S v Mkansi (SS77/2016) [2017] ZAGPJHC 68 (7 March 2017)

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[2017] ZAGPJHC 68
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S v Mkansi (SS77/2016) [2017] ZAGPJHC 68 (7 March 2017)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO:
SS77/2016
DPP
REF NO:
10/2/11/1-69
of 20-16
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
THE STATE
an
MKANSI:
JOSIAS
XANISEKA
Accused
JUDGMENT
OPPERMAN J
INTRODUCTION
[1]
Mr
Mkansi has been arraigned on sixteen (16) counts of rape, two (2)
counts of compelled rape and eleven (11) counts of robbery
with
aggravating circumstances. He pleaded not guilty and tendered no plea
explanation as envisaged in terms of Section 115 of
Act 51 of 1977
(“
CPA
”).
The minimum sentences applicable in terms of Section 51(1) and 51(2)
of Act 105 of 1997 (“
The
Criminal Law Amendment Act
”)
were explained.
[2]
An
application was brought in terms of section 153(3)(a) of the CPA,
which was not opposed. Such application was granted and it
was
ordered that all persons whose presence was not necessary, would not
be present at the proceedings. The judgment in this matter
shall not
be delivered in open court as this court is of the opinion that the
identity of the complainants would be revealed thereby.
No person
shall publish in any manner whatever any information which might
reveal the identity of any complainant in these proceedings.

Attention is drawn to the provisions of section 154(5) of the CPA
which makes the publication of any information in contravention
of
orders granted in terms of sections 153(3) and 154(2), an offence.
The aforesaid order shall not prevent the publication of
information
relating to the name and personal particulars of the accused, the
nature of the charges against him (without disclosure
of the identity
of any individual mentioned in such charges), the plea and the
verdict.
[3]
In
respect of 16 (sixteen) counts (25, 35, 38,41, 43, 45, 50, 52, 54,
56, 59, 61, 62, 64, 66 and 69) the State alleges that Mr Mkansi

contravened the provisions of Section 3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 32 of 2007 (“
Sexual
Offences Act
”).
The State alleges that these sixteen (16) offences all fall within
the ambit of Section 51(1) of the Criminal Law Amendment
Act.
[4]
In
respect of two (2) counts (47 and 48), the State alleges that Mr
Mkansi contravened the provisions of Section 4 of the Sexual
Offences
Act. The State alleges that these two (2) offences fall within the
ambit of Section 51(1) of the Criminal Law Amendment
Act.
[5]
In
respect of eleven (11) counts (27, 36, 39, 44, 49, 51, 53, 55, 60, 68
and 70) the State alleges that Mr Mkansi committed robbery
with
aggravating circumstances and that these eleven (11) counts fall
within the ambit of Section 51(2) of the Criminal Law Amendment
Act.
CHARGES AGAINST MR MKANSI
Counts 25 and 27
[6]
The
State alleges that on or about the 7
th
September 2014 and at or near East Bank Park, Alexandra in the
district of Johannesburg North, Mr Mkansi did unlawfully and
intentionally
commit an act of sexual penetration with M. A. M. (24
years old at the time) without her consent. The State further alleges
that
on such date, Mr Mkansi did unlawfully and intentionally assault
M. A. M. and/or M. L. and did then and there and with force and

violence take from them a cellular phone and two hundred rand (R200)
in cash being their property, with aggravating circumstances
as
described in Section 1 of the CPA being present.
Counts 35 and 36
[7]
The
State alleges that on or about the 5
th
October 2014 and at or near Engen Garage in Tsutsumani, Alexandra in
the district of Johannesburg North, Mr Mkansi did unlawfully
and
intentionally commit an act of sexual penetration with M. M. (36
years old at the time) without her consent. The State further
alleges
that on such date, Mr Mkansi did unlawfully and intentionally assault
M. M. and did then and there and with force and violence
take from
her a handbag, seven hundred rand (R700) in cash and a Nokia cellular
phone being her property, with aggravating circumstances
as described
in Section 1 of the CPA being present.
Counts 38 and 39
[8]
The
State alleges that on or about the 21
st
December 2014 and at or near Rooseveld Bridge, Alexandra in the
district of Johannesburg North, Mr Mkansi did unlawfully and
intentionally
commit an act of sexual penetration with T. P. (23
years old at the time) without her consent. The State further alleges
that on
such date, Mr Mkansi did unlawfully and intentionally assault
T. P. and/or D. S. and did then and there and with force and violence

take from them a Nokia cellular phone and a Samsung cellular phone
being their property, with aggravating circumstances as described
in
Section 1 of the CPA being present.
Counts 41, 43 and 44
[9]
The
State alleges that on or about the 10
th
January 2015 and at or near East Bank Cemetery, Alexandra in the
district of Johannesburg North, Mr Mkansi did unlawfully and
intentionally commit an act of sexual penetration with S. M. (15
years old at the time) without her consent and R. N. (19 years
old at
the time) without her consent. The State further alleges that on such
date, Mr Mkansi did unlawfully and intentionally assault
S. M. and/or
R. N. and/or O. M. and did then and there and with force and violence
take from them three (3) cellular phones being
their property, with
aggravating circumstances as described in Section 1 of the CPA being
present.
Counts 45, 47, 48 and 49
[10]
The
State alleges that on or about the 8
th
January 2014 and at or near East Bank Park, Alexandra in the district
of Johannesburg North, Mr Mkansi did unlawfully and intentionally

commit an act of sexual penetration with D. M. (38 years old at the
time) without her consent. The State further alleges that on
the 8
th
January 2014 and at or near East Bank Park, Alexandra, Mr Mkanzi did
unlawfully and intentionally commit an act of compelled rape
by
forcing P. M. to commit an two acts of sexual penetration with D. M.
without her consent, (counts 47 and 48). The State further
alleges
that on such date, Mr Mkansi did unlawfully and intentionally and
with force and violence take from D. M. and/or P. M.
fifty rand (R50)
in cash being their property, with aggravating circumstances as
described in Section 1 of the CPA being present.
Counts 50 and 51
[11]
The
State alleges that on or about the 8
th
August 2014 and at or near West Bank Cemetery, Alexandra in the
district of Johannesburg North, Mr Mkansi did unlawfully and
intentionally
commit an act of sexual penetration with Z. T. (16
years old at the time) without her consent. The State further alleges
that on
such date, Mr Mkansi did unlawfully and intentionally assault
Z. T. and/or S. M. and did then and there and with force and violence

take from them two (2) Nokia cellular phones, two (2) pairs of shoes
and a sports hat being their property, with aggravating circumstances

as described in Section 1 of the CPA being present.
Counts 52 and 53
[12]
The
State alleges that on or about the 17
th
August 2014 and at or near Bhekilanga School, Alexandra in the
district of Johannesburg North, Mr Mkansi did unlawfully and
intentionally
commit an act of sexual penetration with M. M.(b) (16
years old at the time) without her consent. The State further alleges
that
on such date, Mr Mkansi did unlawfully and intentionally assault
M. M.(b) and did then and there and with force and violence take
from
her a Nokia cellular phone being her property, with aggravating
circumstances as described in Section 1 of the CPA being present.
Counts 54 and 55
[13]
The
State alleges that on or about the 5
th
November 2014 and at or near Far East Bank Alexandra Cemetery,
Alexandra in the district of Johannesburg North, Mr Mkansi did
unlawfully and intentionally commit an act of sexual penetration with
R. M.  (19 years old at the time) without her consent.
The State
further alleges that on such date, Mr Mkansi did unlawfully and
intentionally assault R. M. and did then and there and
with force and
violence take from her a cellular phone being her property, with
aggravating circumstances as described in Section
1 of the CPA being
present.
Count 56
[14]
The
State alleges that on or about the 13
th
November 2014 and at or near Jukskei Park, Alexandra in the district
of Johannesburg North, Mr Mkansi did unlawfully and intentionally

commit an act of sexual penetration with P. R. (14 years old at the
time) without her consent as described in Section 1 of the
CPA being
present.
Counts 59 and 60
[15]
The
State alleges that on or about the 27
th
November 2014 and at or near Engen Garage Tsutsumani, Alexandra in
the district of Johannesburg North, Mr Mkansi did unlawfully
and
intentionally commit an act of sexual penetration with L. I. M. (23
years old at the time) without her consent. The State further
alleges
that on such date, Mr Mkansi did unlawfully and intentionally assault
L. I. M. and/or M. J. R. and did then and there and
with force and
violence take from them cellular phones and four hundred and forty
rand (R440) in cash being their property, with
aggravating
circumstances as described in Section 1 of the CPA being present.
Count 61
[16]
The
State alleges that on or about the 26
th
January 2015 and at or near East Bank Park, Alexandra in the district
of Johannesburg North, Mr Mkansi did unlawfully and intentionally

commit an act of sexual penetration with D. P. M. (14 years old at
the time) without her consent.
Counts 62, 64, 66, and 68
[17]
The
State alleges that on or about the 5
th
January 2015 and at or near East Bank Park, Alexandra in the district
of Johannesburg North, Mr Mkansi did unlawfully and intentionally

commit an act of sexual penetration with Y. S. (16 years old at the
time) without her consent.
[18]
The
State alleges that on or about the 5
th
January 2015 and at or near East Bank Park, Alexandra in the district
of Johannesburg North, Mr Mkansi did unlawfully and intentionally

commit an act of sexual penetration with L. M. (16 years old at the
time) without her consent.
[19]
The
State alleges that on or about the 5
th
January 2015 and at or near East Bank Park, Alexandra in the district
of Johannesburg North, Mr Mkansi did unlawfully and intentionally

commit an act of sexual penetration with V. M. (26 years old at the
time) without her consent.
[20]
The
State further alleges that on such date, Mr Mkansi did unlawfully and
intentionally assault Y. S. and/or L. M. and/or V. M.
and did then
and there and with force and violence take from them (4) four
cellular phones, a pair of sneakers and one hundred
and fifty rand
(R150) in cash being their property, with aggravating circumstances
as described in Section 1 of the CPA being present.
Counts 69 and 70
[21]
The
State alleges that on or about the 13
th
May 2015 and at or near East Bank Park, Alexandra in the district of
Johannesburg North, Mr Mkansi did unlawfully and intentionally
commit
an act of sexual penetration with B. M. K. (22 years old at the time)
without her consent.
[22]
The
State further alleges that on such date, Mr Mkansi did unlawfully and
intentionally assault D. L. and did then and there and
with force and
violence take from him two (2) cellular phones being his property
with aggravating circumstances as described in
Section 1 of the CPA
being present.
FORMAL ADMISSIONS
[23]
During
the course of the trial formal admissions in terms of Section 220 of
the CPA, were made which admissions were received and
incorporated
into two separate documents marked exhibits “A” and “Q”.
Exhibit “A” recorded
that Mr Mkansi admitted the
correctness of the facts and findings contained in all the reports
compiled by the medical practitioners
who had performed medico-legal
examinations on the victims reflected in such exhibits as well as the
truth of the contents thereof.
The medical reports (hereinafter
referred to as a “
J88
”
or “
J88’s
”)
were received as evidence and marked exhibits “B” to “P”.
[24]
Exhibit
“Q” also contained admissions relating to the crime kits
(forensic specimens), which had been taken by the medical

