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[2016] ZAGPJHC 181
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S v Mbasigidi (SS214/2015) [2016] ZAGPJHC 181 (5 July 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: SS214/2015
DATE:
5 JULY 2016
In
the matter between:
THE
STATE
And
RUDYANI
RONALD
MBASIGIDI
......................................................................................
ACCUSED
JUDGMENT
DOSIO
AJ:
INTRODUCTION
[1]
The accused has been arraigned on six (6) counts of rape, and one (1)
count of kidnapping, one (1) count of attempted murder
and one (1)
count of murder. The accused pleaded not guilty to all counts.
The identity of the perpetrator in respect to
all counts was placed
in dispute by the defence.
[2]
In respect to the six (6) rape counts, which are counts 2,3,4,6,7,
and 8, the State alleges that the accused contravened the
provisions
of section 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act , 32 of 2007. The State alleged
that these
five (5) offences all fall within the ambit of section 51(1) Part 1
of Schedule 2 offences, as envisaged in the Criminal
law Amendment
Act, 105 of 1997 (“Criminal Law Amendment Act”).
[3]
In respect to count nine (9) the State alleges that this is a crime
of murder read with the provisions of section 51(1) and
schedule 2 of
the Criminal Law Amendment Act.
[4]
Subsequent to this Court explaining to the accused that assessors
could be appointed to assist this Court, the accused elected
to
proceed in the absence of assessors.
[5]
The State is represented by Advocate Marasela and the Defence Counsel
is Advocate Netshifhefhe.
[6]
In respect to counts one (1) to four (4), the State alleges that on
the 10
th
of February 2012, near Z, in the district of R, the accused kidnapped
M P M by forcing her into the veld and then raped her by
inserting
his penis in her vagina without her consent.
[7]
In respect to counts five (5) to seven (7), the State alleges that on
the 12
th
of February 2013, near Z, in the district of R, the accused raped B
R, stabbed her with a knife and also inserted his penis into
her
vagina without her consent.
[8]
In respect to count eight (8) and nine (9), the State alleges that on
12
th
of March 2013, near Z, in the district of R, the accused raped B M,
by inserting his penis in her vagina without her consent and
thereafter killing her.
[9]
At the inception of the trial, certain admissions were made in terms
of section 220 of the Criminal Procedure Act 51 of 1977,
(“
Criminal
Procedure Act&rdquo
;), which were incorporated into one document.
These exhibits were marked as exhibits “A”, “B”,
“C”,
“D”, “E”, “F”,
“G” and “H” respectively. The admissions
referred to
are the following;
i.
The indictment marked as exhibit “A”.
ii.
A medical report compiled by Doctor
Hlungwane. A collection of forensic evidence in respect to the
complainant on counts one (1)
to four (4), namely
M
P M, which was all marked as exhibit “B”.
iii.
A medical report compiled by Doctor Mlandu.
A collection of forensic evidence in respect to the complainant on
counts five (5) to
seven (7), namely B R, which was all marked as
exhibit “C”.
iv.A
post-mortem report compiled by Doctor Julian David Jacobson, in
respect to the deceased on counts eight (8) and nine (9), namely,
B
M, was marked as
exhibit “D”.
In addition, Counsel for the accused admitted that
the chain from the time
that the deceased
died, up to when the deceased was removed from the scene and
examined by the pathologist, the deceased received
no further injuries.
v.A
key, sketch plan and photo album compiled by Constable
Makhisonke Sithole, marked at exhibit “E”.
vi.A
key, sketch plan and photo album marked at exhibit “G”.
vii.A
collection of forensic reference blood sample of the accused, taken
on the 19
th
of
October 2012 by a nurse called D.M
Segotso, marked as exhibit “H”
[10]
Although the Defence Counsel did not admit exhibit “F”
which is a DNA report, Counsel admitted, at the inception
of the
trial, on behalf of the accused, that the chain regarding
all
the DNA specimens sent to the laboratory, were all correctly sealed
and analysed.
