused No. 2 allegedly brought with him.
She admitted that they were under
the influence but "not very
much under the influence". Despite this, she stated that she was
able to see exactly what
accused No. 2 showed her.
[78] In regard to accused
No. 1, it was put to her that he worked every Saturday and that he
only finished work at approximately
15:00 or 16:00 on a Saturday and,
therefore, he could not have been seen by her on the Saturday at
about 13:00. It was put to her
that after finishing work in Randburg,
he went directly to his place of residence as he was not feeling well
as he had been injured.
Her answer was that he would be lying, he was
feeling well, he came to her place and she saw him. She was sober at
the time and
had no doubt that he was there. It was put to her that
she was lying in order to prejudice the accused, the reason being
that she
was involved in a conspiracy with Mabena and Bongiwe, and
the police (including Sergeant Shilajoe) to formulate lies and
implicate
the accused in the matter. She stated that she would not
come to court to tell lies to people whom she does not know, and for
no
reason.
[79] Counsel for accused
No. 1 then put his version;- He would deny that he was there on the
Saturday or that he got R300 from accused
No. 2. It was also put to
her that several other people, including one Ngotha and one Jaba and
Vutsilo were also arrested in regard
to this matter. She was asked to
comment on that but had no comment in regard to why those people had
not been charged.
[80] Accused No. 2's
version was that he would deny that he was ever in possession of the
items, being the necklaces, earrings and
the Nokia N70 cellular
phone. He would also deny that he said that he was going to
“Uphanda”. He denied that he went
to her place of
residence either on the Friday evening or on the Saturday morning, or
that he had lots of money with him. To all
of these questions, Thandi
replied that he was lying; he was in possession of those things and
those are the words he had used.
She had seen him both on Friday and
on Saturday.
[81] It was then put to
her that due to the light that was emanating only from a single
candle she could not have made out what
items accused No. 2
allegedly had. She stated "I saw those items because the accused
had them on both his hands and Bunny
brought the light closer to him
and we all went to see them".
[82] For clarity the
court asked whether accused No. 2 admitted that he was there,
but not that he had those items. Adv Lebea
clarified that his defence
was that he was never there. However, it was being put to the witness
in relation to credibility, that
with a single light, she would not
have been able to see those items.
BONGIWE MOYISA
[83] Bongiwe Moyisi was
the girlfriend of accused No. 2. She testified that she was at Joe's
Tavern on 05 March 2010, with Thandi,
Mabena and accused No. 2.
Whilst they were drinking, two males arrived to have a conversation
with accused No. 2. A little
while later, accused No. 2 came
back into the tavern and told Mabena that he was going to “Uphanda”.
He asked
him to look after Bongiwe, and he would fetch her later at
Mabena and Thandi's place. They then went to Mandela's Tavern and
later
to Thandi's place where she lived with Mabena.
[84] Accused No. 2
arrived a while later. Mabena opened the door for him and he entered.
There was a candle which was alight in
the shack. Accused No. 2
came over to the bed and told Mabena that, while he was busy sleeping
with women, he had missed out
on what accused No. 2 now had, and
could not share. They were shown a ring, necklace and earrings.
Accused No. 2 was
right next to the bed when these were being
shown to them. They were sitting on the bed.
[85] Bongiwe then left
with accused No. 2. He took her to her place of residence and
stated that he still had to go and "do
the rounds".
Sometime later, she heard that he had been arrested.
[86] Again, the
cross-examination centred on the quantity of alcohol imbibed by these
witnesses. It appears that they had had quite
a substantial amount to
drink, but that this had happened over a few hours. Bongiwe confirmed
that she was not that drunk that
she could not hear or see what was
going on at the time. She confirmed that she saw the items that the
accused had quite clearly.
[87] She confirmed that
she also knew accused No. 1 as the uncle of accused No. 2.
Accused No. 2’s version of denial
was put to the witness, who
confirmed that what she had seen and said was correct. She denied
that she would have conspired with
the other witnesses and the police
to prejudice accused No. 2. She stated "we are giving
testimony about something that
we know about".
[88] It was also put to
her that the real perpetrators are known within the area of
Roodepoort but they are free and roaming the
streets. She stated "we
know no-one who is involved in this matter, the only people that we
know is him". She admitted
knowing several of the other people
to whom reference was made, being Michael Mapopa and Magotha, but
denied that she saw them
that evening. She also stated that one of
the people who had come to the tavern to speak to accused No. 2 was
Mthimbane.
ASIF IQBAL
[89] To link the cellular
phone with these offences, the state called Asif Iqbal who was
employed at a cellular phone shop in Roodepoort.
He testified that in
early March 2010, accused No. 2 sold him a Nokia N70 silver cellular
phone. The accused approached him with
the phone and said he urgently
needed money to go home but did not have taxi fare. Despite the fact
that he did not have his ID
with him, he sold the phone to him for
R500 because he knew him.
[90] Iqbal stated that he
had seen Accused No. 2 around Roodepoort prior to the incident. He
had seen him at a club and had also
seen him at the tavern next door
his shop. He sold the phone three days later and the police traced
the cellular phone to one Sambo,
and brought it back to Iqbal for him
to identify. He did so.
[91] He told the police
that he did not know the name of the person who had sold the phone to
him but would be able to identify
him as he saw him around the area.
Iqbal was also arrested in this regard. Iqbal confirmed that he
identified accused No.
2 at an identification parade which took
place a while later. He said that when he was taken to the
identification parade no-one
told him who to point out and he
immediately recognised accused No. 2 when he saw him.
[92] Mr Lebea referred to
the statement that Mr Iqbal made to the police on 21 November 2010.
It was put to him that in the statement
he described accused No.
2 as being tall and slender and light in complexion. He was asked to
agree that the accused was in
fact dark in complexion. He stated that
it is possible that the police officer made an error because his
first language is not
English, and he had given the statement in a
language which he was not familiar with. He recalls that he told the
police that the
person was black. He said that he and the police
officer understood each other but he had to repeat several things in
order for
the police officer to understand what he was saying.
[93] Accused No. 2 would,
according to his counsel, dispute all these allegations as well as
the fact that he was acquainted with
Iqbal. When asked whether
accused No. 2 would deny that he knew the person from around
Roodepoort, accused No. 2's counsel stated
that accused would
exercise his right to remain silent in that regard.
[94] Mr Lebea then
challenged Iqbal’s statement on the following basis:- in regard
to the transaction, in paragraph 2 of his
statement, Iqbal had stated
the following:
"I cannot remember
the dates but it was the first week of March 2010, during the week."
[95] The basis of the
challenge was that the alleged robbery of the cellphone by accused
No. 2 only took place on 5 March 2010,
a Friday. Therefore, he could
not have brought the phone from accused No. 1 in the first week of
March 2010. Iqbal’s response
was that the incident took place
over a year ago and he could not remember the exact date. What he
could remember was that it was
in March and was during the week, a
Wednesday or a Thursday. It was put to Iqbal that he was detained in
the same section of the
prison as accused No. 2, and that accused No.
2 had seen him there. Iqbal stated that he did not see accused No. 2
in the prison
but remembers that he was detained around the end of
March or the beginning of April.
[96] It was put to him
that accused No. 2 would state that he had several conversations with
Iqbal as an inmate. Accused No. 2 would
say that the reason why he
was pointed out by Iqbal is because he knew him from seeing him in
prison, and identified him in that
identification parade for that
reason. Iqbal reiterated that he did not see the accused while in
prison.
[97] Iqbal repeated
"I remember he is
the one who came to sell it to me on that day, and we were sent for
identification. I could remember that
it was him".
[98] He also reiterated
that Accused No. 2 brought a Nokia N70 and it was easy for him to
point him out at the identification parade
because he knew him.
[99] Iqbal was also
accused by counsel for the accused of making a deal or conspiring
with the police to save himself from the cellular
phone debacle and
implicate the accused. Iqbal denied this saying he pointed him out
because he is the person who sold him the
phone.
[100] The documents and
forms relating to the identification parade were all accepted and
admitted by counsel for accused No. 2.
The photographs of the
identification parade where 12 people were standing, and Iqbal
pointing out accused No. 2, were admitted.
There was also no dispute,
and admissions were made in regard to the interpretation that took
place at the identification parade.