practitioners, reflected in the J88’s and which specimens had
been delivered to the forensic science laboratory. The term
“crime
kit” was defined as “
specimens
taken by the medical practitioners who completed exhibits “B”
to “P” from the victims referred
to in exhibits “B”
to “P” with the seal numbers referred to in exhibit
numbers “B” to “P””
.
[25]
The
admissions thus comprised,
inter
alia
,
the medical examinations of the complainants referred to in the rape
charges (except the complainant in respect of count 43 as
none was
relied upon by the state in respect of her); the correctness of the
J88 forms completed pursuant thereto; the collection
of forensic
specimens taken from the complainants’ genitals; the sealing of
the samples in evidence-collection kits and the
despatch to and
receipt thereof at the Forensic Science Laboratory in Pretoria.
[26]
Some
of the victims did not testify but formal admissions were made in
respect of the rapes perpetrated upon them which admissions
have been
included in the summary of the evidence.
[27]
It
was admitted that on 8 January 2014 and at or near East Bank Park in
Alexandra, P. M. was compelled to commit an act of sexual
penetration
with D. M. on two occasions without his consent (Counts 47 and 48).
[28]
It
was admitted that on 27 November 2014 and at or near the Engen
Garage, Tsutsumani in Alexandra, M. J. R. was in the company of
L.
M., and was assaulted and robbed of a cellular phone and four hundred
and forty rand (R 440) in cash, aggravating circumstances
being
present, in that a firearm and/or dangerous weapon was wielded.
[29]
It
was admitted that on 13 May 2015 and at or near East Bank Park in
Alexandra, D. L., was assaulted and robbed of two cellular
phones,
aggravating circumstances being present, in that a firearm and/or
dangerous weapon was wielded.
[30]
In
respect of all the incidents where the victims did not testify, it
was admitted that the assailants had their faces covered with

balaclavas.
[31]
It
was further admitted that a Buccal sample was obtained from Mr Mkansi
on 8 June 2015 and that it was conveyed to the forensic
laboratory on
10 June 2015 where it was duly acknowledged.
[32]
It
was further admitted that a Buccal sample of Mr Sinja Robin Mabitsela
(“
Mr
Mabitsela
”)
was obtained on 28 July 2015. That it was conveyed to the forensic
laboratory and it was duly acknowledged.
[33]
Buccal
sample was defined as per Section 36A(1)(cB) of Act 51 of 1977 as
amended by the Criminal Law (Forensic Procedures) Amendment
Act 37 of
2013, as being a sample of cellular materials taken from the inside
of a person’s mouth.
ISSUES IN DISPUTE
[34]
The
sole issue for determination by this court is the identity of the
perpetrator of the crimes that Mr Mkansi is charged with.
The fact
that the crimes were committed has not been disputed and can be
accepted as common cause.
THE EVIDENCE
[35]
This
court will summarise the evidence chronologically with reference to
the date of the perpetration of the alleged offences.
8 January 2014 (Counts 45, 47 and
48)
[36]
D. M.
M. (“
Ms
M.
”)
testified that on the 8
th
January 2014, she and her boyfriend P. M. (“
Mr
M.
”)
were sitting on swings in East Bank Park, Alexandra when two men clad
in balaclavas approached them. Ms M. was grabbed
by the taller of the
two assailants. The taller man was in possession of a knife and the
shorter man, a gun. The assailants searched
Ms M. and Mr M.. Mr M.
was instructed to hand his phone to the short man. They found one
cellphone and some coins in Mr M.’s
jacket. They did not take
the phone as they said it was an old model. They took the money. The
short man was more talkative and
addressed the couple in the Sipedi
language. When the tall one spoke, he spoke in the Zulu language. The
couple were instructed
to walk to a cemetery. It was approximately
20h00. When they reached a tree in the cemetery, the short man
ordered Ms M. to undress.
He instructed her to put her dress on the
ground and to lie on top of the dress. The two assailants conferred.
The short man instructed
Mr M. to have sexual intercourse with Ms
M..  Mr M. complied with the instruction and was thereafter
instructed to lie on
the ground, face down and cover his head with
his arms. They then covered Ms M.’s face with an item (some
fabric). She managed
to pull the item from her face and saw the tall
man approaching her. He lay on top of her. He had sexual intercourse
with her.
Whilst the tall assailant was having sexual intercourse
with Ms M., his shorter friend was watching. After the tall assailant
had
finished, he approached the short man, got the firearm from him
and the short man then proceeded to have sexual intercourse with
Ms
M.. After he had finished raping Ms M., he instructed Mr M. to have
sexual intercourse with Ms M. again. Mr M. complied with
this
instruction. Ms M. was shocked and shaken but Mr M. tried comforting
her and told her to calm down as the two assailants were
still
watching them. They enquired from him whether he was “done”,
to which he responded that he was. They instructed
the couple to get
dressed and to leave.
[37]
They
found a taxi. Mr M. explained that Ms M. had just been raped and
requested that the taxi driver take them to his residence
to enable
him to get money to proceed to the police station. They went to the
police station, narrated the ordeal and opened a
case. Ms M. denied
having given consent to have sexual intercourse with either of the
assailants nor with Mr M.. She didn’t
know whether or not the
assailants had worn condoms when they had raped her as she couldn’t
see. They had covered her face.
She explained that she had attended
counselling. She was unable to identify her assailants.
[38]
Exhibit
“F” is the J88 relating to the medico-legal examination
performed on Ms M. conducted by Dr A Sharif. Her account
to him
accords substantially with the version testified to in court. It
records that she was examined by him at 01h25 on 9 January
2014 and
that he had taken a forensic specimen from her which had been sealed
with seal number 10D1AE6838. This specimen was handed
to J V Makolwa.
8 August 2014 (Counts 50 and 51)
[39]
Ms Z.
T. (“
Ms
T.
”)
testified that she was born on 16 May 1998. At the time of her ordeal
she was 16 years old. She explained that on 8 August
2014 at
approximately 17h30, she was walking with her boyfriend S. M. (“
Mr
M.
”)
in the park next to the cemetery in Alexandra. A man appeared behind
them and produced a firearm. He instructed them to
look down and to
follow him. When they reached the cemetery they were instructed to
sit down. He was communicating with some other
person on his phone.
Another assailant came who was wearing a balaclava. This person was
taller than the initial assailant. The
short man instructed them to
take off their shoes. The taller assailant separated Ms T. from Mr
M.. He took her aside, undressed
her and then had sexual intercourse
with her without a condom. She testified that whilst this was
happening, Mr M. was crying.
The short man hit Mr M. with the
firearm. They then told them to leave and not look back. They ran to
Mr M.’s place but he
instructed her to wait next to a bakery.
He ran to his brother who had a car. Mr M.’s father took her to
the police station
where she opened a case. She confided in Mr M.’s
father as to what had happened to her. From the police station she
was taken
to the medical clinic where a medical examination was
conducted. After the ordeal she received counselling.
[40]
Annexure
“G” being the J88 relating to Ms T., reflected that she
had been examined by Dr Makunga at 01h15 on the 9
th
August 2014. Her account to Dr Makunga accords substantially with the
version given in court. It appears from the J88 that prior
to this
date, Ms T. had not ever had consensual intercourse and was in fact a
virgin. Dr Makunga recorded the following injuries,
0.5 x 0.5
centimetre tear on posterior fouchette and fresh tears on the hymen.
He recorded the following “
these
suggest vaginal penetration with possibly a blunt object. Fresh tears
on hymen suggest that the act was quite recent, probably
within 48
hours. Debris noted on perineum suggests that the penetration
occurred outside, on the ground.
”
These findings support the evidence given by Ms T. during cross
examination when she was asked whether she had sustained
any physical
injuries. She had responded that she had. She said that she had cuts
just outside ‘
her
private parts and on both sides’
.
The J88 records that she was 159cm tall, weighed 51 kilograms and her
general body build was described as medium. Ms T., two and
half years
after the event, looked very young.
[41]
Mr M.
testified that he was born on 23 April 1997 and that he was 19 years
of age on 8 August 2014. He explained that he was with
Ms T. when a
man came from “
nowhere
”.
His hat had been pulled down over his face and he was wielding a gun.
He instructed the couple to walk into the cemetery
where the short
assailant called his friend. After the second assailant arrived, Mr
M. was ordered to lie on the ground. Prior
to the second assailant’s
arrival, the short man had told them that he had been watching them
from 15
th
John Bond Avenue. He was making small talk with them, asking them
where they lived and what Mr M.’s brother’s name
was,
when the tall man arrived. The tall man put his foot on Mr M.’s
neck and told him to “
eat
grass
”.
He took Mr M.’s head and said his head was “
nice
”.
The tall man then took Ms T. away. Mr M. heard her screaming and
crying and as he tried to move to come to her assistance,
the short
man struck him on the head with a firearm. After a while the tall man
and Ms T. returned and the couple were told to
undress. The tall man
was in a hurry so he took Mr M.’s shoes and hat off. They were
told to face away from their assailants
and not to look back. The
tall man wanted to shoot at them but the short man told him not to.
[42]
After
they were released they ran away. Ms T. fell and because of this
fall, Mr M. left her in a passage. He rushed home and called
his
father. His father arranged transport and they were taken to the
police station. Statements were made. He was asked what Ms
T.’s
condition was when she came back having been away with the tall man
for approximately 15 minutes. He responded that
it “
appeared
that she had felt the pain
”,
“
she
held my hand tightly and she was crying
”.
He explained that she was still carrying her boots and trying to pull
up her trousers. He says his shoes, trousers and
phone were taken
from him.
17 August 2014 (Counts 52 and 53)
[43]
M.
M.(b) (“
Ms
M.(b)
”)
explained that on 17 August 2014 she was 16 years old. She and her
friend L. were on their way home. When they reached
Bhekilanga
School, Alexandra, they met up with 2 men who pointed firearms at
them. Ms M.(b) handed her phone to one of the men.
Her friend L.
tried to run away but fell. She was followed by one of the
assailants. Both of the assailants were wearing balaclavas.
She said
the one man was taller than the other. The short man followed L.. It
was approximately 19h30 when they walked with them
into the school
and when they reached a certain place the tall one said to Ms M.(b)
that he wanted to have sexual intercourse with
her. He proceeded to
undress her and to touch her private parts. She appealed to him not
to do what he wanted to do. He forced
her to lie down, undressed
himself and proceeded to have sexual intercourse with her without the
use of a condom. She explained
that she had not given her consent.
[44]
After
the ordeal they ran to the security officer at the school who
referred them to the police station. She told her friend L.
that she
had been raped and enquired from her whether she had been raped. She
responded that she had not. She explained that after
they had
reported the matter to the police station, she was taken to be
examined by a doctor. She also testified that she had not
gone for
counselling as she was afraid that she might be judged. She said that
after this incident she didn’t even trust
her brothers anymore.
Whenever she caught a taxi, she became afraid.
[45]
The
J88 completed on behalf of Ms M.(b) described the events
substantially along the same terms as the version advanced at court.