THE
EVIDENCE
[11]
The State called ten (10) witnesses. These witnesses were M P M (who
is the complainant on counts 1-4), S M (who is the person
to whom the
first report was made in respect to counts 1-4), Warrant officer
Phokela Mogashoa, Alpheos Mashile, Jack Ngobeni, Constable
Mulutanyi
Gededzha, Segeant Letsie Philemon Motapo (the investigating officer),
Dr Jandisa Mlandu, B R, (the complainant on counts
5-7), and
Constable Tuso Clifford Molefe (the arresting officer).
[12]
This court will summarise the evidence chronologically with reference
to the counts and not in order of the appearance of the
many
witnesses that testified.
Counts
1 – 4
[13]
The witness M P M testified that one evening during February 2012,
she was walking home from her friend called “M”.
The time
was 21h00. A man called to her. He then placed his right arm on her
neck and covered her left face with his left arm.
She was forced into
the bushes and taken to a dumping site. This man, whom she could not
identify, then undressed her night dress
and used it to blindfold
her. She was then told to bend forwards. He then placed a condom on
his penis and inserted his penis into
her vagina and had sexual
intercourse with her without her consent. He ejaculated, took out his
penis, placed another condom on
it and inserted his penis into her
vagina for a second time and had sexual intercourse with her. He
ejaculated for a second time,
and took off the condom. He inserted
his penis into her vagina for a third time and had sexual intercourse
with her. He ejaculated
for a third time and then asked her if she
was going to lay charges against him and she said “no”.
He also threatened
to stab her with a knife if she screamed.
She then managed to leave and went to her friend called S. She told
her friend
that she had been raped. S accompanied her to the street
where she was living. She then went to the police station and made a
statement.
She was then taken to Olivedale hospital where a doctor
took a vaginal swab.
[14]
This complainant is corroborated by the medical report, namely,
exhibit “B”, where the doctor concluded that the
examination showed vaginal penetration. The perineum also showed
traces of soil and dirt with dry blood. Although the complainant
stated she was not penetrated in her anus, the doctor found dirt and
soil and some superficial bruising on the skin surrounding
the
orifice of the anus.
[15]
This witness impressed this court. She stated she could not identify
the perpetrator and never attempted to falsely incriminate
him in
court by fabricating evidence that she possibly could identify him.
[16]
S M, testified that on the 10
th
February 2012, the complainant, namely M P M, came to her house and
informed her that a man had approached her, grabbed her and
then took
her to a dumping site next to a soccer field, and that he then raped
her. The complainant was wearing a nightdress and
her clothing was
soiled with mud. She then accompanied this complainant to a certain
lady to find some clothing for the complainant.
[17]
This witness impressed the court.
Counts
5 – 7
[18]
Prior to calling the witness B R, the State brought an
ex
parte
application in terms of
section
170A
of the
Criminal Procedure Act, to
allow the complainant to
testify in a closed circuit television room with the assistance of an
intermediary. This court was satisfied
that the witness would be
exposed to undue mental stress and suffering and accordingly granted
this application. Ms Mihloti Eunice
Muhlari who was suitably
qualified and had the relevant experience, was appointed by this
court to assist as an intermediary. Ms
Muhlari was unavailable on the
second day of this complainant’s evidence and the court
appointed Ntombi Claudia Zwane to
act as an intermediary. She too was
also suitably qualified to assist as an intermediary.
[19]
B R testified that on the 12
th
of February 2013 she arrived from school and went to visit her cousin
called A in Z. After departing from her cousin at 18h00,
she was
walking alone when she came across a friend by the name of D. He
accompanied her half way down a shortcut through the veld,
whereupon
he turned back and went back to his house. An unknown person then
appeared in front of her. As she passed him, he tripped
her and she
fell to the ground. She screamed and this man kicked her and closed
her mouth. This man was dark in complexion and
he was wearing a
tracksuit top which had a head piece attached to it.