These relate to the facts that
there were no irregularities or any false information passed from the
interpreter's side. It was
further admitted that the person who
guarded the witness before the witness was taken to the
identification parade committed no
irregularities. A similar
admission was made in regard to the person who escorted the witness
from the room to the identification
parade, and from the
identification parade back to the room where the witness originally
was. This was all confirmed on behalf
of accused No. 2 by his
counsel.
CAPTAIN RADEBE
[101] Captain Radebe gave
evidence that he was in control of the identification parade. He
confirmed that he had filled out the
necessary forms which relate to
the identification parade and that he had signed them. He confirmed
that there were no irregularities
and that everything he wrote down
was in accordance with what he had seen on that day. He recorded that
the accused had wanted
people with clean-shaven heads on the parade,
and that the accused on his own chose three persons in that regard.
The accused had
stated that he was satisfied with the parade,
including the persons that were on the parade. He also confirmed that
Iqbal pointed
out accused No. 2 on the parade. It was confirmed by Mr
Lebea that the contents of the form were not disputed. However, Mr
Lebea
put to Captain Radebe that the accused had had a complaint as
he wanted to wear long trousers and that this was refused by Captain

Radebe.
[102] Captain Radebe
stated that that was not the truth because all requests that were
made by accused No. 2 to him were noted
on the identification
parade form which was handed in as Exhibit K.
[103] It was also put to
Captain Radebe that accused No. 2 would say that he saw and
spoke to the investigating officer in
the morning of the
identification parade, Sergeant Shilajoe, and he did not trust the
prospective identification parade.
[104] Captain Radebe
stated that if the accused had said that there was something that
would prejudice him, it would have been noted
on the form and the
parade would not have proceeded.
MICHAEL MAPOPA
[105] The next witness to
give evidence was Michael Mapopa. He gave evidence that he was
informed by one Sipiwe Nefawi of “something”
that had
happened. As a result of this information he went to see accused No.
2 and told him what he had heard. Accused No. 2 told
him to leave
that alone and not follow it up. They were at Mapopa's girlfriend's
place. They had gone to a tavern next door her
house and later he,
accused No. 2 and Sipiwe went to Backer's Tavern in town. He
left them at around 22:00 and the following
morning when he was
cleaning his vehicle he found some female rings in the vehicle that
they had used the previous night. He stated
that he did not know who
they belonged to but decided to sell them a little while later.
However, during that week accused No.
2 approached him and demanded
that he wanted his rings which he had left in the car. Mapopa told
him he did not have the rings.
Accused No. 2 told him that he knew
that he had sold them but Mapopa denied this to him. He stated that
he was arrested on 05 August
2010, on an unrelated offence, and he
was placed in a cell with accused No. 2 who had also been
arrested on an unrelated offence.
They began talking and Mapopa asked
accused No. 2 what had happened in the incident involving the
paramedics. Accused No. 2 then
divulged to him that he was involved
in the rapes with accused No. 1 and Mthimbane.
[106] Whilst in jail
together, he and accused No. 2 had an argument over a cellular phone
voucher. Mapopa then threatened accused
No. 2 that if he did not
give him access to the cellular phone voucher, he would say words
that would make Zuma, the president,
“come and listen to the
facts that accused No. 2 had raped the paramedics”. On 10
November 2010, he was booked out
of the cells by certain policemen.
He was asked if he knew accused No. 2. He admitted that he knew
him. They then asked what
he knew about the matter concerning the
paramedics.
[107] He denied that he
knew anything until they told him that accused No. 2 had
informed them that he was with accused No. 2
during the
commission of the offence. He denied this and stated that he wanted
to be taken to a doctor to extract blood to prove
his innocence.
Blood was, in fact, taken from Mapopa. They then went back to the
police station and Mapopa made a statement to
the police.
[108] In such statement,
Mapopa said that he was told by accused No. 2 that there were
two female paramedics; that he and two
others had come across an
ambulance and had seen the paramedics attending to a child. They had
robbed these people and then took
the two female paramedics into an
open veld where they robbed them of jewellery and cellular phones,
and also raped them. Mapopa
confirmed that accused No. 2 had admitted
to him that he was party to the rapes.
[109] It was put to him
that accused No. 2 had also had blood taken and that the results
were negative. His answer was
"yes, the accused
told me that blood samples were taken from him and he told me that
they would come back negative. He said
that during the commission of
the rapes he used a condom".
[110] He stated to the
court that he knew both accused No. 1 and accused No. 2
very well. In conversations with accused
No. 1, the latter had
admitted to being involved but that he had not used a condom.
However, he stated he could not recall
telling the police about this
issue of condoms.
[111] Under
cross-examination it was put to him that he and accused No. 2
were friends but they had had certain quarrels. Mapopa
stated that he
had mentioned President Zuma because on Friday 07 March
President Zuma and Premier Nomvula Mokonyane had come
to Durban Deep
concerning the matter. It was put to him that he got all of this
information from the newspapers, but Mapopa denied
reading the
newspapers, and stated that accused No. 2 had given him this
information. The question of the argument between
Mapopa and accused
No. 2 was traversed in some detail by counsel for the accused.
There was some lack of clarity in regard
to precisely what caused the
argument, whether it was the cellular phone voucher or the fact that
Mapopa had referred to telling
President Zuma about the accused.
Mapopa stated that when accused No. 2 came back from being
interviewed by the police on
05 November 2010, accused No. 2
stated to him that the police had told him that Mapopa had told the
police that accused No. 2
had raped the paramedics. He denied
that this had occurred because he was only booked out by the police
sometime later on 10 November
2010. He clarified that the original
altercation was about the cellular phone and that is when he
threatened about President Zuma.
Later, when he came back from being
interviewed on 10 November 2010, he was angry with accused No. 2
for implicating him.
[112] It was put to
Mapopa by counsel for the accused that all of the evidence he had
tendered was untrue. He answered "all
that I have testified
about is the truth because I was saying what I was told by the
accused". He was referred to his statement
in which he had inter
alia stated that, it was when they were in prison that accused No. 2
told him the details of being involved
with accused No. 1 and
Mthimbane in the robbery and rapes. He stated that, at that stage,
they were still friends and the
relationship only soured later at the
Krugersdorp prison as described above. Mapopa said he also realised
something was wrong because
when accused No. 2 returned to the
prison on 05 November 2010 he appeared not to be speaking to Mapopa
anymore and then he
accused him of implicating accused No. 2 to
the police. This did not appear to deal with Mr Lebea’s
question, but Mr
Lebea took it no further.
[113] In his statement,
Mapopa had also referred to the fact that whilst they were in prison
there was a Pakistani guy named Asif,
that he knew from Roodepoort
town, and that he worked at a cellular phone shop next to the
Backer's Tavern. Mapopa testified that
accused 2 appeared to be
hiding himself from this man, fearing that Asif would recognise and
identify him.
[114] Mr Lebea put to
Mapopa that that accused 2 would state that he was fabricating
his evidence for two reasons; firstly,
that whilst the accused was
incarcerated from March 2010, and whilst Mapopa was on the outside,
Mapopa had taken the money in accused
2’s bank account and not
paid it to his lawyers who were supposed to get it in order to apply
for bail. Accused 2 would
say that Mapopa was dodging him and
denying everything and that is why the argument began.
[115] The second reason
was that Mapopa was apparently facing a charge of murder and that he
was conspiring with the police to save
his own skin. Mapopa said that
the police officers involved in this case knew nothing pertaining to
the matter that he was facing,
and they did not promise him anything
if he testified. The other matter was not mentioned.
[116] I t was also put to
him that accused No. 2 would deny saying that he used a condom
to rape anyone. Mapopa re-iterated
that the accused had told him
these things in detail.
[117] On behalf of
accused No. 1 it was put to Mapopa that he would say that when
he arrived at prison, when he was arrested
in connection with this
matter, he was in great pain as he had been severely assaulted and
tortured. Mapopa denied this saying
he was lying, and also denied
that the accused was so upset that he could not speak to anyone,
Mapopa stated that he spoke to him
that day.
[118] It was put to him
that accused 1 stated that there would be nothing for him to
speak to Mapopa about because they were
not friends. Mapopa's
answered, "it is just that I never anticipated this can happen
and it is late by now. If it was permissible
I would have brought
photographs whereby I held parties for my children, I was in the
company of all the accused".