Dr Makunga recorded the following: “
It
is common that fully mature, fully sexual active females not suffer
injuries during unconsented sexual penetration. Absence of
gynae
injuries can therefore not be used to dispute history given by
client.
”
Forensic specimens were taken from Ms M.(b) and sealed with seal
number 10D1AE4875.
7 September 2014 (Counts 25 and 27)
[46]
A. M.
M. (“
Ms
M.
”)
explained that on the 7
th
September 2014 she was 24 years old. It was between 17h00 and 18h00
when they were walking past East Bank Park in Alexandra. As
they were
walking two men approached them from behind. One was pointing a
firearm at them and he instructed them not to scream
or do something
that was out of control. They instructed the couple to walk to the
side of the cemetery where they were told to
lift up their hands and
face a wall. They were searched. They took a cellphone and two
hundred rand (R200) in cash. Both assailants
were wearing balaclavas.
One man was tall and the other short. The tall man searched her
boyfriend, whereafter he was instructed
to lie down on the ground.
They took her boyfriend’s waist belt and cap. The tall man
instructed her to walk with him to
the other side of the wall. He
grabbed her by her throat and threw her down on the ground. He got on
top of her and held his firearm
behind her head.  He undressed
his trousers, moved her underwear to the side and proceeded to have
sexual intercourse with
her. He was not using a condom. She appealed
to him to leave her but he reprimanded her and said if she dare
scream, he would shoot
her. The short man joined them. He said to her
that he would like her to have oral sex with him. She refused. He
then pushed her
down onto the ground, undressed himself and proceeded
to have sexual intercourse with her without the use of a condom. When
he
was finished, they went to the other side of the wall again where
they found her boyfriend lying on the ground. The couple were

instructed to walk to the cemetery and not to look back.
[47]
They
ran into the cemetery. They shouted for help at a certain house. Some
people came to their assistance and one man offered to
look for
transport to the clinic. They drove to Alexandra clinic but when they
reached the clinic they were told that they were
required to go to
the police station. They thereupon went to the police station, made
statements and were finally taken to Hillbrow
clinic where Ms M. was
examined by a doctor. She received counselling in Alexandra and
testified that this ordeal has traumatised
her a lot.
[48]
Ms M.
was examined by Dr A Sharif. The version of events as recorded by the
medical practitioner in the J88, accords substantially
with the
version testified to in court. A forensic specimen was taken and
sealed with seal number 10D1AE5720.
5 October 2014 (Counts 35 and 36)
[49]
No
evidence was lead in respect of these counts but in paragraphs 31 and
32 of exhibit “A”, Mr Mkansi admitted that
on 5 October
2014, M. M. (“
Ms
M.
”),
a female of 36 years of age was at or near the Engen Garage in
Tsutsumani, Alexandra when an act of sexual penetration
was committed
upon her, without her consent. It was also admitted that Ms M. was
assaulted and robbed of a handbag, seven hundred
rand (R700) in cash
and a Nokia cellular phone, aggravating circumstances being present
in that a firearm and/or dangerous weapon
was wielded. According to
the J88 Ms M. was 36 years old at the date of her ordeal. She was
examined by Dr Amma Ilunga at 01h30
on 6 October 2014. The doctor
concluded that there was clinical evidence of recent vaginal
penetration. A forensic specimen was
taken and was marked with seal
number 10D1AE7638.
5 November 2014 (Counts 54 and 55)
[50]
Ms R.
M. (“
Ms
M.
”)
(19 years old at the time) testified that on 5 November 2014, she had
left her granny’s place at about 19h00 and
was walking along
the park next to the cemetery, when two men whose faces were covered
with balaclavas, approached her. Both men
were wielding firearms and
ordered her to enter the cemetery. She described the one man as being
taller than the other. Upon entering
the cemetery, she was instructed
to sit down. One of the assailants left and returned with another man
and woman, two other victims.
Ms M. and the other woman were
instructed to undress whilst the other male victim, was ordered to
lie face down. He was also ordered
to take off his shoes. The tall
man then had sexual intercourse with Ms M. and did not use a condom
when doing so. The short man
had sexual intercourse with the other
female victim. Neither Ms M. nor this unidentified further victim
consented to this sexual
intercourse. Ms M. was then instructed to
leave. She went home where she met her boyfriend, Mr S.. She told him
what had happened
and after approximately 20 minutes he received a
whatsapp message which Ms M. read. It read: “
I’ve
just had intercourse with your girlfriend – she was wearing a
red dress
”.
Ms M. confirmed that she was wearing a red dress on the given day.
Two text messages were received. Mr S. tried to phone
the number but
by then the phone had been turned off. Mr S. accompanied Ms M. to the
Alexandra police station. She was taken to
the hospital where she was
medically examined. She testified that she only went to counselling
once. She explained that she was
extremely traumatised and did not
want to leave the house. She said that because the text messages had
been sent to Mr S., she
knew that the assailants had accessed her
photo gallery on her phone and that the assailants were able to
identify her. She felt
particularly vulnerable as she was unable to
identify them. She said that this incident also caused her to leave
her employment.
She said that she had long hair at the time of the
ordeal but, in an attempt to change her appearance, had cut her hair
so that
her assailants would not be able to recognise her. She was
unable to identify any of her assailants.
[51]
The
J88 received as evidence reflects that Dr G Hutton had conducted a
medical examination at 14h30 on 6 November 2014 and that
a forensic
specimen had been taken from Ms M. and had been marked with seal
number 10D1AE6817JJ.
13 November 2014 (Count 56)
[52]
Ms
Pauline R. (‘
Ms
R.’
)
did not testify but admissions in terms of Section 220 of the CPA
were made in terms of which Mr Mkansi admitted that on 13 November

2014, Ms R. was 14 years old and that an act of sexual penetration
had been committed upon her without her consent at or near Jukskei

Park in Alexandra. It was further admitted that two assailants had
committed the crimes mentioned in the indictment, upon her.
[53]
The
J88 reflects that she was examined by Dr Klisiewicz at 01h20 on 14
November 2014 who had concluded that there were signs of
forced
vaginal penetration. She had taken a forensic specimen from her and
had marked the specimen with seal number 10D1AE7451.
It was recorded
that the offenders had taken her “panties”. The J88
records that she was 161cm tall weighing 53.5 kilograms.
It was
recorded that she had deep fresh cracks with blood at 4 o’clock
and 6 o’clock on her posterior fourchette, these
tears were
indicated on the J88 form, it was also noted that she was bleeding.
27 November 2014 (Counts 59 and 60)
[54]
Ms L.
I. M. (“
Ms
M.
”),
who was 23 years old at the time of her ordeal, described that on the
27
th
of November 2014, she was in the company of Mr M. J. R. (“
Mr
R.
”),
the father of her child. She was accompanying him to park his
vehicle, as he is a taxi driver by profession. On their
way to park
the vehicle at the owner’s house, they met two men. She doesn’t
recall how they were dressed nor did she
see their faces. Mr R. had
stopped to enquire from them where they were going and they responded
that they were going to the Engen
garage at Tsutsumani in Alexandra.
They got into the taxi. Just before they reached the Engen garage the
two men produced firearms
and ordered Mr R. to drive to a shopping
complex, which is no longer in use. Upon arrival they were ordered to
alight from the
vehicle whilst the firearms were still being pointed
at them. The one assailant was tall and the other short. The short
man walked
Mr R. to the front of the vehicle. The assailants
conducted a search of the couple and took their phones as well as
cash. The tall
man took Ms M. into the complex and instructed her to
undress herself. She pleaded with him explaining that her child was
only
four months old and that she was still breastfeeding. He told
her that she was lying and that she should express milk in order to