[20]
He was speaking to her in Zulu, but she could tell that he was not
fluent in Zulu. He then made her stand up and he blindfolded
her with
a cloth. He then dragged her to a spot with water and ordered her to
lie on the ground. She refused to undress and this
man stabbed her
with a knife on her arm. She undressed her trouser and panties and
fell to the ground. This man took off his clothes
and lay on top of
her and inserted his penis into her vagina and had sexual intercourse
with her without her consent. It was painful
in her vagina. She was
unsure if he ejaculated.
[21]
He got off her, answered a call on his cell phone and returned to
her. He asked her what her name was and then asked her what
she would
say if someone asked her how she had sustained the injuries. She
responded by saying that she would say the injuries
were caused by
some boys. He threatened her that if she should report this matter he
would kill her family as they are known to
him. He then took out his
penis for a second time and inserted it into her vagina and had
sexual intercourse with her. She was
unsure if he ejaculated. He then
instructed her to dress, hugged her and they walked together up to
the cross-road. He then took
off her blindfold and pushed her in the
opposite direction to himself. He then ran away.
[22]
She walked to the houses in C C and passed out on a certain verandah.
People found her there and contacted her sister, who
in turn called
her brothers. As her family arrived, so too did the ambulance arrive.
She was then taken to the Johannesburg hospital.
Swabs were taken
from her vagina and she was given stitches for her open wounds. She
was in hospital for three days. On her discharge
she was referred to
Roodepoort for counselling. She stated that this incident affected
her negatively as she felt the people at
her school knew what had
happened to her.
[23]
This witness impressed this court. She never tried to falsely
incriminate the accused by fabricating that he was the perpetrator.
[24]
The evidence of this complainant is corroborated by Doctor Jandisa
Mlandu who is employed at the Rahima Moosa Mother and Child
hospital.
She testified that on the 12
th
of February 2013, she examined B R. She noted that this child’s
clothing was full of grass and she had a stab wound on her
left
forearm, a laceration on her right hand and bruises on her back. The
medical report compiled by this doctor also showed that
the
complainant had a torn hymen with abrasions on the posterior
fourchette. The fossa navicularis also showed signs of bruising
and
small lacerations. This witness was unclear as to whether the injury
to the child’s forearm was fatal or not.
Counts
8 to 9
[25]
Jack Ngobeni testified that the deceased in respect to counts eight
(8) and nine (9), was his girlfriend. During 2013 they
were staying
together. On the morning of the 12
th
of March 2013, she woke up at twenty to four in the morning, had a
bath and then prepared the children for school. She left the
house at
four in the morning. Usually, a taxi would fetch her from the house,
but on this morning, no taxi was available. He went
back to sleep and
woke up just before seven in the morning and took the child to a
certain nanny. He returned home at half past
seven that morning.
[26]
He received a call from the deceased’s employer, who informed
him that she had not yet arrived at work. Whilst standing
there, he
saw a whole lot of people congregating at the side of the soccer
field. The police were also there. As he approached,
he informed the
police the deceased was missing. The police gave him a description of
the deceased person who had been found. He
then accompanied the
police to a spot, where he identified the deceased. He also
identified the shoes which were found at
the scene as belonging to
the deceased. He knew the accused in court as he was residing in
Honeydew in 2013. The accused lived
the third street away from where
he lived.
[27]
A M testified that he lived in Z, H. On the 12
th
of March 2013, he left his home around four thirty in the morning.
Whilst on his way, he passed a place called Mthonjeni, where
some
sewerage pipes lay, which needed to be installed. He heard the sound
of someone walking in the grass. He saw a man coming
from the
direction where the sewerage pipes were, however it was too dark and
he was unable to identify this person. This witness
continued to walk
where he was headed and returned around seven thirty that morning. At
that stage, he noticed a lot of people
congregating around the body
of a female deceased person. He presumed that the person he had seen
earlier that morning probably
was responsible for killing this
person.
[28]
Constable Mulutanyi Gededzha testified that he is employed at the
Criminal Record Centre in Krugersdorp. He is a crime scene
investigator and was responsible for compiling and collecting
exhibits from the scene in respect to counts eight (8) and nine (9).
