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[2017] ZAGPJHC 189
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S v Mabula (A1895/15) [2017] ZAGPJHC 189 (29 March 2017)

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Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE NO:
A1895/15
DPP REF NO:
10/2/11/1-191/15
Not reportable
Not of interest to other judges
Revised.
In the matter
between:
THE STATE
and
MABULA:
TEBOGO
WILLIAM
Accused
JUDGMENT
MATSHITSE
AJ
INTRODUCTION
[1]
Mr
Mabula  has been arraigned on one (1) count of murder, four (4)
counts of assault with intent to do grievous bodily harm,
one (1)
count of escaping, five (5) counts of kidnapping,  six (6)
counts of rape, five (5) counts of robbery with aggravating

circumstances and one(1) count of attempted murder. He pleaded not
guilty and tendered no plea explanation as envisaged in terms
of
Section 115 of Criminal Procedure Act 51 of 1977 (“
CPA
”).
The minimum sentences applicable in terms of Sections 51(1), 51(2)
and 51(2) of Criminal Law Amendment Procedure Act 105
of 1997 (“
The
Criminal Law Amendment Act
”)
were explained.
[2]
In
respect of count 1, the State alleges that Mr Mabula killed
Phiwayinkosi Innocent Mthethwa and the said offence falls within
the
ambit of Section 51(1) of the Criminal Law Amendment.
[3]
In
respect of 6 (six) counts (8, 9, 13, 18 and 20) the State alleges
that Mr Mabula 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 six (6) offences all fall within the
ambit of Section 51(1) of the Criminal Law Amendment
Act.
[4]
In
respect of count 22, the State alleges that Mr Mabula attempted to
kill one Ms K K S. The State alleges that this offence falls
within
the ambit of Section 51(2) (c) of the Criminal Law Amendment Act.
[5]
In
respect of five (5) counts (10, 11, 12, 16 and 17) the State alleges
that Mr Mabula committed robbery with aggravating circumstances
and
that these five (5) counts fall within the ambit of Section 51(2) of
the Criminal Law Amendment Act.
CHARGES AGAINST MR MABULA
A.
Count
1
[6]
The
State alleges that on or about the 16
th
March 2012 and at or near Ramaphosa Extension 2, in the district of
Boksburg, Mr Mabula did unlawfully and intentionally kill
Phiwayinkosi Innocent Mthethwa a male person.
B.
Counts
2, 3 and 4
[7]
The
State alleges that on or about the 28
th
April 2012 and at or near Boksburg Police Station in the district of
Boksburg, Mr Mabula did unlawfully and intentionally assault
Kwena
Bertha Nailana and Lebopo Mollo with intent to cause both of them
grievous bodily harm.  The State further alleges that
on such
date, and place Mr Mabula being a prisoner, did unlawfully escape
from lawful custody.
C.
Counts
5, 6, 7 8, 9, 10 and 11
[8]
The
State alleges that on or about the 09
th
July 2012 and at or near Rietfontein, Poortjie, in the district of
Vereeniging, Mr Mabula did unlawfully and intentionally commit
an act
of sexual penetration with Ms G H M. (14 years old minor child at the
time) without her consent. The State further alleges
that on such
date, Mr Mabula again unlawfully and intentionally commit an act of
sexual penetration with Ms G.H.M (14 year minor
child) without her
consent. The State further alleges that on such a date Mr Mabula did
unlawfully and intentionally deprive both
Ms G H M and M S their
freedom of movement by taking them to a plot and keeping them there
without their consent, The State further
alleges that Mr Mabula did
unlawfully and intentionally assault Ms G.H.M and/or M S  and
did then and there and with force
and violence take from them two
pairs of trousers and cellular phone being their property, with
aggravating circumstances as described
in Section 1 of the CPA being
present. The State further alleges that Mr Mabula did unlawfully and
intentionally assault M S with
intent to cause him grievous bodily
harm.
D.
Counts
12 and 13
[9]
The
State alleges that on or about the 27
th
January 2015 and at or near Comet Village, in the district of
Boksburg, Mr Mabula did unlawfully and intentionally commit an act
of
sexual penetration with Ms C.L.E.C. without her consent. The State
further alleges that on such date, Mr Mabula did unlawfully
and
intentionally assault Ms C.L.E.C and did then and there and with
force and violence take from her a cellular phone, a pair
of Nike
running shoes and a cash amount of R100.00 being her property, with
aggravating circumstances as described in Section 1
of the CPA being
present.
E.
Counts
14, 16, 16, 17, 18, 19 and 20
[10]
The
State alleges that on or about the 11 February 2015 and at or near
Reiger Park, in the district of Boksburg, Mr Mabula did unlawfully