prove that she was still doing so. He insisted that she take off her
trousers and underwear and that she lie down. He thereafter
lay on
top of her and had sexual intercourse with her without a condom.
After that he picked her up and they went back to the motor
vehicle.
Mr R. was, at that stage, still being held up by the short assailant.
Mr R. tried to resist the attempts but was threatened
that he would
be shot. The short man and the tall man exchanged roles. The short
man then took Ms M. back to the complex, the exact
same room, where
she pleaded with him to release them. He told her that he would shoot
her. He said that she should undress her
trousers and underwear. He
then had sexual intercourse with her without the use of a condom.
They went back to the vehicle where
they were asked to whom the motor
vehicle belonged. Mr R. explained that he was a taxi driver and not
the owner. The assailants
left.
[55]
Ms M.
and Mr R. left the vehicle at the shopping centre and walked to the
owner of the vehicle. They went to the police station
and then to a
clinic. She was asked whether she had received counselling to which
she responded that she had not and could not
do so at the time as she
was employed and the employers did not afford her time off to attend
the counselling sessions. She was
unable to identify the assailants
because she was ordered not to look at them. She had not consented to
sexual intercourse with
either of them.
[56]
The
J88 reflected that Ms M. had been examined by Dr Santana who had
recorded that she had sustained abrasions on the fossa navicularis
at
6 o’clock and the medical practitioner had recorded that such
injuries were consistent with recent genital penetration.
A forensic
specimen was taken which was marked with seal number 10D1AE6816.
21 December 2014 (Counts 38 and 39)
[57]
T. P.
(“
Ms
P.
”)
testified that on 21 December 2014 at approximately 18h00 when she
was 22 years of age, she and her boyfriend Mr D. S.
(“
Mr
S.
”)
were walking past East Bank Park. She explained that she was dancing
for Mr S..  They crossed the bridge over the
Jukskei River when
two men, whose faces were covered with balaclavas, approached them.
They both produced firearms. One was taller
than the other. She
explained that they demanded their cellphones. As they were about to
hand over their cellphones the short man
said that they had a special
place where they searched people. They walked to a big wall in the
park. When they reached this wall
they both handed over their
cellphones. The tall man approached her and pulled her boyfriend’s
t-shirt over his face. The
tall man said: “
Voetsek
and dunuza
”.
He instructed her to turn around and bend over. Because she didn’t
understand Zulu she kept looking at him. He repeated
it and then
pointed the firearm at her and turned her around, he bent her down
and had sexual intercourse with her. The short man
then came across
to her and proceeded to have sexual intercourse with her. She
testified that she had not consented to sexual intercourse
with
either of them and that neither had used condoms during the process.
After the rapes, they took Mr S. and put him on a heap
of sand. They
said because he didn’t have any money they were going to shoot
at him. She had money hidden in her clothing
and took three hundred
rand (R300) out. They gave her twelve rand (R12) and took the
balance. They instructed them that when they
fired a shot they should
leave. They then fired one shot.
[58]
The
couple went to the police station where they narrated their ordeal.
Ms P. explained that she had seen a medical practitioner.
She said
that she had attended counselling but that this incident had damaged
her so much. She explained that she didn’t
even tell her
family. She was unable to tell anybody about what had occurred.
[59]
The
J88 records that Ms P. was examined by Dr Sharif who recorded that
the absence of injuries did not exclude a sexual assault.
He took a
forensic specimen which was marked with seal number 13D1AC3420.
5 January 2015 (Counts 62, 64, 66
and 68)
[60]
Y. S.
(“
Ms
S.
”)
stated that her date of birth was 9 February 1999. She testified in
this court on 10 February 2017. She had thus just turned
18. On 5
January 2015, Ms S. was 15 years of age and about to start grade 11.
At about 18h00 she was with a friend X., at the East
Bank Park. A
man, whose face was covered with a balaclava, approached them
wielding two guns. He demanded that they hand over their
cellphones
and follow him. They followed him and met up with another couple who
were also instructed to follow the gun wielding
assailant. Both Ms S.
and X. handed over their cellphones. He led them to a big wall in the
park. He instructed them to lie down
facing down. He proceeded to
make a phone call in which he called someone else. After he had made
the call, another male person
arrived in the company of yet another
couple, a man and a woman. They instructed the 3 couples to undress
and to have sexual intercourse
with one another. After a while they
said that the men should stop what they were doing as they were not
doing anything, and that
they would do “
it
”.
She explained that there were two assailants, one was taller than the
other and the person who had apprehended her and
X., had been tall.
The short man’s face was also covered with a balaclava. She
explained that it was the tall man with the
two firearms, who had
issued the instruction that they should exchange partners. It was
also he who said that the men should stand
down. The tall man
approached Ms S. and proceeded to insert his fingers into her vagina.
He asked her how old she was. She responded
that she was 15. He then
had sexual intercourse with her. After he had ejaculated he called
the short man who then had sexual intercourse
with her as well.
Neither of the assailants wore condoms. She said that one of the
other girls was crying as she was being assaulted
with a belt by the
short man. She explained that she had not consented to sexual
intercourse with either of these two men.
[61]
She
went home and narrated the story to her sister who took her to the
clinic. There she was told to go to the police station where
she made
a statement and finally she went to the clinic where she was examined
by a doctor, Dr Amma Ilunga. She found that her
posterior fourchette
had been bruised and concluded that the clinical evidence revealed
recent vaginal penetration. This examination
was done at 04h00 on 6
January 2015. A forensic specimen was taken and marked with seal
number 10D1AE7055.
[62]
Ms L.
M. (“
Ms
M.
”)
testified that her date of birth was 23 July 1998 and that she was 16
years old at the time of her ordeal. She was with
her friend Mr T. M.
(“
Mr
M.
”)
at about 18h30 at the East Bank Park in Alexandra, when she was
approached by three people, two men and one woman. The
one man was
wearing a balaclava and was speaking in the Zulu language. He took Mr
M.’s phone and then ordered the couple
to go behind a wall. Ms
M. explained that this was a wall used for rock climbing. Counsel for
the State and counsel for Mr Mkansi
agreed that Ms M. had indicated a
wall measuring about 5 x 4 metres. He said do something stupid if you
want to die. The man was
talking in the Tsonga language on his phone
enquiring from the person he was speaking to where he was. He then
instructed all those
present to sit against the wall. The second
assailant arrived, also wearing a balaclava and brought another
couple. He was also
wielding a firearm. There were now three couples,
three woman and three men being held up by the two men, both wearing
balaclavas,
the one being taller than the other. They were instructed
to undress. Ms M. refused. The tall man then kicked her and took her
cellphone from her which, between her and Mr M., they had managed to
hide until that stage but due to the tall man kicking her,
the light
had come on and he had noticed the phone.  She took off her
trousers. The tall man then instructed the couples to
swop partners
and to have sexual intercourse with one another.
[63]
She
told the man who was allocated to her not to insert his penis into
her vagina. The two assailants kept walking around inspecting
whether
the victims were complying with their orders. Ms M. explained that
she did not have sexual intercourse with the person
allocated to her.
The men were then told to stand aside. The tall man said that they
were not done and that they were not to get
dressed. The tall man
then started raping someone to her left. Whilst he was doing that the
short man called her across to him
and reassured her that the tall
man would not be doing anything to her and when they get home that
day, they were to tell their
parents that they don’t listen.
The short man then had sexual intercourse with her. She did not
consent to this conduct.
The short man did not use a condom. The
short man raped the other two girls as well. Whilst this was
happening the tall man was
just watching. They were then told to get
dressed and never to come back to the park again.
[64]
Ms M.
went home, told her mother what had happened and went to the police
station where they found the other two women who had been
raped. She
explained that she didn’t know the other women and that she had
seen one the previous day at court. After they
had made their report
to the police she was medically examined by Dr Klisiewicz. Her J88
reflects that she was examined at 03h45
on 6 January 2015. The
medical practitioner recorded that she had fresh tears at 4 o’clock,
5 o’clock and 6 o’clock
on her posterior fourchette and
concluded that there were signs of forced vaginal penetration. A
forensic specimen was taken and
marked with seal number 10D1AE7056.
[65]
Mr M.
testified that on 5 January 2015 at about 18h00 he was at the East
Bank Park with Ms M.. He was 19 years old. A man wearing
a balaclava
and wielding a gun arrived. He was in the presence of another couple.
He demanded their phones and then ordered them
to walk to the rock
climbing wall. He was on his phone to his friend. His friend, who was
shorter than him, arrived. There were
now 3 couples, 3 men and 3
woman. The tall man instructed the men to have sexual intercourse
with their partners. He had sexual
intercourse with Ms M.. After this
they were ordered to exchange partners. He did not have sexual
intercourse with the person allocated
to him. Whilst this was
happening, both assailants were pointing firearms at them. The men
were told to stand aside. Their faces
were covered with their
t-shirts. He knew the girls were being raped as he could hear them
crying. At some point a person approached
and a shot was fired. The
approaching person ran away. Ms M. also told him that she had been
raped.
[66]
V. M.
(“
Ms
M.
”),
26 years old on 5 January 2015, explained that at about 20h30, she
and her boyfriend were in the East Bank Park. Two men
approached them
and pointed firearms at them. One was sitting with other people. They
were ordered to join the other people and
instructed to hand over
their cellphones. The one assailant was taller than the other. The
shorter assailant assaulted her with
a shambok as she didn’t
want to hand over her cellphone. She explained that there were three
couples, three men and three
women. They were ordered to exchange
boyfriends and undress. Another man then had sexual intercourse with
her. After the male victim
had had sexual intercourse with her, the
short man had sexual intercourse with her. She explained that she did
not consent to this
conduct and that the short man had not used a
condom during this act.
[67]
She
reported this to the police and then went to a clinic where she was
examined by a medical practitioner. The J88 received as
evidence in
respect of Ms M. reflects that she had an “
8
centimetre, red/ dark linear bruising and abrasion on her left
shoulder
”
and that the medical practitioner considered this injury to be
consistent with the version given to her. A forensic specimen
was
taken which was marked with seal number 10D1AE7052. She explained
that she had not been for counselling but that she had been
taken to
a social worker in Alex who had guaranteed her that everything would
be well. She explained that she was not well and
that she had
nightmares and heard the voices of her assailants almost on a daily
basis.
10 January 2015 (Counts 41, 43 and
44)
[68]
The
rape victims in respect of counts 41 and 43 did not testify. However
it was admitted that on 10 January 2015 acts of sexual
penetration
were committed upon, S. M. (“
Ms
M.
”)
who at the time was 15 years of age and who was in the company of R.
N. (“
Ms
N.
”)
and O. M. (“
Mr
M.
”),
without her consent and that two assailants had committed such crime.
It was also admitted that an act of sexual penetration
had been
committed upon Ms N. who was 19 years on 10 January 2015, at East
Bank Cemetery and that two assailants had committed
such crime. No
J88 was received as evidence in respect of Ms N.. The J88 of Ms M.
reflected that she was examined by a medical
practitioner at 03h41 on
11 January 2015 and that the medical practitioner had recorded that
Ms M.’s body build was petite,
that she weighed 45.3 kilograms
and was 1.54 centimetres tall. She recorded that a forensic specimen
had been taken and that it
had been sealed with seal number
13D1AC3412.
[69]
Mr M.
testified that on 10 January 2015 when he was only 16 years of age,
he was in the company of his girlfriend, Ms M., and his
sister, Ms
N.. Two men confronted them, one was taller than the other and they
were both wearing balaclavas and wielding guns.
They searched them,
took Mr M. and Ms N.’s cellphones and ordered them to walk to a
cemetery. When they reached the cemetery
he was ordered to lie down
and his face was covered with his shirt. The one assailant put his
leg on Mr M.’s back and asked
him whether he wanted a gun to
which Mr M. responded that he did not. After approximately 30 minutes
they released them. The incident
was reported to the police and Ms N.
reported to him that they (her and Ms M.) had been raped by these
assailants.
26 January 2015 (Count 61)
[70]
The
victim to which count 61 relates, one D. P. M. (“
Ms
M.
”)
was 14 years old at the time of her ordeal. She did not testify but
admissions were made relating to her. It was
admitted that on
26 January 2015 and at or near East Bank Park in Alexandra, an act of
sexual penetration was committed upon her
without her consent and
that there was one assailant that had committed such crime.
[71]
The
J88 recorded that Dr Venkatesh had examined Ms M. at 13h05 on 27
January 2015. He recorded: “
She
was sexually abused (vaginal penetration only) by an unknown black
male, without using a condom, at about 19h00 on 26 1 2015,
in a bush,
inside a graveyard, in Alexandra. Coercion. Gun and a plier. Also was
hit on the head with a gun.
”
The medical practitioner had, in addition, recorded a tender left
side of her head and approximately 5 centimetre long deep
abrasion
across the outer side of her right arm. He concluded that the soft
tissue injuries were consistent with the history and
the time of the
incident as related to him by Ms M.. Ms M. was not sexually active
and thus a virgin. A forensic specimen had been
taken and was sealed
with seal number 14D1AC1661JJ.
13 May 2015 (Counts 69 and 70)
[72]
B. K.
(“
Ms
K.
”),
who was 22 years of age on 13 May 2015, testified that she and her
boyfriend, Mr D. L. had gone to the East Bank Park
in Alexandra where
they were sitting on a bench when a masked gunman approached them
from behind. He instructed them to lie down
on their stomachs and
searched them for phones and money. He took both their cellphones,
opened Mr L.’s wallet, which only
had coins in it, and struck
Mr L. with the wallet because it did not have anything more in it.
They were then forced, at gun point,
to walk to a cemetery where they
were told to lie down on their stomachs. He tied Mr L.’s hands
and feet with shoelaces.
He then instructed Ms K. to lie on her back
whilst pointing the gun at her. She told him that she was pregnant.
She was approximately
3 months pregnant at the time. He nonetheless
undressed her and proceeded to have sexual intercourse with her,
without the use
of a condom. The sexual intercourse Ms K. experienced
as painful and she communicated this fact to him.  After he had
finished
he stood up and left them where they were.
[73]
She
untied Mr L.. They went to the police station where she reported the
incident and then went to the clinic where she was examined
by a
medical practitioner. The J88 which was completed in respect of Ms K.
reflects that she was examined at 23h30 on 13 May 2015.
The medical
practitioner found several abrasions and bruising during her
gynaecological examination and concluded that her injuries
on her
genitals were consistent with forceful penetration. A forensic
specimen was taken and sealed with seal number 14D7AB7422.
The Arresting Officer
[74]
Ms
Nomsa Masuku (“
Ms
Masuku
”)
testified that she is currently working at the Independent Police
Investigative Directorate (“
IPID
”).
She started working there during May of 2016. Prior to that she was
employed by the South African Police Services (“
SAPS
”).
At the time that she left she was a sergeant and had 16 years’
experience as a police official. She was stationed
at the Gauteng
SAPS provincial office. She explained that prior to her leaving, she
was the investigating officer in the case of
Mr Mkansi.
[75]
She
was asked to explain the circumstances leading up to his arrest. She
said that during 2015 they had received cases from Alexandra,
which
cases had been clustered together due to the perpetrators having used
the same
modus
operandi
.
Upon perusal of these dockets they realised that none of the suspects
could be identified as the victims explained that the perpetrators