He also took photos which are incorporated in exhibit “G”.
[29]
Sergeant Letsie Philemon Molapo testified that he is the
investigating officer of docket CAS number 495/3/2013 which refers
to
counts eight (8) and nine (9). He requested that a swab be taken from
the deceased’s genital area and that it be sent
to the forensic
laboratory. Upon analyses of the swab, the laboratory informed him
that they already had a profile of DNA that
matched the one found on
the deceased and that it belonged to a person with the name of
Mbasigidi RR, with identity number 8. This
is the name and identity
number of the accused before this court. The investigating officer
testified that prior to obtaining this
information he had no
knowledge of this accused. Further investigation revealed that the
accused had been arrested previously on
a criminal charge on Honeydew
CAS number 733/10/2012. Blood had been taken from him on that case
and had been sent to the Forensic
laboratory for analyses. The seal
number according to the duplicate docket on CAS 733/10/2012 was
11D4AB4226EB. The accused in
the matter of CAS number 733/10/2012 was
never successfully prosecuted, as the complainant withdrew that
matter. The profile however
remained on the Forensic laboratory
system.
[30]
The investigating officer testified that he was informed that the
profile of the accused also matched the DNA found on the
swabs of the
complainants on Honeydew CAS number 452/02/2012 (which refers to
counts 1-4) and Honeydew CAS number 555/02/2013 (which
refers to
counts 5-7). The services of an informer living in Zandspruit was
used to trace the accused. After he was found, he was
arrested on CAS
number 495/03/13 (which refers to counts 8 and 9), and his blood was
once again taken and was sent to the forensic
laboratory for
analyses. The seal number of this specimen is 11D4AA5106EB.
[31]
The accused was arrested on the 12
th
of July 2014. At that
stage the Forensic laboratory was already in possession of the
results of the swabs on CAS 452/02/2012, CAS
733/10/12 and CAS
555/02/2013.
[32]
The investigating officer stated that all three rape counts were
committed in Zandspruit. Counts 1-4 and counts 5-7 were all
committed
near a dumping site and a soccer field. He stated that the place
where the deceased on count 8 and 9 was raped and killed,
was in the
same area as the two previous mentioned incidents. He testified that
because the DNA of the accused was found in the
vagina of the
deceased on count 8 and 9, that the accused must have had sexual
intercourse with the deceased.
[33]
Constable Tuso Clifford Molefe testified that he was employed at the
Gauteng Provincial Head Office. He was working all over
Gauteng with
DNA linkages. He had in his possession a docket with case number
733/10/12, where the nickname of the suspect referred
to on that
docket was “Super”. Whilst still investigating, he
received a DNA link, linking case 733/10/12 to
a case of murder with
Honeydew docket CAS number 495/3/2013 and the initials on the
reference sample reflected “Mbasigidi
RR”. He did not
know who this accused was, so he asked the ground intelligence to
find a person by the name of “Super”
living in the
Honeydew area.
[34]
The information was gathered and he went to a certain plot on the
10
th
of July 2014, in Honeydew, where he found an African male. He
introduced himself and requested this man to tell him his name and
to
give him his identity number. This witness also had in his possession
the docket with CAS number 733/10/12, where the accused’s
name
reflected on that docket was Ronald Mbasigidi and the nickname was
“Super”. He asked this man what his name
was and
the name replied he was called “Super”. After satisfying
himself that this was indeed the person referred to
in docket
733/10/12, he arrested the accused before the court and explained his
Constitutional rights. The accused also agreed
that his surname was
Mbasigidi and that his initials were R.R. The accused informed him
that he had been out of the province.
DNA evidence
[35]
Warrant officer Phokela Mogashoa testified that he was attached to
the Biology Section of the Forensic Science Laboratory as
a Forensic
Analyst and a reporting officer. Although he has been attached to the
Biology Section of the Forensic Science Laboratory
since the 8
th
of March 2012, he had eleven years experience in the biological and
molecular services.