PITSO MATINYANA MABENA
[119] Bunny Pitso
Matinyana Mabena (Mabena) was the boyfriend of Thandi. He confirmed
the evidence given by Thandi and Bongiwe in
all material respects. He
added that when accused 2 had finished speaking on the telephone
on the Friday evening, he was told
by accused 2 that it was
Mthimbane and that accused 1 and Mthimbane were going to be there
within ten minutes. He said they
mentioned something about “Sibana”
or “Uphanda”.
[120] Mabena did not go
with them and accused 2 said he would fetch Bongiwe later at
Mabena's house. He confirmed that they
later went to his place of
residence and that sometime at approximately 23:00 accused 2
knocked on the door. Accused 2
came in and sat on top of the
dressing table next to the bed, and told Mabena that he was 'bayisa'.
This was interpreted by Mabena
as accused saying that he could not
see what was good in front of him, and he was making himself stupid.
[121] Accused 2 then took
out some rings and earrings and a silver N70 Nokia phone and some
loose coins and notes. He wanted to
sell the earrings to Mabena but
he did not have money. Accused 2 then left with Bongiwe. He
confirmed that on the following
day at about 10:00 accused 2 and
Mthimbane arrived at his place carrying beers. They showed him the
money that they had got
as a result of the ventures the night before,
and showed them the R300 that they were going to give to accused 1.
Accused 1
arrived at about 01:00 and was given his R300. At
about 04:00 they met up with Mapopa and accused 2 got into
Mapopa’s
vehicle and left with him.
[122] The following day
accused 2 inquired about the rings and Mabena reminded him that
he had had them the day before. He
started searching his pockets and
then stated to Mabena that it appeared as if Mapopa had taken the
rings. They then left and went
to his place of residence where they
found Mthimbane. He was sitting on a sofa which accused 2
pushed, and Mabena saw a bag
behind it. He threw the contents on the
sofa. Included in the contents were black female boots and some
bandages and cotton wool.
Accused 2 asked Mthimbane why he was
keeping those items, and Mthimbane then took the bag and threw it on
top of other shacks
near his. They left but did not find Mapopa that
day.
[123] Mabena asked
accused 2 where those rings came from, and accused 2 told him that he
had taken them from the nurses. Accused
2 explained that they had
found nurses in an ambulance and that they had taken the nurses with
them, and that he had taken the
one who was light in complexion and a
"Pakistani" which meant a woman who was worshiped. Accused
2 then said that Mabena
was stupid as he should have come with them
and could have had sex with nurses the previous night.
[124] Mabena was then
questioned by counsel for the accused on how well he knew accused 1.
He answered that he knew him very
well. Counsel stated that accused 1
would tell the court that he came visiting on the Saturday, but late
in the afternoon
and not at 13:00. Mabena repeated that he saw him at
about 13:00. Mabena admitted to having drunk quite a lot on the
evening of
05 March. It was put to him that in his statement he did
not mention the Nokia N70 phone. The statement was made on
11 November 2010,
and Mabena said that at the time of
making the statement, which was some months after the incident, there
were some things that
he had forgotten which he did not include in
his statement. He, however recalled, and had put in his statement
that he had seen
gold rings and gold earrings shown by accused 2.
[125] He was questioned
about the fact that he had earlier said that he did not know how much
the cellular phones were sold for
but in his statement said they were
sold for R900. He said that he had overheard accused 1 being
told that the phones had
been sold for R900.
[126] He stated that
accused 2 had shown them about three or four cellular phones on
the night of 05 March. It was put to him
on behalf of accused 2
that accused 2 would say that they knew each other very well
from Venda and the accused’s
version is that Mabena was here
just to tell lies and fabricate evidence to his prejudice. Mabena
responded "I love him very
much and he is my friend and I am not
telling any lies about him, I am just testifying about things that I
know of". The reason
put to him is that Mabena had apparently
now been arrested for breaching his parole and therefore he was in a
conspiracy with the
police to tell lies, and that he would therefore
receive some mercy from the authorities. Mabena stated that for
breach of parole
he was serving a very short term and it had nothing
to do with this matter.
[127] Mabena confirmed in
his statement that he did not tell the police about the accused and
Mthimbane, and their rape of the paramedics
as he was afraid of
accused 2 who had a firearm. That was the reason why he only
gave his statement and evidence after accused 2
was arrested. He
also stated that accused 2 had apparently implicated someone
called Mokiro, and that Mabena was then prompted
to come forward as
he knew that Mokiro was not involved.
[128] In regard to the
firearm Mabena stated that he saw the firearm virtually on a daily
basis whenever he saw accused 2;
the last time being on 05 March
2010.
[129] Mr Lebea applied at
the stage of the proceedings for access to certain documentation that
his clients are entitled to in terms
of Section 35 of the
Constitution. After legal argument on whether or not these documents
were available and/or relevant, it appeared
to me that they were
relevant and necessary in order for the accused to be able to conduct
their trial properly. I accordingly
gave a ruling on 02 December 2011
in which I ordered the state to hand over to counsel for the accused,
the entire contents
of the docket being:
129.1 All statements of
any witnesses or suspects that were made;
129.2 All forensic
documents dealing with the blood tests taken in relation to any of
the aforesaid witnesses and/or suspects;
129.3 Part C of the
docket, being the investigative diary;
129.4 The occurrence book
of the Roodepoort police station in relation to this case;
129.5 The pocketbook of
the investigating officer and;
[130] n this regard, I
ordered that the state is entitled not to disclose the identity of an
informer or a state secret or information
which might lead to the
intimidation of witnesses.
[131] I ruled that the
documents should be provided to counsel for the accused, either that
afternoon which was a Friday, or early
on Monday morning when the
matter would recommence.
SERGEANT SHILAJOE
[132] Sergeant Shilajoe
was the investigating officer in the present case. He was working at
the Honeydew family violence and
child protection and sexual offences
unit in March 2010. He had been working for the police for seven or
eight years. He was asked
why the witness Mr P had given two
statements. He testified that the first statement was obtained
directly after the incident while
the second was obtained after he
had obtained the statements from the two complainants, Ms T and
Ms R. He saw that Mr P had
not mentioned that he was forced to have
sex with the two complainants.
[133] He confirmed that
many people were arrested or suspected as the victims were not able
to identify the perpetrators. Some were
released because they could
not be linked in any way with the case. No-one who tested positive in
regard to their blood was released.
If the DNA was negative this did
not mean that a person was automatically excluded. He was still
investigated to see if there were
any other links.
[134] He received an
anonymous call from the Krugersdorp Prison. The caller informed him
that an incident had taken place inside
the prison. He informed him
that two prisoners had a fight inside the prison and one of them said
he will utter words that will
make President Zuma come to the prison.
One had accused the other of being involved with the rape of the
paramedics. He gave him
the names of the two prisoners who were in
prison, being accused 2 and Michael Mapopa.
[135] In regard to the
statements of Mr P, and the fact that he gave two statements,
Sergeant Shilajoe stated that he confirmed
that Mr P was very
frightened on the night of the incident and when he interviewed him
later. The explanation was given that Mr
P had been very embarrassed
and therefore had not given a full statement in regard to the fact
that he was threatened if he did
not have sexual intercourse with the
paramedics. His second statement was taken after the police had
received such information
from the two complainants. Sergeant
Shilajoe said he wanted clarity from Mr P.
[136] It was put to him
the police decided to visit Mr P and connive with him to specifically
mention the forced rape allegations.
The reason was to implicate the
accused, leaving the real perpetrators running free. Sergeant
Shilajoe denied this, stating he
had no reason to implicate these
particular accused.
[137] He was questioned
in regard to the investigation diary, and in particular a note in the
diary on 08 March 2010 from Captain
Pretorius. It stated that, “in
regard to the statement from Mr P, he must state that he was forced
to rape the complainants”.
At the time he had been
communicating with Captain Pretorius re the proceedings, and had
informed him that, having read the victims'
statements, this incident
was not mentioned by Mr P and that they should perhaps re-interview
Mr P to see whether this had occurred.
It took several months,
however, for Sergeant Shilajoe to interview Mr P and obtain a second
statement.
[138] He testified in
regard to the investigation diary, that he arrested accused 2 on
18 November 2010. Accused 1 was arrested
on 03 November 2010, before
midnight, but his warning statement was only issued after midnight on
04 November 2010. He stated that
accused 2 had informed him of
certain aspects of the matter and given a statement.