were wearing balaclavas. It became apparent that they had to rely on
other aids such as the cellphones of the victims which had
been
robbed to attempt to trace the perpetrators. They started applying
for Section 205 of the CPA authorisations in respect of
such
cellphones. On 4 June 2015 they managed to track one cellphone to the
Randburg area. She phoned a user of a cellphone and
advised her that
she wanted to employ a domestic worker. The holder of the cellphone
agreed to meet with Ms Masuku. Upon arrival
Ms Masuku explained who
she truly was and identified those with her as police officers. The
woman explained that the phone was
broken but that Ms Masuku and the
other officers could accompany her to her home where she had kept the
phone. Ms Masuku asked
from whom she had received the phone and she
replied that she had bought it from an African male who lived close
to her. The woman
then took Ms Masuku to the person from whom she
said she had bought the phone. They were introduced to Mr David
Mohale (“
Mr
Mohale
”).
[76]
Ms
Masusku asked Mr Mohale whether he knew about the phone. He explained
that he had received the phone from his brother-in-law
who was
staying in Alexandra. She asked whether Mr Mohale could take them to
him and he agreed on certain conditions, saying that
he was scared of
him, because he was always armed with firearms.
[77]
Ms
Masuku requested the assistance of the technical response team. Mr
Mohale remained with her. On arrival, Mr Mohale showed them
the room
where his brother-in-law stayed.
[78]
Mr
Mohale knocked at the door calling the brother-in-law’s name
being “Ace”. The brother-in-law responded but
he didn’t
open the door. He asked Mr Mohale what he was doing there as it was
so early in the morning. Because of his reluctance
to open the door,
Ms Masuku ended up telling him that the police were outside. He did
not open the door. The technical response
team then forced the door
open. When they opened the door, Mr Mkansi was sitting on top of the
bed half naked. Because of this,
only her male colleagues entered the
room. They explained who they were and why they were there. They
asked why he didn’t
want to open the door but he didn’t
give any explanation. They then asked for permission to search the
room. He agreed.  Two
firearms and ammunition were recovered. He
couldn’t produce licences for them. He was asked for an
explanation for the firearms
but couldn’t provide one. He was
told that he was being arrested for the possession of unlawful
firearms and ammunition.
He was also showed the phone. He was then
taken to the Alexandra police station. He appeared at Alexandra court
on 8 June 2015.
He pleaded guilty to firearm and ammunition charges,
and received a suspended sentence whereupon he was released. Ms
Masuku explained
that they had to find another phone.
[79]
She
explained that this was quite a setback for the investigating team as
they had assumed that he would be detained for at least
7 days which
would afford them sufficient opportunity to investigate further. They
were driven to trace another phone which they
did and agreed to meet
with another woman at Marlboro, in Alexandra. Ms Masuku identified
herself to the holder of the phone as
a police officer and explained
to her that she was looking for her cellphone. The woman handed the
phone to her and verified the
IMI number.
[80]
Ms
Masuku testified that this phone had belonged to one of the rape
victims although she couldn’t recall which rape victim.
The
holder of the phone was asked to disclose from whom she had received
the phone. The woman explained that she had received it
from her
boyfriend. She was initially reluctant to disclose the whereabouts of
her boyfriend but when told that she would be arrested
for possession
of the cellphone, she took the arresting officer to Mr Mkansi’s
home. She pointed Mr Mkansi out. Ms Masuku
explained to Mr Mkansi
that they were arresting him for the cellphone. This all occurred on
the afternoon of 8 June 2015.
[81]
This
time he appeared in court and was denied bail. During his
incarceration a Buccal sample was taken and it was revealed that
his
DNA was linked to many of the rape cases. They dubbed him (and his
accomplice) the “
Alexandra
Balaclava Cemetery Serial Rapists
”.
There were initially 2 accused in the matter. The other accused’s
name was Sinja Robin Mabitsela (“
Mr
Mabitsela
”).
An informant had lead them to Mr Mabitsela as he had run away from
his residence. She said that the informant had advised
that Mr Mkansi
and Mr Mabitsela were good friends. She did, however, independently
witness that they were friends. She saw this
from their exchanges in
prison.
[82]
She
testified that Mr Mkansi was taller than Mr Mabitsela.
[83]
During
cross examination it was put to Ms Masuku that the police did not
first knock at Mr Mkansi’s door but that they had
broken down
the door as they arrived. Ms Masuku denied this and explained that Mr
Mohale had called his name several times and
had indeed called him by
the name “Ace”. It was only when he failed to open, that
they needed to break open the door.
It was put to Ms Masuku that
nothing had been explained to Mr Mkansi when his Buccal sample was
taken. She denied this and said
that he had even signed the form
which is contained in the Buccal sample kit. It was further put to
her that during his second
arrest he was driving home and when he got
home the police were there. Ms Masuku denied this and said that he
was home and he had
already packed his bags, it was clear that he was
leaving Gauteng. His electronic equipment had been taken from his
room. During
cross examination he was asked why Mr Mkansi was
detained at Sandton.  Ms Masuku explained that the community was
up in arms
about this matter. She said the case had been discussed on
Carte Blanche and the community had complained that the police
weren’t
doing anything to protect them.
[84]
During
questioning by the court for purposes of clarification, it transpired
that Mr Mkansi was arrested for the first time on 5
June 2015, which
was a Friday, in the early hours of the morning. His first court
appearance was on 8 June 2015, on which day he
was sentenced for
possession of the firearms. He had received a wholly suspended
sentence.
[85]
She
also explained that his constitutional rights i.e. his right to
remain silent, his right to have a legal representative present,

right to contact a family member and that anything he said could and
might be used against him in a court of law, was explained
to him
both in the Zulu language, by one of the other policemen and by
herself, in English. These rights were explained before
the room was
searched. She also explained that he was asked about the phone but he
couldn’t provide an explanation. She explained
that she
witnessed the taking of the Buccal sample but doesn’t recall
when it occurred. Resulting from the questioning of
the court certain
further propositions were put. It was put to Ms Masuku that if the
door were open one would not be able to see
inside the room where Mr
Mkansi was living as the wardrobe would obstruct the view. Ms Masuku
denied this, explaining that the
wardrobe was against the wall. It
was put to her further that on the day of the arrest the bags were
packed because the room was
being tidied. Ms Masuku denied that the
police had messed up the room and explained that the police had found
the first firearm
and that he had thereafter showed them where the
second one was. There was no need to disturb the room to the extent
suggested
by the cross-examiner. It was further put that his rights
were not explained to him, nor did he give permission for his room to