[36]
He stated that the investigating officer in this case had requested
him to check if there was a common donor from all the exhibits
received, as the investigating officer suspected a serial rapist was
possibly targeting women in the same area.
[37] He received the
following case files, marked as follows:
i.
Honeydew CAS 452/02/12 LAB 58307/12
on 2014-07-14
ii.
Honeydew CAS 495/03/13 LAB 86449/13 on
2014-07-14
iii.Honeydew
CAS 733/10/12 LAB 333160/12 on 2014-07-14
iv.Honeydew
CAS 555/02/13 LAB 39216/13 on 2014-07-29
[38]
He used nine (9) areas to compare the DNA. The nine (9) areas were
given scientific names which were referred to as “D3S1358”,
“vWA”, “FGA”, “D8S1179”,
“D21S11”, “D18S51”, “D5S818”,
“D13S317”, and “D7S820”. Each region has two
DNA pieces of fragment sizes. One region is from the mother
and the
other region is from the father. The combination of all these short
pieces of DNA, including the gender marker, constituted
a unique DNA
profile of an individual.
[39]
The exhibit material of three (3) complainants was analysed and
compared to the reference sample of the accused and the results
were
tabulated and included in table 1 of exhibit “F”.
[40]
The DNA result obtained from the following exhibits mentioned below,
matched the DNA result of the reference sample of the
accused, which
was marked as (11D4AB4226EB) which was obtained in CAS number
733/10/12. No vaginal swab was present in CAS
733/10/12, as
apparently the swabs taken from the rape victim in that matter were
too bloody. The exhibits which were compared
to the reference sample
of the accused on CAS 733/10/12 were;
1.Internal
Cervical swab (PAD000122489V) (11D1AA0309XX “MP MALEKANE”))
[Honeydew CAS 452/02/12]
2.Vaginal
Vault swab (PA30002363) (09D1AE4732XX) [Honeydew CAS 495/03/13 ]
3.Internal
Cervical swab 10D1AA5746 (10D1AA5746XX) [Honeydew CAS 555/02/13]
“
RAMAKGAMPANE
BONGINKOSI”.
[41]
This witness proceeded to explain the first line of table 1 on page 4
of exhibit “F”.
He
stated that the four (4) exhibits constituted the unique profile of
the DNA obtained
from all four (4)
specimens. The gender marker X:Y refers to the male gender, whereas
the X:X refers to the female gender. The reference
sample taken to the laboratory was
XX,
therefore it referred to the male gender.
[42]
It is clear to this court when looking at the nine (9) regions which
constitutes the short
pieces of DNA
obtained in each region that they are the same in each of the four
(4)
dockets. The first region, namely
D3S1358 was 15:15. The second region, namely
vWA
was 14:17. The third region, namely FGA was 18:2:24. The fourth
region, namely,
D8S1179
was 13:14. The fifth region, namely D21S11 was 30:31.2. The sixth
region, namely, D18S51 was 16:16. The seventh region,
namely, D5S818
was 12:15. The eighth region, namely D13S317 was 11:13 and the ninth
region, namely
S7S820
was 10:12.
[43]
It is clear to this court that by comparing the reference sample
(11D4AB4226EB),
marked “MBASIGIDI RR”
in the third line in table 1, on page four (4) of exhibit “F”
to the first, second
and fourth lines in table one, that the
reference sample matched all the
regions.
The evidence of this witness who compared the four exhibits, allows
this
Court to accept that it was the same
person’s DNA who was found in the three dockets
marked
Honeydew CAS 452/02/12, Honeydew 495/03/13 and Honeydew 555/02/13.
[44]
This witness stated that the statistical probability that this
profile would be shared by
two people would
be 1 in 4.2 trillion people. Accordingly, it was very unlikely that
this
DNA belonged to another person.
[45]
This witness was recalled by the State in terms of
section 166
of the
Criminal
Procedure Act for
two purposes,
firstly to explain that there was a typographical error
on
exhibit “F” and that the docket he had mentioned on the
table at paragraph 4 was
CAS 495/03/13 and
not 495/03/12. Secondly, he had also compiled an additional table
which was incorporated in exhibit “I”,
and the significance of this second table was that
he
had included and compared the first reference sample of the accused
obtained from the accused on CAS 733/10/12, to the second
confirmatory reference sample which was obtained from the accused on
CAS 495/03/13. He found them to be exactly the same.