and intentionally commit two acts of sexual penetration with Ms S.R.
M. without her consent. Counts 18 and 20). The State further
alleges
that on such a date and place, Mr Mabula did unlawfully and
intentionally commit an act of sexual penetration with Ms Q.
M.
without her consent, (count 19). The State further alleges that on
such date and place, Mr Mabula did unlawfully and intentionally
and
with force and violence take from both Ms R.S M and/or Ms Q. M.
Thirty five Rand (R35.00) cash and two cell phones being their

property, with aggravating circumstances as described in Section 1 of
the CPA being present. The State further alleges that on
such a date
and place, Mr Mabula did unlawfully and intentionally deprive both Ms
R S and Ms Q.M. of their freedom of movement
by taking them to a plot
and keeping them there without their consent.
F.
Counts
21, 22 and 23
[11]
The
State alleges that on or about the 25 February 2015 and at or near
Alexandra in the district of Alexandra, Mr Mabula did unlawfully
and
intentionally deprive Ms K K S (child of 2 years at the time) of her
freedom of movement by taking her to a shack. The State
further
alleges that Mr Mabula did unlawfully and intentionally attempt to
kill Ms K K S a female person. The State further alleges
that Mr
Mabula did unlawfully and intentionally assault Ms M P S with intent
to cause her grievous bodily harm.
[12]
Accused
pleaded not guilty to all charges with the exception of Count 22
wherein he pleaded guilty to the said charge. He exercised
his right
to remain silent. He did not give any plea explanation. Regarding
count 22 he submitted his plea in terms of Section
112 of the
Criminal Procedure Act at the end of the State case, which plea was
accepted by the State.
FORMAL
ADMISSIONS
[13]
During
the course of the trial formal admissions in terms of Section 220 of
the CPA, were made which admissions were received and
marked under
exhibit “A” which incorporated exhibits “B”
to/and “N. Exhibit “A” recorded
that Mr Mabula
admitted the correctness of the facts and findings contained in all
the exhibits marked exhibits “A”
to “N” which
included 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 “E”, “H”,
“K” and “N”.
[14]
Exhibit
“B” referred to the centralisation of certificate issued
by the National Director of Public Prosecution Adv
S K Abrahams,
directing that all the above mentioned offences against accused be
heard in this court;
[15]
Exhibit
“C” referred to post mortem report, chain statement and
declarations of death of deceased referred to in count
1 ;
[16]
Exhibit
“D” referred to Photo Album -1 which are the
pictures/photos relating to count 1(depicting the deceased with
stab
wounds);
[17]
Exhibit
“F” referred to photo album -2, Orange Farms Cas
498/07/2012 which are the pictures/ photos relating to count
5 to 11,
which depicted the area at Poortjie where the incident in the counts
5 to 11 took place;
[18]
Exhibit
“G” referred to birth certificate of Ms GHM, counts 5 to
11;
[19]
Exhibit
“K” referred to photo album -3, which are the pictures/
photos relating to count 13 to 20, which depicted the
area at Reiger
Park where the incident in the counts 13 to 20 took place”;
[20]
Exhibit
“M” referred to Assessment report of K K S (Minor Child).
[21]
The
admissions thus comprised,
inter
alia
,
the medical examinations of the complainants referred to in the rape
charges; 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.
ISSUES
IN DISPUTE
[22]
The
sole issue for determination by this court is the identity of the
perpetrator of the crimes that Mr Mabula is charged with.
The fact
that the crimes were committed has not been disputed and can be
accepted as common cause.
THE
EVIDENCE
[23]
This
court will summarise the evidence chronologically with reference to
the date of the perpetration of the alleged offences.
16
March 2012 (Count 1)
[24]
In
this count the State evidence is to the effect that on this day at
around 11 pm the deceased, Phiwayinkosi Innocent Mthethwa,
and the
three Khumalo brothers,  the State witnesses, being Samukeliso
Khumalo, Vincent Melusi Khumalo and Phakamani Moses
Khumalo were at
Ramaphosa squatter camp Extension 2, inside a tavern, called Mlundi’s
tavern.
[25]
While
there the deceased spoke with Samukeliso Khumalo about a girl,
thereafter they proceeded outside to talk, while outside, the
accused
and one Siza, approached them, Siza scratched Samukeliso with a knife
on his shoulder, and the accused was busy stabbing
the deceased. He
saw the accused stabbing the deceased on his chest on the front and
somewhere at back of his head.
[26]