[139] At this point, Mr
Lebea objected on the basis that accused 2 would allege that he
was assaulted by the police and by
Sergeant Shilajoe which led him to
admitting certain facts. He stated that accused 2 would say that he
was told the police had
certain information and they wanted accused 2
to verify it. The statement related to addresses that accused 2
pointed out
when the police showed him certain names and asked him
for the addresses of those persons [the issue of the statements and
alleged
assault is dealt with later].
[140] Sergeant Shilajoe
continued that when he received the information from the informer
about the fight at the prison between
accused 2 and Mapopa that
he decided to interview both of them. The information, he said, was
that one of them said to the
other I will expose the information
about you having raped the paramedics. Sergeant Shilajoe said that
when he interviewed accused 2
on 5 November 2010, the latter
informed him that he, accused 2, had fetched accused 1 and
Ngotha at the area at which the
alleged incident had taken place but
only after the incident occurred. Mr Lebea stated that accused 2
would deny that he gave
this information.
[141] Sergeant Shilajoe
stated that, at this stage, he regarded accused 2 as a witness
and not a suspect. It was only after
he proceeded with other
investigations that they revealed that accused 2 had been linked
to the matter.
[142] It was put to
Sergeant Shilajoe that he should have cautioned accused 2 in
terms of the judge's rules, that he was entitled
to remain silent and
that what he said could be used against him. Shilajoe reiterated that
at that stage he did not regard accused 2
as a suspect. He was
only interviewing him about the altercation at the prison to see
whether or not he knew anything about the
incident involving the
paramedics.
[143] Certain media
reports were put to Sergeant Shilajoe in regard to the fact that the
media had stated that an arrest had taken
place on 20 March
2010. Sergeant Shilajoe said he knew nothing of the media reports, he
had not spoken to them and no one
had in fact been arrested on 20
March. He also stated that there were numerous suspects and people
arrested. In total 15 people
were arrested including Ngotha, Mashini,
Maphetse, Sambo, Moyo, Skosana and the others mentioned before. He
stated those that were
released could not be linked in any way to the
crime.
[144] Accused 1 was
linked by evidence they had received from witnesses and by DNA
evidence. Accused 2 had been linked
by the evidence given by the
witnesses, Mapopa, Mabena, Thandi and Bongiwe. The latter two
confirmed the other witnesses' statements,
as did the evidence of
Iqbal and the identification of accused 2 by him. The statements
of Mapopa and Mabena were given on
10 and 11 November 2010, according
to Shilajoe. This is what led to the further investigation of
accused 2, who was then arrested
on 18 November.
[145] According to the
statement of accused 2, he and Mapopa were not aware of what had
happened at the scene of the crime.
It was only at a later stage,
according to Sergeant Shilajoe, that information came that accused 2
was linked with the matter.
This he got from the statements of Mapopa
and Mabena.
[146] As appears from the
investigation diary, on 10 November 2010, they obtained the witness
statement from Mapopa, which implicated
accused 2. On 11
November they interviewed other witnesses and obtained statements
from Mabena.
[147] On 17 November
2010, Mapopa noted that consultation was made with the senior public
prosecutor to discuss and brief her about
this case, to have a full
picture. It was agreed that due to strong information and witnesses’
statements that linked the
accused 2 as the possible suspect, he
also needed to be charged and appear at court with the other two
suspects.
[148] On 18 November
2010, it is noted that accused 2 was arrested and charged at
Krugersdorp prison, and a warning statement
and additional forms were
completed.
[149] The statements from
the other witnesses Thandi and Bongiwe were obtained on 19 November
2010. These also linked accused 2
to the crime, and on the
following day, the further statement was obtained from Mr P.
[150] On 21 November
2010, Asif Iqbal, told the investigating officer that he would be
able to point out the person who sold the
cellular phone to him. This
led to the identification parade referred to above when Iqbal
identified accused 2.
[151] The objection by Mr
Lebea related to the evidence that Sergeant Shilajoe was giving in
regard to the witness statements of
accused 2 and Mapopa. Adv
Futshane, for the state, stated that Adv Lebea had opened this line
of questioning in regard to the investigative
diary and what was
contained therein. That evidence was not led in chief and only
elicited during cross-examination. When questioned
in this regard,
Adv Lebea clarified that there would be no trial-within-a-trial in
the sense that the statement was to be challenged
in that way. There
would be an argument only on credibility of the witness, Sergeant
Shilajoe, in relation to the version of accused 2.
[152] Sergeant Shilajoe
repeated that when he obtained the statement from Mapopa, Mapopa said
that he was not involved, as accused 2
had stated, in driving
the car to fetch the other accused. Mapopa then told them that
accused 2 should be the suspect and
that accused 2 was just
trying to exclude himself by involving everybody else.
[153] It was put to
Sergeant Shilajoe that when they interviewed Mapopa they told him
that accused 2 had implicated him. Therefore,
Mapopa denied that
he was involved and then implicated accused 2. It was then that
Mapopa gave a statement. Shilajoe denied
that it was only as a result
of accused 2 implicating Mapopa. The note in the diary states
that they booked Mapopa out in
order to confirm the statement of
accused 2, that Mapopa was with accused 2.
[154] At this stage, the
involvement of accused 2 and Mapopa, was not in the commission of the
offence but only in transporting
the other accused. They did not know
what the other accused had got up to. There was no offence alleged at
this stage that had
been committed by accused 2 or Mapopa. The
confirmation the police required was that accused 2 and Mapopa
were together in
the car after the incident.
[155] It was also put to
Sergeant Shilajoe that the evidence regarding the cellular phone
could not be accepted because Asif had
said he had received the
cellular phone from accused 2 during the first week of March, and the
incident only occurred on Friday
05 March. Sergeant Shilajoe stated
that it was not only Asif that gave evidence about the cellular
phone. Evidence was also given
by Mabena, and the cellular phone was
also linked to the complainant who identified it at the police
station.
[156] Sambo, the
purchaser, was linked to the cellular phone through a tracking
device, and he was arrested on 27 March 2010 in
this regard. He told
the police from whom he had bought the cellular phone from Iqbal
Asif. Iqbal then linked that cellular phone
to accused 2.
[157] Adv Lebea put to
Sergeant Shilajoe that accused 2 would state that before he gave
his statement he was assaulted and
was influenced into giving that
statement. This was denied by Sergeant Shilajoe. He stated that
accused 2 was inspected by
the chief of prisons, both before and
after he was released into Sergeant Shilajoe's custody. This would be
denied by accused 2,
according to Lebea.
[158] Mr Lebea put to
Sergeant Shilajoe that, as a result of the assault and the threats,
accused 2 gave the information in
his statement to the sergeant.
This information, according to Mr Lebea’s instructions was
true, but there might be certain
inaccuracies because of confusion
and because of the threats and the assaults.
[159] It was put to
Sergeant Shilajoe that other suspects had also been assaulted and
that the police were under pressure to solve
this crime and make
someone responsible. Accused 2, according to Shilajoe, had given the
names of the people he had picked up after
the incident. Mapopa, when
booked out on a later date, linked accused 2 to the crime.
Sergeant Shilajoe confirmed, when re-examined,
that with the
statements he had obtained from Mabena and the other witnesses, he
realised that accused 2 was linked, and was then
told to arrest
accused 2.
CAPTAIN PRETORIUS
[160] Captain Pretorius
made the note in the investigation diary that Mr P's statement had to
be elaborated upon. He was the commander
of the unit that was
investigating this matter, and he instructed the investigating
officer what to do. He said he discussed the
two statements of the
victims with Sergeant Shilajoe, and as a result made the note which
is contained in the investigative diary.
[161] He stated that in
remarking in the note that the witness Mr P “must” state
that he was forced to rape the complainants,
he meant that a further
statement should be obtained from Mr P to confirm whether or not this
was correct as reflected in the statements
of the two female
complainants. It was put to him that this was fabricated to prejudice
the accused. However, he testified that
there were no arrests of any
accused at that time and there was therefore, no reason to fabricate
anything against anyone. They
just needed clarification from the
witness. On a question from Mr Lebea, Captain Pretorius asked who it
was that they were conspiring
against as no-one had been arrested.
[162] That concluded the
evidence for the state.