[46]
This witness stated that when he had presented his initial report
marked as exhibit “F”,
the
initial reference sample of the accused, obtained on CAS 733/10/12,
had not yet
been compared to the
confirmatory reference sample obtained on CAS 495/03/13. The
second report is basically the same as the first
report, the only addition being, that it
includes
the results obtained from the confirmatory sample. He stated that by
looking at
the table on exhibit “I”
the confirmatory sample gives the same DNA profile as all the
other exhibits.
[47]
It is clear to this court that if one looks at paragraph 4 of exhibit
“I”, that the
first region,
namely D3S1358 is 15:15 in both reference samples, the second region,
namely vWA is 14:17 in both samples. The third
region, namely FGA is 18:2:24 in both
samples.
The fourth region, namely, D8S1179 is 13:14 in both samples. The
fifth
region, namely D21S11 is 30:31.2 in
both samples. The sixth region, namely, D18S51
is
16:16 in both samples. The seventh region, namely, D5S818 is 12:15 in
both samples. The eighth region, namely D13S317 is 11:13
in both
samples as is the ninth
region, namely
S7S820
in both samples reflected as 10:12.
[48]
This witness impressed this court.
[49]
The State closed their case.
[50]
The accused testified and denied all knowledge of being involved in
any rape,
attempted murder or murder. His
defence is a bare denial. He denied ever having had
sexual
intercourse with any of the two complainants or the deceased. In fact
he
testified he does not know either of the
two complainants or the deceased.
[51]
In respect to counts one (1) to four (4), he stated that during this
period in 2012,
he was not in the Gauteng
Province. He was working in Liphalele, which is in the
province of Limpopo. He would leave Gauteng
on a Sunday or Monday and returned
the next
Sunday or Saturday. It would take four hours to travel from Liphalele
to his
place of residence in Gauteng. He
worked in Liphalele in 2011 and again from January
2012
until August or September 2012. He was installing air conditioners
for a private
company, called Fifty Two
Engineering and the owner of this company was John Perry.
Two
people would supervise them, namely, a site manager and a safety
officer.
[52]
During this period, he worked in the mine and would commence his day
at seven in the
morning
and would exit the mine at six in the evening.
[53]
The accused had an opportunity to call any of the three
above-mentioned people to corroborate his version that he was not in
Gauteng during February 2012, yet he elected not to.
[54]
He could not give details about his whereabouts on the 12
th
of February 2013, or the 12
th
of March 2013. Although he knew the area where the deceased on count
nine (9) was found, he stated that he did not recall ever
going to
that soccer field. He admitted that he lived six (6) streets away
from this area. He heard from his girlfriend that the
deceased on
count nine (9) had been found. He did not himself go to that soccer
field to see it for himself.
[55]
During cross examination he merely denied his involvement and
questioned how it was
possible that his DNA
could have been found on the swabs of the two complainants
and
the deceased. He maintained his version that he never had sexual
intercourse with
any of the two
complainants or the deceased.
[56]
The accused never disputed that he was arrested previously on a
matter with CAS
number 733/10/12. Due to
the fact that he remained silent in this regard, this Court
accepts he was indeed arrested on that case and
that his blood was taken on that
matter and
kept in the forensic laboratories. The accused did admit that his
blood was
taken after his arrest on CAS
number 495/03/13, but he denied he told Constable Tuso
that
his nickname was “Super”. He agreed he is R.R. Mbasigidi.
[57]
In the absence of the accused challenging Constable Molefe during
cross-examination, that he did not say his nickname was “Super”
at the time he was arrested, this Court accepts he did tell Constable
Molefe that his nickname was “Super”.