Samukeliso
then run inside the tavern to inform his brothers that deceased was
being stabbed. Upon their exist the Khumalo brothers,
Vincent and
Phakamani saw the accused kicking the deceased on his legs and the
deceased fell down and he continued to kick him
on his body.
[27]
The
deceased then stood up from the ground tried going inside the tavern,
he fell, he stood up then turned around going to where
they were
residing, which was next to the tavern. He hit the fence/ gate then
fell on the ground and that is where he died.
[28]
Mr
Mbhkeseni Nene
testified
to the effect that his house is next door to the tavern, he was sited
around afire inside his yard, when he saw people
fighting, he saw
Mashabutla, accused before court, stabbing the deceased. Then the
deceased tried going to his home he hit the
fence fell down.
[29]
He
approach where the fight was going on. He met up with accused, asked
him does he see what he has done. Accused then run down
the passage.
[30]
The
Khumalo’s tried chasing him and they could not find him. They
all agreed that the source of light at that tavern was globe
which
received its energy from a generator. The whole area of Ramaphosa
squatter camp does not have any electricity.
[31]
During
their cross examination they were referred to their statements that
they have made at the police, and that the contents of
those
statements where in conflict to what they were testifying. Among
others it has been written that they have heard from someone
that it
was Mashabutla who had stabbed the deceased it meant that they did
not personally witness the stabbing.
[32]
They
all confirmed that they knew accused by the name of Mashabutla, and
they only knew him by sight, they knew he was residing
somewhere at
Ramaphosa squatter camp, but they did not exactly know where, they
also knew he was a friend with one Siza. They denied
that there was a
game of dice which was been played next or at the tavern. There is no
space to can play a game of dice there;
secondly a game of dice is
not allowed at the tavern. But there is a place, which is far from
the tavern where the game of dice
is usually played.
[33]
Dr
Lydia Zanele Mandlazisa
in
short testified that she did a post mortem upon the deceased, and she
discovered that the deceased had various injuries, like
lacerations,
on his body and three serious stabbed wounds,
(a)
6.6cm
Linear penetrating incised wound over the back head at junction head
and neck,
(b)
2,5cm
x 1,2cm penetrating incised wound over left upper back, 10cm from
posterior midline, 6cm from tip of left shoulder and 147cm
from the
sole of left foot
(c)
4,5cm
ox 2cm penetrating incised wound left anterior chest, 3cm from
anterior midline and 1ocm from tip of left shoulder
[34]
The
cause of death she determined to be Multiple Sharp force injuries,
she is the one who completed Exhibit “C” being
post
mortem report.
[35]
Accused
testimony in regard this count is to the effect that he was playing a
game of dice around the back of the tavern, when they
heard a noise
and saw people fighting, he confirmed that the place was illuminated
by a globe which got its electricity from a
generator at the tavern,
he came to look as to who were fighting then his girlfriend told him
they should leave, they left, on
their way they meet up with a
certain unknown gentleman to him, who informed him that the Zulus are
looking for him, and from the
tone of his voice it was clear that the
said people where in a fighting mood.
[36]
He
took the key of that gentleman’s house and went and locked
himself in his house. He requested his girlfriend to go back
to the
tavern, where the fight was held, and to go and check what was going
on. His wife then called him and informed him that
there is a
gentleman who has died and it is alleged that he is the one who
killed him or stabbed him.
[37]
He
then went out of that gentleman’s house and proceeded to where
he was residing. He left with that unknown gentleman’s
house
keys and he also left his “wife” there.
28 April 2012 (Counts 2-4)
[38]
In
these counts the State evidence is to the effect that on the 27
th
April 2012 accused was arrested, in connection with the above
mentioned charge of murder in count 1, by
Constable
Phuthi Ephraim Mojela
and he was detained at Boksburg Police Stations holding cells. On the
28
th
April 2012 at night accused escaped from the Boksburg Police Stations
holding cells.
[39]
Captain
Fusi Thomas Miya
testified
that on the 28
th
April 2012, at night, he was on duty as Relief Commander. On that day
he received a request from Warrant Officer Mollo and Constable