EVIDENCE FOR THE ACCUSED
ACCUSED NO. 1
[163] Accused 1
stated that he came home from work on Friday 05 March at about 20:30,
and as there were no taxis he walked
through the veld. He saw three
people standing and two on the ground. Two of the three approached
him and pointed a firearm at
him and demanded money. They assaulted
him and pulled him to where the others were standing and sitting.
They were assaulting him
whilst doing this.
[164] They instructed him
to sleep with the ladies who were seated on the ground. He refused
and they took off his trousers and
threw him over to the ladies. They
beat him and one grabbed his penis and said he must insert it, but he
again refused and they
hit him again. He was pushed on top of the
first lady and could feel his private parts touching her. They then
moved him over to
the other lady and he was forced on top of her as
well.
[165] He testified that
he could not recall if he had an erection. He then stated that he did
not have an erection because of the
assault which frightened him.
This related to both female victims. When this was over, the
assailants told him to go in the opposite
direction that the ladies
went and he was going straight home. Before he reached his home he
met with Mapopa, who was driving past.
Accused 1 was bleeding from
his forehead but he could not remember what they had hit him with.
Accused 2 was not in the car with
Mapopa. He asked Mapopa to take him
to the police to report the assault and the forced rape, but Mapopa
said “no, if you
go the police will arrest you”.
[166] He did not tell
anybody about these events, not his wife nor any of his friends. His
explanation as to why he was linked to
the victims by virtue of his
DNA being found in the vaginas of both of the victims, was that he
did not know how that happened.
He then stated that as there were no
visible injuries, it was clear that the women had not been raped. He
stated that he could
not remember whether he inserted his penis into
their vaginas and could also not remember whether or not he
ejaculated. He did
not see what the others were doing or whether they
raped the victims.
[167] He testified that
he was employed at a meat supplier and that he worked Monday to
Saturday, and on Saturday from 08:00 until
15:00, and that he would
get home after 16:00. He denied he received any money on 06 March
2010, or that he was with Mabena and
that they had alcohol. He said
that on the Saturday after work he went straight home and he does not
know why he was arrested.
He thought it was perhaps because Mapopa
had informed the police after he had been with him in the car.
[168] Under
cross-examination, he denied that he had a close relationship with
Mapopa or Mabena prior to the incident. He knew Mabena
and Thandi as
the girlfriend of Mabena. He knew Mabena owned a tuck shop and that
Thandi worked there. He knew Bongiwe but did
not know that she was
having a relationship with accused 2. They all stay nearby in the
Mathole squatter camp. There were no bad
relationships between him
and any of these people.
[169] It was put to him
that accused 2 had informed Mapopa that he, accused 1 and Mthimbane
were parties to the rape. When asked
why Mapopa would state that
accused 2 had told him this, accused 1 said that Mapopa wanted
to hurt him because he has a case
in the High Court and he wanted him
to feel the same pain.
[170] He could give no
reason why Mabena, Thandi and Bongiwe had all lied about seeing him
on the Friday night and on the Saturday
morning. When asked why the
witnesses, including accused 2 would say that he was involved in
the rape, his answer was "I
did not rape them; if I did the
doctor would mention that there were injuries, and would have found
evidence from my blood".
It was put to him that there was
evidence found from his blood. He replied that he could not dispute
the report because he was
being assaulted and he cannot explain what
happened.
[171] He then testified
that he did not have an erection and did not penetrate either of the
victims. It was put to him that in
light of his evidence that he was
at the scene, in a different capacity, and the fact that he only told
Mapopa about it, how was
it possible that accused 2 knew what
happened. He was unable to answer the question.
[172] When it was put to
him that DNA was found inside the victims, Mr Lebea objected on the
basis that the DNA need not necessarily
be semen. However, the report
stating that his DNA was found inside the vaginas of the victims was
not disputed. Having regard
to the evidence of the two victims, and
the undisputed DNA evidence, it can be accepted that the semen found
contained the DNA
of accused 1.
[173] He testified he was
beaten and injured and had a wound on his forehead, which was
bleeding, but Mapopa still told him not
to go to the police because
they would arrest him for being amongst the rapists. He was then
asked how he knew that they were rapists
when he did not rape and he
did not see anyone else raping according to his evidence. His answer
was that he was in shock at the
time.
[174] He testified
further that he went to work on 06 March and only left after 15:00.
He was with a colleague Malebe and his boss
Heino. Both of them saw
him on the Saturday morning and knew that he did not leave work until
after 15:00. He stated that at the
time of the incident his head was
clean-shaven and he was wearing blue jeans and a blue work top. When
asked to comment on the
fact that the evidence of the complainants
was that the passer-by had dreadlocks, he stated he had no comment
and that maybe there
was another passer-by who came afterwards.
[175] Accused 1 testified
that he did not speak to these women, and when asked about their
statements that they had been whispered
to in Tswana to pretend they
were being raped, his answer was “no comment”.
[176] That was the case
for accused 1.
ACCUSED NO. 2
[177] According to
accused 2, he was implicated in this matter by Mapopa, but denied
that he was there and did not know the location
of the events at all.
He stated that the reason Mapopa was lying was because he and Mabena
had visited him in prison and Mapopa
had taken his bankcard to draw
money for an attorney but had not done so. When they were detained
together at Krugersdorp and he
asked Mapopa for the money, Mapopa
stated that he would show him what he was capable of.
[178] In regard to the
evidence of Thandi, Bongiwe and Mabena, he testified that their
evidence was “pure lies”. In
regard to the cellular phone
being sold to Asif Iqbal, he answered that the dates were wrong. He
could not have sold the cellphone
to Igbal in the first week of March
and therefore the evidence of Iqbal should be rejected. According to
him, all of the witnesses
had been threatened by the police and that
is why they were saying what they did.
[179] He denied that he
was with Bongiwe at the tavern earlier on, on 05 March, and stated
that she knew he did not want her to
drink and, therefore, she was
not there either. In regard to the jewellery and cellular phones
shown, once again he said that all
three witnesses were lying.
[180] There was no bad
blood between him and Mabena. In fact, Mabena had asked him if he
could stay at his home because Mabena was
on the run from the police.
In commenting on why Mabena would give the evidence he did, he said
he was pressurised by the police.
[181] In regard to the
sale of the cellular phone to Iqbal, he said that he did not know him
from before March 2010. He first saw
him because he was in the same
section in prison as the accused. He could not say why he noticed
this particular person in the
prison, which was very crowded. He
stated that the only reason why he was implicated by Iqbal, and why
he was identified at the
identity parade was because Iqbal knew him
from prison and therefore identified him. He, however, conceded that
all of the persons
on the identification parade were from that
prison. He also said that at the identification parade he asked
Shilajoe if he could
change his trousers into long trousers but he
was refused, and that the witness must have been told how to identify
him.
[182] The Court notes
that accused 2 admitted all of the contents of the reports relating
to the identification parade, including
the fact that the persons who
filled out the forms wrote exactly what was said to each person.
[183] When he was booked
out by Shilajoe and another investigating officer, the warders were
told that he was being booked out because
he had raped the
paramedics. He admitted passing through the head of the prison's
office, who asked him if he agreed to leave.
He said no, he did not
want to leave and he was scared of being assaulted. However, despite
this, he was made to leave with the
investigating officers.
[184] He was then taken
to the Roodepoort police station where he was handcuffed and his legs
were shackled. He was then taken to
Shilajoe's office and there were
six other officers there. Shilajoe told them that he had raped the
paramedics. He was assaulted
by one of them and later taken to an
upstairs office where he was “tubed”. Shilajoe was
present when this occurred.
They kept telling him that they will end
up getting the truth.
[185] At this stage
(15h30), the court adjourned because the witness appeared to be in
some distress. It reconvened the following
day. Accused 2 continued
to give evidence of the way in which he was tubed by having a tyre
tube placed over his face with pepper
spray vapour. It was at this
stage that Mr Lebea raised his objection to Accused 2’s
statement, stating that his statement,
together with Mapopa's
statement was used as the only basis to charge accused 2 with
this offence. As this statement was obtained
through assault, and
without warning, it could not be used. Mr Lebea did not, however,
request a trial-within-a-trial. He submitted
that the accused’s
version was that what was in the statement was true but obtained
through assault. He would argue against
the statement’s
admission on the basis of the credibility of the witness, Shilajoe
and Accused No. 2.
[186] The accused stated
that he was physically assaulted. When asked what they wanted of him,
he replied it was for him to tell
them the addresses of Mapopa,
Mthimbane, Jafas and accused 1.