be searched. It was further put to her that he was wearing his
pyjamas and that he was not half naked.
[86]
It
was also denied that his rights had been explained to him. It is
perhaps opportune to mention at this point that this line of
defence
was not pursued during either Mr Mkansi’s evidence in chief or
during closing argument.
David Mohale
[87]
Mr
David Mohale (“
Mr
Mohale
”)
testified that he knew Mr Mkansi and that Mr Mkansi was his
brother-in-law. He explained that during January 2015 he had
received
a telephone call from Mr Mkansi. Mr Mkansi had advised him to come
over and see his new motor vehicle. Mr Mohale declined
the invitation
and said that he was obliged to sign for his parole but that he would
come over the following day. The following
day he went to Randburg to
sign for his parole and then went to Alexandra where he saw Mr
Mkansi’s vehicle. It was a bakkie.
As he was about to leave, Mr
Mkansi went inside the room and collected two phones, they were two
AG’s. Mr Mkansi gave Mr
Mohale one and inserted a Vodacom sim
card with twenty seven rand (R27.00) charge voucher into a phone and
gave it to him. When
he arrived home, he sold the phone to his
neighbour. Subsequently he saw the woman to whom he had sold the
phone in the company
of police. The police enquired from him from
whom he had received the phone. He explained that he had received it
from his brother-in-law,
Mr Mkansi. He accompanied the police to
Alexandra where he pointed out Mr Mkansi’s place of residence.
Upon arrival the police
knocked but Mr Mkansi did not respond. The
police thereupon broke open the door. Mr Mohale says that he was not
inside because
after they broke the door, they locked Mr Mohale
inside the car. He didn’t know what had happened inside. He
only heard that
a lot of items had been found.
[88]
He
was asked whether he had been arrested for the phone and he responded
that he had been arrested on 4 June 2015 and that he had
been
released on 26 August 2015. He was asked whether he was given a
reason why he was being arrested and he responded that he
was told
that the police were still investigating the matter because the phone
had been found in his possession. He was further
asked during cross
examination why he had decided to sell the phone and he explained
that he did odd jobs and at that stage he
did not have money for
transport and he decided to sell the phone. He was asked whether he
had knocked on the door and whether
he had called out Mr Mkansi’s
name. He responded that he had. It was put to him that Mr Mkansi had
never given him a cellphone.
Mr Mohale was very emphatic about the
fact that Mr Mkansi had given him the phone. It was put to Mr Mohale
that Mr Mkansi was never
in possession of any AG phones and was asked
what had happened to the cellphone and Mr Mohale had explained that
it had been confiscated
by the police.
Maria Ratiba
[89]
Maria
Ratiba (“
Ms
Ratiba
”)
explained that during 2015 she had been Mr Mkansi’s girlfriend.
During about January 2015 he had given her a Blackberry
phone. She
used it for about two months whereafter it was no longer functional.
He repaired the phone and returned it to her. She
used the phone
until around June 2015 when she was contacted and requested to meet
with the police. They asked her from whom she
had received the phone.
She explained that her boyfriend had given it to her. She denied that
she had taken the police to his home
and explained that she had
directed the police to his home. She said that she was arrested and
detained for four days during which
time she was taken to the Sandton
police station where she had identified and pointed out her
boyfriend, Mr Mkansi, who was the
accused before court. She didn’t
know Mr Mabitsela and she explained that after he had confirmed that
he had given her the
phone, the charges against her had been
withdrawn. It was put to Ms Ratiba that he had told her that he had
bought the phone from
Mr Malisela who at the time was working at a
casino, he later became a taxi driver. She denied this communication.
DNA EVIDENCE
[90]
Veronica
Letabo Thomas (“
Ms
Thomas
”),
explained that she was employed by the SAPS attached to the biology
section of the forensic science laboratory as a senior
forensic
analyst and reporting officer. She explained that she had twelve
years’ experience at the forensic science laboratory
and five
years’ experience in the biological science’s field. In
total she had approximately seventeen years’
experience in the
biological sciences field. She has a BsC honours degree in
microbiology obtained at the University of Limpopo.
Her duties
include monitoring DNA samples and reporting to the court in respect
thereof. Before going to court she monitors samples,
evaluates them
and reports on them. She explained the general procedure when
forensic specimens were received. She said that the
receipt of
forensic specimens was done by administration clerks. Before they
accepted them, they are checked to see if there are
any signs of
tampering. They only accept receipt of the specimens if they are
properly sealed and still intact. If there are any
changes the
investigating officer’s will have to collect them, but if
everything is found in order, these administration
clerks issue
acknowledgments of receipt. This then the first test that the
forensic specimens must pass.
[91]
The
forensic specimens are then archived in exhibit storage rooms during
which process they are allocated a unique number which
is an LAB
number. This, she explained, is the number which is used to
communicate with the investigating officer. These exhibits
are then
allocated to an evidence recovery analyst who also does a quality
check which includes confirmation that the seals are
intact, the
markings are intact and that there are no leakages. If the exhibits
don’t pass this test, the evidence recovery
analyst issues a
letter to the investigating officer, requesting him to fetch the
exhibits and they are stored until he fetches
them. This then the
second test forensic specimens must pass.
[92]
The
analyst proceeds to do the evidence recovery. Before any examination
starts the analyst ensures that she has put on personal
protective
equipment. This would include a laboratory coat, gloves, a hair net,
a face mask and safety shoes. This is to ensure
that no contamination
from the analyst to the specimen occurs. The working station and
utensils are cleaned with water and Jik.
[93]
The
analyst then proceeds to break the seals. The specimens are analysed
according to the charge contained in the covering letter
from the
police station. In cases of rape, the analyst looks for “presumable
semen”. At this stage the analyst is not
sure whether the
sample contains semen or whether it is any other body fluid. In cases
of robbery, the analyst looks for blood
or touch DNA. The analyst
then reports their findings as to whether the specimen contains
“presumable semen” or no
semen.
[94]
If
no semen is detected a letter to that effect is issued to the
investigating officer and no DNA analysis is done. If semen is
found,
the analyst proceeds with a DNA analysis. All specimens which are
“presumably semen” are allocated a unique
number. This
case file is then allocated to a case officer.
[95]
The
DNA analysis process is a blind process, which means the analysis is
done with a barcode and the DNA sample only, and not in
the context
of a case. The analyst does not know the identity of the individuals
underlying the samples.
[96]
The
DNA is then removed from the actual sample and the amount of DNA is
quantified. Some samples fail at this stage as no DNA can
be found.
Those samples with enough DNA to proceed, are then amplified by
magnifying the DNA to millions for easier visualisation.
Ms Thomas
explained that this is done because one is working with minute
volumes and one requires a million “copies”
for the naked
eye to see. During this entire process, quality checks are also done.
The specimens may fail if they don’t
reach a certain threshold.
[97]
Ms
Thomas is able to ascertain whether a specimen failed due to a
particular reason and will also see whether the samples which
were
given, were usable. This analysis is then compared to a reference
sample. It is termed a reference sample as it is from either
a donor
or a known source. Two profiles are compared to see whether they
match and where samples don’t match the reference
sample, the
laboratory issues an exclusion statement. For those samples which
have insufficient DNA, such a statement is also issued.
Similarly,
for those samples where no DNA could be found, an exclusion statement
is issued. When there is a match between a reference
and the
specimen, a statement is issued to that effect. Ms Thomas explained
that there are different kinds of DNA profiles. She
said there are
two kinds of DNA profiles, a full DNA profile which is where only one
donor has contributed to the sample/ specimen
and a mixed DNA profile
which is when there has been more than one contributor to the DNA.
She explained that ten regions are used
for DNA profiling. The first
region is a gender marker which tells one whether the donor is male
or female, the remaining nine
regions are unique.
[98]
Ms
Thomas explained that DNA is unique to an individual. No two or more
people have the same DNA except identical twins. She explained
that a
person’s DNA did not change during their lifetime. She further
explained that the DNA found in the body is the same
in all the
cells. The DNA in the blood is the same as the DNA in hair follicles
which is the same as that found in soft tissue
and the same in semen.
DNA is hereditary. One inherits one half from your mother and the
other half from your father but it will
still be unique. Of the ten
regions used at the laboratory, one region is a gender marker. Male
equals XY and female equals XX.
The remaining nine regions are where
the unique DNA comes in. A full DNA profile would be indicated by two
characteristics per
region. Those characteristics can be the same,
meaning both mother and father contributed the same or they could be
different.
A full DNA profile would be indicated by two
characteristics per region. It could be three or more per mixture
depending on how
many people contributed towards that mixture. When
it comes to mixed DNA, when one characteristic is missing, the person
thought
to be linked can be considered excluded due to the fact that
anyone could contribute to a mixed DNA profile.
[99]
Once
a profile is obtained, the laboratory also does a statistical
evaluation to see how common the possible contributors to the
DNA
result is. The four affidavits in terms of Section 212 of the CPA
were received as evidence and the content thereof confirmed
by Ms
Thomas. The relevant portion of each affidavit was carefully read
into the record and the findings in respect of each region
carefully
placed on record. The Section 212 of the CPA affidavits, the content
of which was confirmed by Ms Thomas under oath,
revealed the
following:
99.1.
The
reference samples of Mr Mkansi and Mr Mabitsela could be read into
the mixture DNA result obtained from the vulva swab of Ms
M. (Count
59);
99.2.
The
most conservative occurrence for the DNA result from the vulva swab
of Ms M. for all the possible contributors to the mixture
DNA result,
is one in twelve thousand people.
99.3.
The
DNA result obtained from the following exhibits matched the DNA
result from Mr Mabitsela:
99.3.1.
The
cervical swab taken from Ms M. (Count 35);
99.3.2.
The
cervical swab taken from Ms M. (Count 25);
99.3.3.
The
vaginal vault swab taken from Ms P. (Count 38);
99.3.4.
The
cervical swab taken from Ms M. (Count 59);
99.3.5.
The
vaginal vault swab taken from Ms M. (Count 41).
99.4.
The
most conservative occurrence for the DNA result obtained in
paragraphs 99.3.1 to 99.3.5 above, is 1 in 21 billion people.
99.5.
The
DNA result obtained from the following exhibits matched the DNA
result for Mr Mkansi:
99.5.1.
The
cervical swab taken from Ms M. (Count 45);
99.5.2.
The
vestibule swab taken from Ms T. (Count 50);
99.5.3.
The
cervical swab taken from Ms M. (Count 54);
99.5.4.
The
cervical swab taken from Ms R. (Count 56);
99.5.5.
The
cervical OS swab taken from Ms M. (Count 61);
99.5.6.
The
cervical swab taken from Ms S. (Count 62);
99.5.7.
The
vaginal vault swab taken from Ms K. (Count 69).
99.6.
The
most conservative occurrence for the DNA result obtained in
paragraphs 99.5.1 to 99.5.7 hereof, is 1 in 5.4 trillion people.
[100]
Ms
Thomas further testified that there are currently approximately six
billion people on earth. Ms Thomas was asked how reliable
the entire
DNA process was. She explained that it was very reliable but not 100%
fool proof as only the STR part of the DNA was
done and not the
entire DNA profile. She explained however that the chain is
maintained, that there is no contamination and that
each person
working in the chains’ DNA has been loaded on to the system and
will be picked up if there has been any contamination.
She explained
further that there are several quality checks along the way before
results are released.
[101]
She
was specifically asked whether she was aware of any contamination or
breaks in the chain in this matter and she explained that
there were
none that she was aware of. She was asked whether as a reporting
officer she would be made aware of such occurrences.
She explained
that if any seals had been broken it wouldn’t have been
received at the reception desk but if, by virtue of
human error, it
did pass or slip through the process it would have been noticed when
the seals were opened and it would have been
placed in a case file.
[102]
She
concluded by testifying that the Buccal samples for both Mr Mabitsela
and Mr Mkansi, were forwarded to her.
[103]
During
cross examination she was asked what a full DNA profile was and what
a mixture DNA profile was. Ms Thomas explained that
a single donor
full profile is DNA that came from one donor only and it is
represented by two characteristics in one region. One
characteristic
emanates from the mother and the other half from the father. They
could be the same character or they could be different
but it would
mean that the one emanated from the mother and the other from the
father. A mixture DNA profile would consist of more
than two
characteristics in one region, it tells one that there is more than
one donor. She was asked whether there was a possibility
that a
mistake could arise during the analysis. She responded that in this
case the error rate was nil.
[104]
That
concluded the evidence for the state.
Xaniseka Josias Mkansi
[105]
Mr
Mkansi testified that he had no knowledge of the counts against him.
He acknowledged that Mr Mohale was his brother-in-law. He
denied that
he had given him a cellphone and explained that Mr Mohale had not
come to his house on the day as testified to by him.
He testified
that he had come to his house on 29 May 2015. He denied giving him a
cellphone. He was asked whether he knew of any
reason why Mr Mohale
would say so. He could not provide a reason. He was asked whether Mr
Mohale was present during his arrest
on 5 June 2015. He responded
that he didn’t know. He said that the police said that they
were looking for firearms and that
when they found the firearms he
was arrested.
[106]
He
admitted that he had given a cellphone to Ms Ratiba and that it was a
Blackberry phone. He stated that he had not told her where
he had
found it or from whom.
[107]
The
second time the police came to arrest him they told him that they
were arresting him on a rape charge. They explained that it
had
occurred in the East Bank Park but they didn’t mention when it
had occurred. He said that the Buccal sample was taken
on 8 June
2015. They didn’t explain to him what the purpose of this was.
He was visited in prison and told that his DNA was
found in different
rape victims. He explained that he didn’t have any knowledge of
these rapes. He couldn’t explain
why his DNA was found in the
most intimate places of the rape victims.
[108]
He
asked whether it would be possible for him to see the cellphone which
he had allegedly given to Mr Mohale. His legal representative
brought
an application for the State to produce the cellphone. The State
undertook to obtain the cellphone and the cross examination
of Mr
Mkansi commenced.
[109]
Mr
Mkansi explained that during the period 2014 and 2015 he was
self-employed as a motor mechanic and that he stayed at number […],

19
th
Avenue, Alexandra. He worked form 08h00 until 18h00. He was assisted
by his brother Derrik Mkansi. He explained that he was staying
alone
but that his girlfriend at the time, Delisile, would come around form
time to time. About five times a week. She would arrive
at around
19h00 because she finished work at 18h00. She would leave then as
early as 04h00 as she had to report on duty at 06h00.
[110]
He
explained that he could see the East Bank Park very clearly from his
property but that he had never visited the park. He only
saw it when
he walked past. He and Delisile never visited the park. He also saw
the cemetery from his property and he would estimate
that the
distance of the park form his property to be about 1.5 kilometres. He
explained that he had never been to the park at
night. He said that
he would not say that his house was across the road from the park
because one had to go down to the Jukskei
River, cross the river and
then you would get to the park.
[111]
He
explained that he knew Mr Mabitsela well. They became friends when
they did athletics together during 1988, 1989 and 1990.
Mr
Mkansi had put up a shack on Mr Mabitsela’s property where his
children resided. His property was close to Mr Mkansi’s
as it
was in 20
th
Avenue. He explained that during 2014 or 2015 he still saw him as he
would go and visit his children. He was asked whether Mr Mabitsela