Nailane to the effect that they want to go and see a suspect at the
cells. He was charged with a petty crime of theft to the value
of
R10.99.
[40]
After
5 minutes he saw W/O Mollo coming and informed him that suspects have
escaped. They found the main doors inside the cells
been open and
Constable Nailane was locked inside one of the holding cells. He
observed that Constable Nailane was terrified and
shivering and
looking like someone who wanted to cry.
[41]
He
did a roll call and discovered that accused was among those who had
escaped. According to him the distance between the holding
cells and
the charge office is about 25 meters. If someone screams from the
cells you could be able to can hear him while one is
in the charge
office. There is a siren down at the holding cells.
[42]
Sergeant
Nailane
testified
that on this day she received an instructions from Captain Miya to go
and verify a suspect address who was charged with
an offence of theft
of and item which was valued at R10.99. She was supposed to verify
his address and thereafter release him on
warning. She then requested
W/O Mollo to accompany her down to the holding cells. They opened the
main door of the cells, entered
locked both doors, which were steel
door and butler/security doors. They got inside the cells, opened one
of the steel doors of
the cells, but the butler/ security door was
locked. They called Joseph Ramosiwa Sono who came stand at the open
door, but butler
door was still locked then W/O Mollo opened the door
in order to let him out.
[43]
Then
someone came from nowhere pushed her aside and grabbed W/O Mollo, and
they (W/O Mollo and that other person) started fighting
for the keys
to the cells, then one of the detained suspects came to her grabbed
her by her neck strangled (throttled) her and
closed her mouth, she
was thrown inside one of the holding cells, she could not properly
breath she then lost consciousness. After
about 5 to 10 minutes she
woke up and found the doors to the main cells been unlocked.  She
was found inside the main cells.
[44]
The
never went to see any doctor. She had a swollen chick. At the holding
cells, the where two sections, one which was holding (housing)

suspects with serious crimes, like robbery aggravating and/or murder.
The other section was housing suspects who have committed
petty
crimes and female cells. Joseph Ramasiwa Sono was detained with
offenders who have committed serious offences. She did not
know why
he was detained with suspects who were detained for serious offence.
She estimated that the distance from charge
office (CSC) to the
holding cells was about 60 meters.
[45]
W/O
Lebopo Piet Mollo
testified
that on that day of the 28
th
April 2012 at around 21h20, he was on duty as charge office
commander, Sgt Nailane came to him requesting his assistance by going