[187] His evidence then
became rather confusing. I will attempt to set out the way in which
he explained the sequence of events.
He testified that after he was
tubed he was asked for the addresses and he then volunteered to go to
his brother's house because
his brother would know where accused 1
lived. He confirmed that they had the names of these people already,
and only wanted
to know where they lived. They asked him what he knew
about the incident with the paramedics.
[188] He stated that
before they asked him about the addresses and asked what he knew,
they did not warn him that he had the right
to remain silent or the
right to an attorney. He said they informed him when they got to
Roodepoort police station, that he might
be a suspect and they needed
blood for DNA testing. He submitted to it because it would prove the
truth. This was done on the same
day at Randburg Discovery Clinic
before the tubing took place.
[189] He was told that he
was a suspect in the matter about which him and Mapopa were arguing.
According to him they were arguing
about the bankcard and money, and
he did not know what the police were talking about. How this links
with his voluntarily submitting
to DNA testing in regard to rape
seems rather strange.
[190] He denied the
evidence of Bongiwe, Mabena and Thandi, that they had been at a
tavern, that he had gone out to “uPhanda”
and that he had
returned later that evening with the proceeds.
[191] His statement which
was handed in by his counsel was then dealt with. He admitted making
the statement on 04 November 2010
at 14:00, and at the time he
confirmed the correctness of the statement. According to what was put
to Sergeant Shilajoe the
statement was true but obtained through
assault. However, when testifying, Accused No. 2 refused to confirm
that the statement
was true.
[192] In regard to
passing through the head of prison's office, he stated that this
happened when he was booked out but not when
he returned. He did not
tell anyone at the prison about the assaults because he said nobody
would believe him. The injuries were
invisible but painful. He said
that after he arrived at the police station and was taken to
Shilajoe's office, he was then placed
in the cells. He was later
taken to Shilajoe's office.
[193] An inquiry was made
from him about the addresses of certain persons whose names were
given to him, as he entered Shilajoe’s
office. He was cuffed
with his hands behind his back and his legs were shackled. The two
investigating officers Shilajoe and Warrant
Officer Maluleka were
present with one Umbulani who was talking to the accused in Venda. He
was then tubed, as he stated in his
previous evidence, after which he
gave a statement. He was told that Zuma was going to make him rot in
jail if he did not give
a statement.
[194] After giving this
statement the investigating officers then gave him the names and
asked for the addresses. This is in conflict
with what he previously
stated, that what they wanted from him before the tubing were the
addresses.
[195] It was put to him
that his counsel had stated that the contents of the statement were
true but the problem was the way in
which it was extracted from him.
His answer was that the statement was written by Shilajoe and it is
not what the accused said,
he was just protecting himself. He then
altered his version by stating that the statement is what he said but
it is not the truth.
He admitted certain aspects of the statement. He
admitted that Mapopa had a car that was mentioned therein but he
could not remember
the registration number. He denied that he had
driven the Golf and said he saw they had had Mthimbane's name on the
list so he
put his name in the statement.
[196] He then testified
that everything contained in paragraph 4, which related to him and
Mapopa going to collect Mthimbane at
the scene, was untrue. The parts
stating that Mthimbane, Jafas and accused 1 came out from the
veld with two females, one
of whom was naked, and that they were
assaulting them, was also not true.
[197] He continued that
when the statement was taken down, the police explained in sequence
how the incident occurred and that was
why he mentioned things such
as the car, the railway line and the persons that he did. It was the
police’s words
[198] It appears,
therefore, that, at this stage, the accused has given three versions
in regard to the statement, firstly that
it was true but obtained
through assault; secondly that it was not true; and now that the
police in fact told him what to say.
[199] He then changed
that version as well by saying that they were asking questions and
therefore he said whatever crossed his
mind at the time. He said he
was protecting himself and they were asking questions, not putting
words into his mouth. This version
also changed when he then said he
does not remember anything about the statement. When questioned on
other aspects that he had
put into the statement about which he must
have known, his answer was that he did not remember any aspect of the
statement. He
does not remember telling the police about the females
or that they were black or anything else that appeared in the
statement.
He remembered what the police said but did not remember
what he said. When asked about certain other aspects in the
statement,
again his answer was that he did not remember anything
about the statement.
[200] In regard to the
identification parade he mentioned the fact that he was not allowed
to change his clothes. It was put to
him that he had not seen what
was going on or heard anything. Therefore, how could he state, as he
did in chief, that Shilajoe
had told Iqbal to point at him. His
answer was that he suspected that Shilajoe told Iqbal to point him
out. He stated that he did
not know Iqbal and Iqbal did not know him.
This despite his previous evidence that he saw Iqbal at prison. In
regard to the evidence
of Mabena, Bongiwe and Thandi, he said that
they were pressurised by the police into giving those statements.
I[201] t was asked of him
what he thought the purpose of the assault was, in other words, what
did they want from him. He was not
a suspect and the assault did not
achieve its purpose as the statement he gave implicates others and
not him. He was asked whether
he thought what they wanted him to do
and why they assaulted him was to get him to confess to the rape and
robbery. He said that
that is exactly what they wanted.
[202] When he was
questioned about his earlier evidence that they wanted the addresses
of certain persons, he said that when they
realised after the assault
that they could not get anything out of him about the rape and
robbery, and he would not confess, they
gave him the list of names
and wanted addresses. He said he believed he was a suspect because of
what Mapopa had told the police.
However, he did not dispute that
Mapopa was only booked out some days later after he, accused 2, had
been booked out.
[203] It was put to him
that Mapopa had given evidence that the argument in prison was over
the cellular phone and that Mapopa had
told him that he would tell
Zuma that he, accused 2, was the rapist. He denied this and said
that Mapopa had told him not
to pressure him about the money he owed
or else he would make sure that he took him down with him when Mapopa
went to trial.
[204] In re-examination
he raised for the first time the fact that Shilajoe had said when he
booked him out, that he was doing so
because Mapopa had phoned the
police to say that accused 2 was the rapist of the paramedics. The
statement that he gave on day
one of his booking out, does not
implicate the accused in this crime. Despite his evidence that what
they wanted from him and the
reason for the assault was to get him to
confess, they did not, over the next two days that he was in their
custody, attempt to
get him to make any further statements. He said
that he had given the address of his brother because his brother knew
where accused 1
stayed, and he went with the police to his
brother's house and then to accused 1's house.
[205] Adv Lebea then made
an application to recall Shilajoe in regard to a statement that
Shilajoe had made in regard to the booking
out of accused 2.
According to the statement Shilajoe said
"On Tuesday 02
November 2010 I booked out the suspect Michael Khorombi, accused 2
from Roodepoort cells for blood samples
to be drawn for DNA analysis,
and I took him to Discovery Clinic and handed in the blood sample
collection".
[206] Shilajoe was
recalled. He was asked why he had called accused 2 a “suspect”.
Shilajoe said that "he was,
in fact, a suspect in another case,
but when I booked him out in regard to this case he was just a
witness". He stated that
taking the witness's blood sample would
occur if, as in this case, the person volunteered to have his blood
taken to show that
he had nothing to do with the matter. This
confirmed accused 2's own evidence that he had asked to be taken
for blood tests.
[207] That concluded the
evidence for the accused.
ANALYSIS OF THE EVIDENCE
[208] The state argued
that all of its witnesses were credible and did not lie, and
corroborated each other in all material respects.
They could not
identify any of the accused. The witnesses, being the first and
second complainants, Ms T and Ms R, gave very credible
and heart
wrenching evidence about what had happened to them. There can be no
doubt that they were telling the truth. Similarly
in regard to the
passer-by Mr P. This type of evidence could not have been
fabricated. His version was corroborated by the
two females, both in
regard to what he looked like and the fact that he spoke Tswana. In
pretending that he was raping them, he
never penetrated or ejaculated
and this too was confirmed by the two victims.
[209] His explanation as
to why he gave two statements and only mentioned the forced rape
incident in the second statement is fully
acceptable. He was
understandably traumatised and embarrassed by the incident, and only
when he realised that the two victims had
already given the statement
and told of what had happened to him, did he tell the police the full
story. The two victims did not
know Mr P at all, and there would be
no reason for them to lie on his behalf.