EVALUATION
[58]
The proper approach in a criminal case is to consider the totality of
the evidence, that
is, to examine the
nature of the State case, the nature of the defence case, the
probabilities emerging from the case as a whole,
the credibility of all the witnesses in
the
case, including the defence witnesses, and then to ask one self, at
the end of all
this, whether the guilt of
the accused has been established beyond a reasonable doubt.
[59]
The two (2) complainants, namely, M P M and B R are single witnesses.
The cautionary rule embodied in
section 208
of the
Criminal Procedure
Act, was
considered. This court is satisfied that both complainants
were credible and honest witnesses. They did not try to exaggerate
any
of their evidence. Both witnesses stuck to their versions and
this Court has found no material contradictions in their evidence.
[60]
The presence of similar fact evidence in this case, has become highly
relevant. The
evidence shows that the
perpetrator approached single women in Zandspruit, when it
was
dark. He would grab them and drag them into the veld. He would
blindfold the
victims and after having
raping them he would ask them if they would lay a charge
against him. He would either threaten, or actually
stab the victim.
[61]
Although there is no direct evidence as to whether the victim on
counts eight (8) and
nine (9) was
blindfolded, the fact remains that a scarf was found at the scene as
depicted at photo 19 of exhibit “G”.
This incident happened on the 12
th
of March 2013.
March is usually a warm
month and there is no need for someone to wear a scarf. The
fact that a scarf was found at the scene, allows
this court to infer that possibly the
perpetrator
had in fact also covered the eyes of the deceased with this scarf.
[62]
The learned authors D.T Zeffertt and A.P. Paizes in the
South
African Law of Evidence
,
[1]
state at page 294;
“
In
cases in which identity of the criminal is a substantial issue,
evidence that the
accused
had a peculiar or aberrant propensity to commit the offence in
question may,
in
the circumstance of the case, be so highly relevant to the question
of his identity as
to
be admissible”;
and
further at page 297 that;
“
The
relevance of the similar-fact evidence will depend upon the factors
such as the
strength of the other direct or
circumstantial evidence which already points to the
accused,
the degree of similarity in the
modus
operandi
, and the extent to which the
accused is already identified with the earlier
offences.”
[63]
In the case of
S v Blom
1939 AD 188
, the learned Watermeyer JA stated that there are
two cardinal rules of logic;
“
(1)The
inference sought to be drawn must be consistent with all the proved
facts. If
not, then the inference cannot be
drawn.
(2)The
proved facts should be such that they exclude every other reasonable
inference from them save the one sought to be drawn.
If they do not
exclude other
reasonable inferences, then
there must be a doubt whether the inference sought to
be
drawn is correct.”
[64]
Counsel for the Defence argued that the DNA evidence is not to be
accepted as it is
filled with doubts and
contradictions, and that these contradictions had to be resolved,
by the State recalling Warrant officer Mogashoa.
This Court does not agree. The
reason why
the State re-called warrant officer Mogashoa was to lead evidence
pertaining to the results of the blood which were
taken from the accused after he was
arrested
on the rape and murder count comprising counts eight (8) and nine
(9), and
also to correct the CAS number of
495/03/12 to 495/03/13.
[65]
There was no evidence presented by the accused to counter the
evidence of this DNA
expert and accordingly
his evidence is accepted by this court as correct.
[66]
The similar
modus operandi
,
together with the fact that the DNA of the accused was
found
on the genital swabs taken from the two complainants and the
deceased, allows
this court to infer as the
only reasonable conclusion that it is the accused who raped all
three victims.
[67]
The accused’s version that he did not rape any of these victims
is rejected as false and
not reasonably
possibly true. This Court finds that the DNA found on the swabs of
the
two complainants and the deceased
indeed belongs to the accused.
[68]
In respect to count nine (9), there is no direct evidence showing
that the accused stabbed and killed the deceased.
[69]
J N testified the deceased left the house at four in the morning. A M
testified that he left his house at half past four in
the morning and
that he saw a man walking in the area where the sewerage pipes are.
This is the area where Alpheos saw the deceased’s
body lying,
when he returned at seven thirty that morning.