was employed, to which he responded that when he came out of prison
during 2010, Mr Mabitsela was employed, but at that stage he
had
stayed in Tembisa it was only later that he moved to Alexandra.
Initially he explained that Mr Mabitsela would never come to
his
residence but then explained that Mr Mabitsela would come to have his
car serviced and that he would sometimes come to him
to complain
about his children.
[112]
He
was asked to describe the East Bank Park and he said that it was a
place where children played and there were things like swings.
He was
asked whether there was a wall structure and he said there was a wall
where people climbed on. He was asked where the wall
was in the park
and he responded that it wasn’t far away from the cemetery, in
fact he said, it is where the graveyard starts.
[113]
He
was asked whether he or Mr Mabitsela were the taller person. He said
he didn’t know but he thought that they were the same
height.
He said he never thought of taking notice of who was taller. He was
asked whether he could dispute what the arresting officer
had said
i.e. that he was taller than Mr Mabitsela and he responded that he
could not dispute that because he has never made measurements.
[114]
He
was asked whether he and Mr Mohale had a good relationship during
2014 and 2015. He explained that they had never sat down after
he
came back from prison. They only used to meet when they signed for
parole. He then explained that there was a problem between
the
families. He said that Mr Mkansi’s wife had passed away shortly
after he came out of prison.
[115]
During
cross examination Mr Mkansi stated that Mr Mohale had never visited
him during January 2015 but that he had done so during
May 2015. It
was put to him that Mr Mohale was thus mistaken about the dates. He
said this was not a misunderstanding, Mr Mohale
had changed the dates
intentionally. He was asked what the purpose was of the visit on 29
May and he explained that the reason
was because he wanted Mr Mkansi
to keep the firearms. It was then put to Mr Mkansi that none of this
was traversed during cross
examination of Mr Mohale. He responded to
say that he did tell the police about this but he didn’t tell
his legal counsel
about this because he thought that he would have an
opportunity to testify.
[116]
He
was also confronted with the failure to dispute the date that Mr
Mohale had said he had received the phone from Mr Mkansi which
is
during January 2015. He was asked why it was not put and he said that
he didn’t want to intervene while the proceedings
were
happening. He was asked whether he had disclosed the fact that he had
been visited in May rather than January to his counsel
and he stated
that he had. He was asked whether he thought that Mr Mohale had told
the police that Mr Mkansi had given him the
phone because of the
death of his wife and he responded that he didn’t know.
[117]
He
was confronted with the fact that according to him the relationship
between him and Mr Mohale was not good. Yet Mr Mohale trusted
Mr
Mkansi with the firearms, he didn’t answer the proposition but
merely stated that he had been requested by him to do so
because
there were boys that knew where he kept the guns.
[118]
In
respect of the second phone, i.e. the Blackberry, he explained that
he had bought the phone during January 2015 from Mr Malisela
who
worked as a security guard at the casino.
[119]
He
was asked why it hadn’t been put to the arresting officer that
the police were looking for firearms and he said that he
told himself
that he would be afforded an opportunity to speak in due course. He
also said that he didn’t tell his counsel
about this fact. He
testified that when he was asked where the firearms were, he said he
didn’t have any firearms. He lied
to the police because he was
protecting the owner of the guns. He also explained that the wardrobe
fell onto the floor and that
is when the police saw the firearms and
took them. He testified that they then started searching the room and
turned everything
upside down. He was asked whether he was informed
during his first arrest whether rapes were also being investigated.
He responded
that he was not so informed.
[120]
He
further explained that the Buccal sample was taken on 8 June 2015 at
about 08h00 at the police station. He then corrected this
to explain
that it was actually taken at court. When asked what the police said
during the second arrest, Mr Mkansi said that they
indicated that
they were charging him with rape and it was at that stage that they
disclosed to him that Mr Mohale had told them
that he had given Mr
Mohale a cellphone.
[121]
He
was asked why his DNA was found in the most intimate parts of these
complainants. He couldn’t explain this. He further
confirmed
that he didn’t know any of the complainants who testified and
that all the complainants are strangers to him.
[122]
Mr
Mkansi was confronted with the proposition which was put to Ms Masuku
that the second arrest occurred after he had been driving
home. He
was asked what he meant by that. Mr Mkansi responded that after his
first arrest, his motor vehicle was collected by his
brother and
after his release he had gone to fetch his car. He said that it was
past 7 in the evening. He was then asked how he
knew that the police
were following him and he responded that he didn’t know but
after he had parked his car, that is when
he saw the police. They
followed him inside. It was then put to him that he had explained the
bags in the bedroom. It was put to
Ms Masuku that he was tidying up
after the police had turned everything upside down. He then said that
it wasn’t him that
had been tidying up the house but rather his
girlfriend and his brother. He was then confronted with the
contradiction that he
had previously not mentioned either his
girlfriend or his brother. He then denied that his bags had been
packed at all and said
that his clothes were merely put together.
[123]
After
the court had asked a few questions for clarification purposes, Mr
Mkansi’s case was closed. At this juncture the State
made the
cellphone available that Mr Mkansi had requested to view at the end
of his examination in chief. It was agreed that Mr
Mkansi’s
case could be reopened and Mr Mkansi was again sworn in. He viewed
the phone and testified that he did not recognise
it but agreed that
it was an AG phone. He was asked why he wanted to see the phone. He
responded because the police had made mention
of it.  He said
the police had made mention of it during his first arrest. He was
asked what the police had said about it
during his first arrest and
Mr Mkansi responded that they had wanted to know what he knew about
the phone with the four starter
packs, ie four sim cards. He was
asked whether the police had told him whether the phone had been
robbed from a rape victim. He
responded that they had not said that.
The court asked Mr Mkansi whether the phone was shown to him during
his first arrest. He
responded that it had not been shown to him. The
court then inquired why it was necessary for him to see a phone he
had never seen
before. He said that he was just interested in seeing
the phone that was causing so much trouble for him.
[124]
The
court also inquired why he had previously during his evidence in
chief and during cross-examination never mentioned that the
police
did in fact ask him about the phone. He could not respond to this.
That concluded the case for Mr Mkansi.
EVALUATION OF THE EVIDENCE
[125]
Evidence
that the DNA profile of an accused person matches that of a sample
taken from a victim, or can be included therein, is
circumstantial
evidence. The weight thereof depends on a number of factors listed by
Van der Merwe AJA (as he then was) in
S
v SB
,
2014 (1) SACR 66
(SCA) at para [18]:
“
Evidence
that the STR profile of an accused person matches that of a sample
taken at the scene, or can be included therein, is circumstantial

evidence. The weight thereof depends on a number of factors. These
include:
(i)
The establishment of the chain evidence, ie that the respective
samples were properly taken and safeguarded until they
were tested in
the laboratory.
(ii)
The proper functioning of the machines and equipment used to produce
the electropherograms.
(iii)
The acceptability of the interpretation of the electropherograms.
(iv)
The probability of such a match or inclusion in the particular
circumstances.
(v)
The other evidence in the case.”
[126]
The
form of DNA analysis used in this matter is called STR (Short Tandem
Repeat) profiling. The unchallenged and undisputed evidence
given by
Ms Thomas, read with the affidavits received in terms of section 212
of the CPA which include an appendix (confirmed under
oath by Ms
Thomas) amplifying the science behind the process and the formal
admissions made, reveal the following:
126.1.
The
respective samples were properly taken and safeguarded until they
were tested in the laboratory – this relates to the
forensic
specimens taken from the complainants as well as the Buccal samples
taken from Mr Mabitsela and Mr Mkansi.
126.2.
There
is no suggestion in this case that the machines and equipment used in
this case were not functioning properly;
126.3.
Ms
Thomas correctly interpreted the results and such results were
correctly recorded in the section 212 of the CPA affidavits received

as evidence and marked as exhibits “R” to “U”.
The probability of the match or
inclusion
[127]
In
assessing the DNA evidence it should be borne in mind that if there
is a match or an inclusion, it means no more than that the
accused
person cannot be excluded. It is useful to quote paras [20] and [21]
of S v SB (supra) –
“
[20]
If the STR profile of an accused person in fact differs from the
profile retrieved from the sample taken at the scene, even
in respect
of only one allele, the accused person must be excluded as a source
of the crime- scene DNA. However, the converse is
not true. Because
only a limited number of STR loci are analysed, an STR profile cannot
identify a person. Therefore the weight
to be attached to evidence of
an STR profile match or inclusion in the first place depends on the
probability of such a match or
inclusion occurring in a particular
population. Without such evidence the STR profile match or inclusion
means no more than that
the accused person cannot be excluded as a
source of the crime-scene DNA.
[21]
If the profile in question may be found in many individuals, a match
between the profile of the accused person and the crime-scene
DNA
will have little or no probative value. This is of particular
importance where the crime-scene DNA is a mixture, which increases

the likelihood that the profiles of other members of the population
can be read into the mixture. On the other hand, an extremely
rare
profile will strongly point to the involvement of the accused person.
This essential component of DNA evidence is usually
presented in the
form of statistical analyses of a population database. ”
[128]
All
statistical calculations are based on accepted population genetics
theory and are utilised according to the specifications of
the
‘
National
Research Council Committee of Forensic DNA Analysis
’,
USA, 1996. The statistical calculations are processed by using the
National DNA Statistics Database for the four main population
groups
in the RSA, namely: Black, Caucasian, Coloured and Asian. The most
conservative occurrence of the DNA result in the four
population
groups is recorded in the section 212 of the CPA affidavits.
[129]
The
statistical analysis and results found to exist, were not challenged
or disputed.
The other evidence
[130]
The
incidents the complainants describe bear striking similarities. They
include:
130.1.
In
all but one of the incidents (counts 59 and 60), the assailants wore
balaclavas;
130.2.
In
all but one of the incidents (count 61), there were two assailants;
130.3.
In
all of the incidents referred to in para 130.2, the one assailant was
taller than the other;
130.4.
Of
the 13 incidents, 9 occurred either in the East Bank Park or in the
cemetery next to the Park, in Alexandra;
130.5.
Of
the 13 incidents, all occurred in Alexandra;
130.6.
In
all the incidents cellphones and money were demanded;
130.7.
In
all the incidents firearms were used;
130.8.
In
many incidents the one assailant would phone the other assailant once
he had contained his victims.
[131]
Mr
Mkansi lives very close to East Bank  Park. He can see it from
his home. He lives in Alexandra. Mr Mabitsela lives very
close to
East Bank Park. He lives in Alexandra. Mr Mkansi and Mr Mabitsela are
good friends.
[132]
Mr
Mkansi was traced with reference to cell phones emanating from him.
[133]
Mr
Mkansi denied any involvement in the crimes. His evidence did not
impress me at all. It contained numerous contradictions,
inconsistencies
and improbabilities. I refer to a few:
133.1.
During
his evidence in chief, he testified that during his first arrest the
police arrived searching for firearms and no more. He
had no inkling
that they were there because of a cell phone which had belonged to a
rape victim and was somehow being linked to
him. He testified that he
was completely oblivious to the fact that he was a suspect in a rape
investigation. This version he maintained
during cross-examination.
It was only after his case was re-opened and he looked at the phone,
that he conceded that the phone
had been discussed with him (not
shown to him) but then only for the limited purpose of establishing
whether he knew anything about
4 starter kits in relation to such
phone. He denied any knowledge of the starter kits. The police did
not probe this response according
to him. They were more concerned
about the firearms. The multiple rapes which had occurred in
Alexandra was given to a special
unit within the police force to
investigate. Ms Masuku was the officer in charge of this
investigation. It is inconceivable that
she would not have focused on
the cellphone and Mr Mkansi’s connection to the crime she was
investigating being the Alexandra
Balaclava Cemetery Serial Rapists
but have, instead, decided to focus on firearms only. The whole
purpose of confronting Mr Mkansi
was to establish whether he was one
of the Alexandra Balaclava Cemetery Serial Rapists. That she would
not have explored his connection
to the phone which she testified
came from a rape victim, is so preposterous that it can be rejected
without hesitation.
133.2.
A
number of things were not disputed when the witnesses testified. This
despite an express warning by the court that Mr Mkansi should
listen
very carefully to every word said by the witnesses and that he should
tell his legal representative if he differed from
their versions.
They include:
133.2.1.
When
Mr Mohale testified, Mr Mkansi did not dispute that Mr Mohale had
visited him during January of 2015. However, during his evidence
he
stated that it was on 29 May 2015 that Mr Mohale had visited him.
133.2.2.
It
was never put to Mr Mohale that he had given him firearms for safe
keeping;
133.2.3.
It
was never disputed that Mr Mkansi had called Mr Mohale to look at his
new bakkie;
133.2.4.
It
was never put to Mr Mohale that there were ill feelings between them
due to Mr Mohale’s sister passing away during 2011.
133.3.
A
number of things were put to witnesses which changed when Mr Mkansi
testified. This includes:
133.3.1.
When
Mr Mkansi’s girlfriend testified it was put to her that Mr
Mkansi had told her that he had bought the Blackberry phone
from a Mr
Malisela who works at a casino. During his evidence in chief he said
that he had not told her.
133.3.2.
Ms
Masuku had testified that during the second arrest, it was evident
that Mr Mkansi was preparing to leave Gauteng as all his electronic