[210] The evidence of
Daphne Kozamela and Zachariah Muandi is also acceptable in regard to
the fact that items were stolen from
them and that the two female
paramedics were dragged from the ambulance into the veld.
[211] The three witnesses
Mabena, Thandi and Bongiwe were all friends of the accused and
Bongiwe was the girlfriend of accused 2.
Both accused admitted
that there was no bad blood between them and any of those witnesses.
Other than saying that they were pressurised,
there appears to be no
reason why these three witnesses would come to court and lie about
people with whom they were well acquainted.
The three witnesses
corroborated each other in regard to them being at the tavern when a
call came from accused 1, who then
arrived and left together
with accused 2 and Mthimbane. They heard the plan about
“uPhanda” and witnessed the
accused leaving the tavern.
They all corroborated the fact that accused 2 then came back
towards midnight, with the proceeds
of that evening's “uPhanda”.
[212] Mapopa's evidence
is based upon what accused 2 told him happened on the night in
question. He appeared not to condone
what the accused had done in
raping the paramedics, and was clear about the dates on which the
incident occurred and the times
which were material. He stated that
they were family friends and would not lie about what he had been
told. It appears from his
evidence that he had no trouble with
accused No. 2 until the incident with the cellular phone voucher led
to a dispute with accused
No. 2. Although he threatened to
disclose the rape, he stated that it was clear, when he was
questioned by the police, that
they knew about this and he was not
the first person to inform them about this.
[213] This was
corroborated by Shilajoe who said he had received an anonymous phone
call that there had been an argument between
Mapopa and accused 2,
in which one of them had accused the other of being involved in the
incident. This led to Shilajoe booking
both of them out at different
times to interview them as witnesses in regard to what they knew.
[214] Mapopa stated that
accused 2 had described in detail what had happened. He also
described the occasion when the rings
had been left in the car and
these were the rings that accused 2 had stated he had taken from
the victims.
[215] T he evidence of
Doctor Ngomo was clear and unexaggerated. He stated on several
occasions that despite the fact that there
were no serious injuries,
he could not rule out sexual assault. He had concluded that there was
an alleged sexual assault because
of the evidence he had obtained
from the two victims. In any event, it was never put to the
paramedics that they were not raped
or sexually assaulted. So this
aspect of cross-examination of the doctor does not help the accused's
case in any way.
[216] Although the
witnesses Mapopa and Mabena were self-confessed criminals who were
either serving time or awaiting trial, this
does not affect the fact
that their evidence in this case was corroborated and consistent.
[217] The evidence of
Asif Iqbal has only one aspect which could be challenged by
accused 2, and that is that Mr Iqbal said
that the sale of the
cellular phone to him took place in the first week of March. However,
he testified that he could not remember
the date. His other evidence
in regard to knowing accused 2 and recognising him and then
identifying him at the identification
parade corroborates the fact
that this phone was sold to him by accused 2 after the events of
05 March. There is also the
evidence of Mapopa that accused 2
was attempting to “duck and dive”, as he put it, so as to
avoid Iqbal seeing
him in prison. The same cellular phone that was
identified by the first complainant was the cellular phone that was
stolen and
sold to Iqbal.
[218] The evidence
against accused 1 is overwhelming. There is the DNA evidence
which is not disputed. In addition, there is
the evidence of Mapopa
as to what he was told by accused 1, and the evidence of Thandi,
Bongiwe and Mabena, as to the fact
that he had been present on the
night of 05 March. They also testified as to what occurred the
following day when he was given
his share of the proceeds. His DNA
was found inside the vaginal cavities of both victims, and on their
underwear. His evidence
that he was the passer-by was totally
contradictory and fanciful. It also does not tie in with the forensic
evidence; it accordingly
can be rejected. The state has proved his
guilt beyond reasonable doubt.
[219] Accused 2's
version is also one that is beset with contradictions and
evasiveness. Other than the few statements that
were put to several
witnesses he elected to remain silent and denied that he was present
at all. He, however, gave no evidence
as to where he was on either
the Friday or the Saturday that the incident occurred. His DNA was
negative because, as he told Mapopa,
he had used condoms in the rape
of the victims.
[220] Whether or not
accused 2’s statement is admissible depends to a degree on
whether or not he was a suspect or a witness.
In this regard
reference was made to the case of S v Sebejan and Others
1997 (1)
SACR 626
, in which her Ladyship Satchwell J dealt with a statement
given by a person who at the time was considered a witness but later
became an accused. A suspect, if making a statement, must do so
freely and voluntarily. The judge's rules need to be utilised and

breaches of such rules may be of weight in determining whether a
confession had been voluntarily made without undue influence.
In
Sebejan supra, Satchwell J, at 622G-H, held as follows;-
“
In
short, non-suspects may be questioned without any cautions or
warnings whereas suspects, even in circumstances where answers

to questions may establish innocence, should receive the benefit of a
caution or warning”
[221] Section 25(3) of
the Constitution also refers to the right of an accused to a free
trial, and there are certain other rights
to which an accused is
entitled. These rights, however, only affect persons who are arrested
for the commission of an offence.
[222] A suspect would not
have been taken into custody and would not have been notified
formally of the cause of the arrest as opposed
to an arrested person.
Despite this, a suspect is entitled to certain rights.
[223] In deciding whether
the accused in that case was a suspect, Satchwell J referred to the
fact that she had made a statement
in the morning at approximately
10:00, and she said the statement was written as she gave it. She was
not informed that she was
a suspect. The court concluded that the
sergeant who took the statement did not consider accused 1 as a
suspect at the time
of taking the statement, which was some eight
hours prior to taking the statement of a witness who then implicated
the accused.
[224] It was held that
the accused in that case was not a suspect at the time of making the
statement and therefore she was not
entitled to be warned of her
rights, including the right to silence or to a lawyer. The statement
was accordingly admissible for
purposes of cross-examination.
[225] In the present
matter, Shilajoe says that accused 2 was not a suspect. He
denied that any assault took place and
stated that accused 2, at
the time, was a witness, and therefore he did not have to explain or
give the accused any warning
at that time.
[226] As appeared from
the evidence of Sergeant Shilajoe, as well as the documents that
were handed in, it was only as a result
of the statements of the two
witnesses who had been with the accused on that night that he was
then arrested. It was not as a result
of his statement or as a result
of the statement of Mapopa. Mr Lebea referred, in this regard, to S v
Orri and Another
2005 (1) SACR 63
(C), where Bozalek J held that a
statement made to police by a suspect, prior to being apprised of the
right to remain silent and
without a warning that it may be used
against the maker, would taint the fairness of the subsequent trial.
It was held, in that
case, that a suspect has those rights which are
similar to the rights held by an arrested person in terms of section
35(5) of the
Constitution.
[227] The statement to
which reference is made is not a statement in which admissions are
made in regard to accused 2. He was
not considered a suspect, in
my view, at the time he made the statement. It was only some two
weeks later, after other investigations,
and only after other
statements had been obtained from other witnesses that he was so
considered and arrested. The argument that
this statement led to
Mapopa making a statement, which led to the accused's arrest, is not
in accordance with the chronology of
events.
[228] There were certain
elements of Shilajoe's evidence that were in conflict, to a minor
extent, with some of the affidavits that
he had made in this case.
However, such minor conflicts do not detract from the whole of his
evidence. As was held in S v Mbili
2003 (1) SACR 97
at 105 I37:
"Even if Ramela had
contradicted his earlier statement (which in my view he did not) it
would not follow that the remainder
of his evidence necessarily fell
to be rejected. No doubt a Court will be cautious before accepting
the remaining evidence of a
witness who has made conflicting
statements on oath, but whether he does so will depend upon the
particular circumstances."
[229] According to Mr
Lebea, accused No. 2 was tricked into making a statement which was
used in obtaining Mapopo's statement, and
Mapopo's statement led to
the accused's arrest. This, according to Mr Lebea, rendered the
entire chain of events unfair.
I[230] In dealing with
the weight that one should place on the statement made by accused No.
2, the Court is met with four or five
versions given by the
accused as to the circumstances surrounding the making of the
statement. These have been set out above.
[231] His evidence, in
regard to the tubing and the assaults that followed, was never put to
Shilajoe in cross-examination.
[232] The statement,
according to what was put to Shilajoe, contained the truth and the
problem was the way in which it was extracted,
that is by assault.