[70]
It is common cause that the accused lived in Honeydew and resided six
(6) streets
away from where the body of the
deceased was found. The DNA of the accused was
found
on the vaginal swab of the deceased. Due to the fact that the DNA
circumstantial
evidence, incriminates the
accused on the rape counts of the two complainants and the
deceased, and the degree of similarity in the
modus operandi
of all three acts of rape,
coupled with the
fact that they all occurred in Zandspruit, leads this court to infer
that
we are dealing with the same person
who also killed the deceased on count nine
(9).
[71]
A M saw a man emerging from the area where the deceased was killed at
four thirty in the morning. This area is remote, and
few people are
walking there at that
time of the morning.
A heard no screaming when he saw this man, which
suggests
the deceased was already dead or unable to scream due to the injuries
sustained. This body was discovered shortly after
she was raped. This Court finds
there is
sufficient similar fact evidence arising from the other exhibitions
of violence in
respect to the complainant
on count five (5) to seven (7), that the accused was a
violent person and that because he had stabbed the
complainant on counts five (5) to
seven
(7), that he most probably, also stabbed this deceased on count eight
(8) and
nine
(9) and killed her.
[72]
This Court finds the inability of the accused to remember with
clarity what he was doing
in
2012, and no recollection of what he was doing on the 12th of
February 2013 and
the 10th of March 2013,
as not reasonably possibly true.
[73]
Considering the circumstantial evidence and similar fact evidence,
this Court finds that the State has proven the identity
of the person
who killed the deceased on count nine (9) as being that of the
accused.
FINDINGS
Counts
1 – 4
[74]
In respect to count one (1), the court finds that the State has
proven beyond reasonable doubt, that on the 10
th
of February 2012, at Zandspruit, the accused deprived the
complainant, M P M of her freedom and movement. Accordingly, he is
found
guilty of kidnapping on count one (1). In respect to count two
(2), three (3) and four (4), this Court is satisfied that the accused
had the intention in the form of
dolus
directus
to rape the complainant and
that he raped her without her consent on three separate occasions.
There were no grounds of justification
for his actions and he is
found guilty of rape on counts two (2), three (3) and four (4).
Counts
5 - 7
[75]
In respect to count five (5), this Court finds that the State has
proved beyond reasonable doubt that the complainant B R was
assaulted
and stabbed on her arm on the 12
th
of February 2013, at Zandspruit. It is clear that the accused had the
intention in the form of
dolus directus
to stab her. Doctor Jandisa Mlandu did not explain clearly that this
injury was life threatening. Accordingly, in terms of
section 258
of
the
Criminal Procedure Act, the
accused is found guilty of assault
with intention to do grievous bodily harm in respect to count five
(5).
[76]
In respect to count six (6) and seven (7), this court is satisfied
that the State has proved beyond reasonable doubt that the
accused
had the intention in the form of
dolus directus
to rape the
complainant and that he did so on two occasions. There are no grounds
of justification for his actions and accordingly
the accused is found
guilty of rape on counts six (6) and seven (7).
Counts
8 – 9
[77]
In respect to count eight (8), this court is satisfied that the State
has proved beyond reasonable doubt that the accused had
the intention
in the form of
dolus directus
to rape the complainant.
There are no
grounds of justification for his actions and accordingly the accused
is found guilty of rape on count eight (8).
[78]
In respect to count nine (9) this court is satisfied that the State
has proven the identity of the perpetrator who killed the
deceased as
being the accused. This court finds that due to the many stab wounds
inflicted on the deceased’s body, that the
accused had the
intention in the form of
dolus directus
to kill the deceased. There are no grounds of justification and
accordingly the accused is found guilty of murder on count nine
(9).
D
DOSIO
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
On
behalf of the State Adv P. Marasela
Cnr
Kruis and Pritchard Street
Johannesburg
On
behalf of the Accused Adv Netshifhefhe
Date
Heard: 30 June 2016
Handed
down Judgment: 5 July 2016
[1]
Second
edition, LexisNexis, Durban