equipment had been taken and his bags had been packed. It was put to
her that the police had made a big mess of his room when they
had
searched it and that his things had been placed in bags in order to
tidy up. During his evidence he stated that no bags had
been packed
and that his clothes had been put into a heap on his bed.
133.4.
Despite
living very close to the East Bank Park, he denied ever having
visited it. He also distanced himself from any knowledge
relating to
the Park. When probed he agreed he could see the rock climbing wall
and the fact that there was a cemetery next to
it. It is also strange
that, although he had been a friend of Mr Mabitsela’s since
1988, he could not tell the court which
one of them were taller. It
appears as though Mr Mkansi is reluctant to commit himself to
anything that might be incriminating.
133.5.
It is
highly improbable that Mr Mohale would just pitch up at the doorstep
of Mr Mkansi, having not seen him for months, and then
ask him to
look after firearms under circumstances where, as suggested by Mr
Mkansi, the family blamed him, Mr Mkansi, for the
death of Mr
Mohale’s sister – Mr Mkansi’s ex-wife -- who passed
away during January 2011. Mr Mohale’s version
is quite
evidently more probable ie that he had been called by Mr Mkansi to
come and look at his new bakkie and that Mr Mkansi
had then decided
to give Mr Mohale a phone.
[134] The court is conscious of the
caution heeded
in Ndwambi v The State
611/2013
[2015]
ZASCA 59
at para
[30]
-
“
It
is, however, trite that the fact that the accused is an
unsatisfactory - even a lying witness - does not necessarily justify

the conclusion of his guilt. Care must be exercised in not drawing an
inference of guilt merely because he was lying. Ultimately,
guilt is
about the inferences that, as a matter of logic, may be drawn.
Inference must carefully be distinguished from conjecture
or
speculation.”
APPROACH TO THE EVIDENCE
[135] In
S v Nyembe
,
2014 (1)
SACR 105
(GSJ) Van Oosten, J held as follows at para [8] –
“…
In
S
v S.
[2012]  ZASCA  85 the Supreme Court of Appeal held:
'A
court does not look at the evidence implicating the accused in
isolation to determine whether there is proof beyond reasonable
doubt
nor does it look at the exculpatory evidence in isolation to
determine whether it is reasonably possible that it might be
true.
The correct approach is set out in the following passage from
Mosephi
and Others v R
LAC (1980 – 1984) 57 at 59F – H:
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 guide
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 is no substitute for a
detailed and critical examination of each and every component in a
body of 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.”
[136]   The State’s
case rests on circumstantial evidence. Courts, where a case is based
on circumstantial evidence,
are guided when determining the issues,
by well-known principles of logic set out in the case of
R v Blom
1939 AD 188
at 202-203. These are that:
“
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference
cannot be drawn.
(2)
The proved facts should be such that they exclude every 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 ”.
[137]    Zulman AJA (as
he then was) in
S v Reddy & others,
1996 (2) SACR 1
(A) at
8 h - j said:
“
A
number of circumstances, each individually very slight, may so tally
with and confirm each other as to leave no room for doubt
of the fact
which they tend to establish…Not to speak of greater numbers,
even two articles of circumstantial evidence,
though each taken by
itself weigh but as a feather, join them together, you will find them
pressing on a delinquent with the weight
of a millstone”.
[138]  Wills on Circumstantial
Evidence, 7
th
ed. at 46 and 452-60 is quoted with approval
in
S v Reddy (supra )
at 9d:
“
That
network may be a mere gossamer thread, as light and as unsubstantial
as the air itself. It may vanish at a touch. It may be
that, strong
as it is in part, it leaves great gaps and rents through which the
accused is entitled to pass in safety. It may be
so close, so
stringent, so coherent in its texture that no efforts on the part of
the accused can break through. It may come to
nothing-on the other
hand it may be absolutely convincing…The law does not demand
that you should act upon certainties alone….In
our lives, in
our acts, in our thoughts we do not deal with certainties; we ought
to act upon just and reasonable convictions founded
upon just and
reasonable grounds….The law asks for no more and the law
demands no less”.
[139]   The State must prove
the guilt of an accused beyond reasonable doubt. If the accused’s
version is reasonably
possibly true he must be given the benefit of
the doubt and be acquitted. The accused’s version should not be
rejected only
because it is improbable. The Court, however, is
entitled to reject such version if it is evident that the version is
improbable
and beyond doubt false. See
R v Difford
1937 AD 370
at 373;
S v Van der Myden
1999 (1) SACR 447
(W) at 448 and
S
v V
2000 (1) SACR 453
(SCA) at 455A-C.
[140]    Mr Mkansi’s
DNA was found in the most intimate parts of 9 complainants. He has no
explanation for
this. He was unable to furnish any explanation
whatsoever for the presence of his DNA found within the bodies of 9
complainants
who, on his version, he does not know at all and who do
not know him. The court is entitled to, and indeed does, have regard
to
Mr Mkansi’s inability to provide an explanation for this.
See
Mudau v The State
, [2012]  ZASCA 56 at para [11].
[141]   The complainants
testified there were two assailants. One was tall and one was short.
[142]   I accept the
evidence of Ms Masuka that Mr Mkansi is taller than Mr Mabitsela.
[143]   The following
complainants testified that they were raped by the tall assailant and
Mr Mkansi’s DNA is matched
or can be read into their DNA
samples:
143.1.
Ms M.
(Count 45)
143.2.
Ms T.
(Count 50)
143.3.
Ms
M.(b) (Count 52)
143.4.
Ms M.
(Count 54)
143.5.
Ms M.
(Count 59)
143.6.
Ms S.
(Count 62)
143.7.
Ms K.
(Count 69)
[144]   Formal admissions
were made about the following complainant as well as that there were
two assailants and Mr Mkansi’s
DNA is matched or can be read
into her DNA sample: Ms R. (Count 56)
[145]   Formal admissions
were made about the following complainant as well as that there was
one assailant and Mr Mkansi’s
DNA is matched or can be read
into her DNA sample: Ms M. (Count 61).
[146]   The following
complainants testified that they were raped by both the tall and
short assailants and Mr Mabitsela’s
DNA is matched or can be
read into their DNA samples:
146.1.
Ms M.
(Count 25)
146.2.
Ms M.
(Count 59)
146.3.
Ms P.
(Count 38)
[147]   Formal admissions
were made about the following complainants as well as that there were
two assailants and Mr
Mabitsela’s DNA is matched or can be read
into their DNA samples:
146.4.
Ms M.
(Count 35)
146.5.
Ms M.
(Count 41)
[148]   Of considerable
significance in this case is the fact that Mr Mkansi
and
Mr
Mabitsela’s DNA samples could be read into the DNA Vulva swab
obtained from Ms M. (count 59) who had testified that she
had been
raped by both the short and the tall assailant. Although the most
conservative occurrence for the DNA result for all the
possible
contributors to the mixture DNA result is only 1 in 12 thousand, it
is the type of evidence referred to by Zulman AJA
in
S v Reddy
(
supra) which ‘taken by itself weigh but as a feather, join
them together, you will find them pressing on a delinquent with
the
weight of a mill-stone’
[149]   Upon a consideration
of the totality of the facts and circumstances of this matter which
includes, the DNA results
obtained, the absence of an explanation by
Mr Mkansi for his DNA being present in 9 of the victims, the
statistical probabilities,
that in all but one of the incidents
(counts 59 and 60), the assailants wore balaclavas, that in all but
one of the incidents (count
61), there were two assailants; that in
all of the incidents where
viva voce
evidence had been led,
the one assailant was taller than the other; that of the 13 incidents
9 occurred either in the East Bank
Park or in the cemetery next to
the Park; that all of the incidents occurred in Alexandra; that in
all the incidents cellphones
and money were demanded; that in all the
incidents firearms were used; that in many incidents the one
assailant would phone the
other assailant once he had contained his
victims; that Mr Mkansi lives very close to East Bank Park, that Mr
Mabitsela lives very
close to East Bank Park; that Mr Mkansi and Mr
Mabitsela are good friends and that Mr Mkansi was traced through cell
phones which
were linked to the crimes, I find that the state has
proved beyond a reasonable doubt that Mr Mkansi was the perpetrator
in counts
45, 47, 48, 50, 52, 25, 35, 54, 56, 59, 38, 62, 41, 43, 61
and 69 (being the rape and coM.lled rape counts).  I also find
him guilty of all the robbery with aggravating circumstances counts.
[150]   I should make it
express that in all the cases where the DNA evidence links the
victims to Mr Mabitsela (the short
assailant as he has come to be
known in these proceedings) i.e. the complainants mentioned in counts
25, 35, 38 and 41, I find
that the only reasonable inference to draw
from the facts and circumstances is, that the other assailant was Mr
Mkansi. Also, there
is no DNA evidence linking either assailant to Ms
N. (count 43). Mr Mathuvhine (Ms N.’s brother) testified and
explained
how 2 gun wielding, balaclava covered men, the one tall the
other short, had accosted them. The formal admissions made in respect

of the victims referred to in counts 41 and 43 leads to only one
reasonable inference and that is that Mr Mkansi was the perpetrator

in respect of count 43.
[151]   In so far as it is
necessary to say so expressly, I find that Mr Mkansi’s
testimony insofar as it conflicts
with that presented on behalf of
the state, is rejected as false beyond a reasonable doubt.
[152]   In respect of counts
64 and 66, the victims testified that they were not raped by the tall
man but by the short
man. Mr Mkansi is accordingly acquitted on these
two charges.
[153]   In the result I make
the following order:
153.1.
Mr
Mkansi is found guilty on counts 25, 35, 38, 41, 43, 45, 47, 48, 50,
52, 54, 56, 59, 61, 62 and 69, as charged.
153.2.
Mr
Mkansi is found guilty on counts 27, 36, 39, 49, 51, 53, 55, 68 and
70, as charged.
153.3.
Mr
Mkansi is found guilty on count 44 of two phones and count 60 of two
phones and R440 in cash.
153.4.
Mr
Mkansi is acquitted on counts 64 and 66.
___________________________
I
OPPERMAN
Judge
of the High Court
Gauteng
Division, Johannesburg
Heard:
3 February 2017 to 27 February 2017
Judgment
delivered: 7 March 2017
Appearances:
The
State: Adv M Bayat
For
the Accused: Adv Mabapha