However, in evidence, accused 2 denied that the statement contained
the truth and stated that it was what he
said but it was not the
truth. He later stated that, when the statement was taken, the police
officer explained, in sequence, exactly
how the incident occurred,
and he then based his statement on what the police said.
[233] He then changed his
version, stating that the police asked questions and he answered the
questions but did not give true answers.
When he was probed further
in regard to the statement, his answers were that he could not
remember what he had said, and finally
his version was that he did
not remember any aspect of the statement.
[234] Accordingly, the
Court is left with the accused's version and that of Shilajoe.
Shilajoe stated that the accused was not a
suspect but a witness at
this point and did not need to be warned. He denied that any assault
took place, and stated that the accused
gave his statement
voluntarily and without any duress. In my view, the evidence of the
accused in this regard has to be rejected,
and the statement made by
him is admissible in evidence.
[235] In any event, the
statement that the accused gave is exculpatory, insofar as the
accused is concerned, in that he distances
himself from the events
and places others at the scene. The only aspects that are relevant
insofar as the accused's guilt is concerned
are those which show that
he had certain knowledge about the events which he could not have had
unless he was there.
[236] This statement did
not, as the accused alleges, lead to the investigating officers
interviewing Mapopo and then arresting
accused No. 2. Prior to the
statement being made, the police had stated that they were going to
interview Mapopo as well. Even
after Mapopo's statement was made, the
accused was not arrested.
[237] It was only after
Mabena's statement was obtained that the police felt they had
sufficient evidence to charge accused No.
2. The statement of Mabena
would have been sufficient for the police to arrest accused No. 2.
Even if accused No. 2’s statement
was not admissible, there is
sufficient evidence obtained both prior to and after the accused's
arrest. This evidence against the
accused, being the statements of
Mapopo, Mabena, Bongiwe and Thandi, as well as the evidence of Iqbal
and the identification of
the accused, is sufficient to prove the
accused's guilt beyond a reasonable doubt.
[238] The counsel for the
accused also argued that common purpose had not been established. The
evidence above establishes that
the accused went together with a plan
to commit certain crimes that night. From the evidence of the
complainants and Mr P, it is
quite clear that they acted in concert
with each other in committing the crimes of which they are accused.
[239] In S v Thebus and
Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC), the Constitutional Court dealt with
the doctrine of common purpose, held as follows in the judgment of
Moseneke J
[18] “The doctrine
of common purpose is a set of rules of the common law that regulates
the attribution of criminal liability
to a person who undertakes
jointly with another person or persons, the commission of a crime."
[240] Moseneke J referred
to Burchell and Milton, Criminal Law 2ed at 393, in which they define
the doctrine of common purpose as:
"Where two or more
persons agree to commit a crime or actively associate in a joint
unlawful enterprise, each will be responsible
for the specific
criminal conduct committed by one of their number which falls within
their common design. Liability arises from
their “common
purpose” to commit the crime."
[241] Common purpose can
arise either from a prior agreement or from an "active
association and participation in a common criminal
design with the
requisite blameworthy state of mind", see S v Thebus at 336.
[242] The Constitutional
Court also referred to the case of S v Mgedezi
1989 (1) SA 687
(A)
and the Court held in the Thebus case at paragraph 22 that:
"There remains no
doubt that where the prosecution relies on common purpose as a basis
for criminal liability in a consequence
crime such as murder, a
causal connection between the conduct of each participant in the
crime and the unlawful consequence caused
by one or more in a group
is not a requirement."
[243] In the Thebus case,
the counsel for the accused argued that in so finding in Mgedezi, the
Supreme Court of Appeal had failed
to develop the doctrine of common
purpose in accordance with section 39(2) of the Constitution. The
Court held at paragraph 40:
"Common purpose does
not amount to an arbitrary depravation of freedom. The doctrine is
rationally connected to the legitimate
objective of limiting and
controlling joint criminal enterprise."
[244] Moseneke J stated
as follows:
"The doctrine…
serves a vital purpose in our criminal justice system. Absent the
rule of common purpose, all but actual
perpetrators of a crime and
their accomplices will be beyond the reach of our criminal justice
system, despite their unlawful and
intentional participation in the
commission of the crime. Such an outcome would not accord with the
considerable societal distaste
for crimes by common design. Group,
organised or collaborative misdeeds strike more harshly at the fabric
of society and the rights
of victims, than crimes perpetrated by
individuals. Effective prosecution of a crime is a legitimate,
‘pressing social need’.
The need for ‘a strong
deterrent to violent crime’ is well acknowledged because
‘widespread violent crime is
deeply destructive of the fabric
of our society’. There is a real and pressing social concern
about the high levels of crime.
In practice, joint criminal conduct
often poses peculiar difficulties of proof of the result of the
conduct of each accused, a
problem which hardly arises in the case of
an individual accused person. Thus there is no objection to this norm
of culpability
even though it bypasses the requirement of causation."
[245] The Court in Thebus
also rejected the appellants' claim that their conviction under the
doctrine of common purpose denied
them the right to be presumed
innocent.
[246] In assessing the
evidence as a whole in this case, it is trite that the State bears
the onus of establishing the guilt of
the accused beyond a reasonable
doubt and the converse is that they are entitled to be acquitted if
there is a reasonable possibility
that they might be innocent, see S
v Mbili above, at paragraph 57.
[247] Nugent JA referred,
in this regard, to the case of S v Radebe and Others
1998 (1) SACR
422
(SCA) at 426 where the following was stated:
"The question for
determination is whether, in the light of all the evidence adduced at
the trial, the guilt of the appellants
was established beyond
reasonable doubt. The breaking down of a body of evidence into its
component parts is obviously a useful
aid to a proper understanding
and evaluation of it, but in doing so, one must guard against a
tendency to focus too intently upon
the separate and individual part
of what is after all a mosaic of proof. Doubts about one aspect of
the evidence led in a trial
may arise when that aspect is viewed in
isolation. Those doubts may be set at rest when it is evaluated again
together with all
the other available evidence. That is not to say
that a broad and indulgent approach is appropriate when evaluating
evidence, far
from it. There was no substitute for a detailed and
critical examination of each and every component in the body of the
evidence,
but once that has been done it is necessary to step back a
pace and consider the mosaic as a whole. If that is not done one may

fail to see the wood for the trees."
[248] Taking the evidence
as a whole, that is, all of the state witnesses as opposed to the
evidence of the accused, it my view
that the guilt of the accused on
all of the crimes but one has been proved beyond a reasonable doubt.
The court finds that their
versions are not reasonably possibly true
and are rejected.
[249] The details of the
counts upon which the accused are found guilty are set out above in
paras [4] to [14]. In the result, the
accused are found guilty on: -
249.1 count 1, robbery
with aggravating circumstances;
249.2 count 2, the
unlawful possession of a firearm;
249.3 counts 4, 5, 6 and
7, rape [Ms T].
249.4 count 8, compelled
sexual assault [Mr P].
249.5 Count 9, lawfully
and intentionally aiding, abetting, inducing, inciting, instigating,
instructing, committing and counselling
or procuring another person,
that is one another or the co-accused, to commit a sexual offence by
helping each other intimidate
the complainants to succumb to their
sexual acts [Ms T];
249.6 counts 10, 11, 12
and 13, rape, [Ms R];
249.7count 14, compelled
sexual assault [Mr P];
249.8 count 15, of aiding
and abetting, inducing, inciting, instigating, instructing,
committing and counselling or procuring another
person, that is one
another or the co-accused, to commit sexual offences by helping each
other intimidate the complainants to succumb
to their sexual acts [Ms
R];
[250] On count 3,
possession of ammunition, the accused are found not guilty, no
evidence being led in this regard.
[251] For clarity, the
accused are found guilty of robbery; of the unlawful possession of a
firearm; of eight counts of rape; of
two counts of compelled sexual
assault; of two counts of compelling another person to commit a
sexual offence. They are found not
guilty of possessing ammunition.
Weiner J
Dates of hearing: 17, 18,
19, 21, 24, 25, 26, 27, 31 October 2011, 30 November 2012, 2, 6
December 2011, 10 April 2012, 9, 10, 11,
12, 13 July 2012
Date of judgment: 17 July
2012
Counsel for the State:
Adv Futshane
Attorneys for the State:
National Prosecuting Authority
Counsel for Accused: Adv
Lebea
Attorneys for Accused:
Legal Aid South Africa