to the holding cells, as she wanted a suspect by the name of Joseph
Ramasiwa Sono, the purpose was that she wanted to go and verify
his
address. They entered the main cell area, by first opening the steel
door thereafter they opened the butler door.
[46]
Inside
the holding cells, there is another cell with small cells inside. On
that day he was also in charge of the cells. He went
inside cell,
opened the steel door and called Joseph Sono, as he was standing at
the door, he then unlocked the security/butler
door, in order to
allow him, Sono, to get out.
[47]
As he
was still waiting for Sono to come out, one of the suspects then came
hit him with something on his hand they then started
fighting for the
cell’s keys. One of the suspects then went to Sgt Nailane,
grabbed her by the neck, throttled her and threw
her inside one of
the small holding cells. The doors to the small cells cannot be
opened inside, once the door is closed, not even
locked, you will not
be able to can open same from inside.
[48]
He
was then kicked, that suspect who throttled Sgt Nalane, came and
joined the one who was fighting with him for the keys in fighting

him, he was hit with fist, they twisted his hand behind his back,
placed against the wall and one managed get the keys from his
hand
opened the door, and thereafter came to join the one he was holding,
they struggled with him up to the door, one went outside,
the one
outside kicked him on his leg and they managed to escape. Thereafter
he went to call Captain Miya informed him that suspects
have over
powered them and they have escaped. Upon their return to the cell
they found Sgt Nailane inside one of the small cells,
she couldn’t
open the cell while she was inside it.
[49]
He
did have an interaction with one of the suspected that escaped that
is Pitso Kofa, he wanted him to assist by calling his family
members
to bring him some clothes since he was only wearing bvd (under
ware).This was during the time he was working on day shift.
He
has never meet accused and he also failed to can point him out from
the identity parade. The distance from the charge office
to the cells
it is a distance of about 38.390 meters.
[50]
Sgt
Khutso Naphtail Lefophane
,
testified that he was the investigation officer on the charge of
escaping. He managed to trace Mr  Kofa at one of the hospitals,

he interviewed Mr Kofa who informed him that he did not escape from
lawful custody, since he had an arrangement with W/O Mollo
that he
would let him go upon payment of an amount R5000.00, of which he made
it sure that he got that payment.
[51]
On
the Night in question W/O Mollo let him free, he did not escape from
custody. He did not get any confirmation or verification
that in deed
he had paid the said amount to W/O Mollo.
[52]
Accused
testimony in these counts is that he meet up with W/O Mollo, who said
to him that he can be able to assist him, by letting
him go home, but
he must organise an amount of R5000.00. He spoke to his friends, and
they did manage to arrange the said payment
that is why after the
weekend he was let out and told he is free he can leave.
09
th
July 2012(Counts 5-11)
[53]
In
these counts the State evidence is to the effect that on this day
around 3 pm, M S and Ms GHM, who was 14 years old at that time,
were
standing next to ZCC church at around Poortjie in the district of
Vereeniging. Then three males approached them, one
held M with his
waist, while the one who was wearing a black jacket then wrapped one
of his hands around her, hugging her closer
to him, then showed her a
fire arm which was on his waist. The one with M then showed him a
knife he was carrying.
[54]
They
walked in pairs in front it was M second was Ms GHM and the person
who was wearing a black jacket at the end, he was walking
alone. On
the way the person who was with Ms GHM was talking to her nicely
among others he asked if she was a virgin or not, she
confirmed that
yes she is still a virgin, but she testified that she then lied to
him by saying that there is ceremony which is
about to be held and
they will be checking if she is still a virgin or not. She said she
was doing this that perhaps he would not
rape her. The one who was
walking with M had cruel eyes. He even told Ms GHM that she should
not look at him.
[55]
They
walked for quite some distance, passed some trees and came to a ditch
or farrow. They then ordered them to undress, of which
they did, but
M only pulled off his trousers. Thereafter they told M to have sexual
intercourse with Ms GHM. M refused to do, notwithstanding
that Ms GHM
said he must do that.
[56]
Upon
his refusal, he was hit with firearm on his back of the head. He was
tied with cable ties on his hands and legs ordered to
lie down facing
the other direction.
[57]
Then
the person who walked with M ordered Ms GHM to put her hand (inside)
on her vagina of which she did, then he took of his trousers
came and
inserted his penis inside her vagina had sexual intercourse with her,
during the ordeal he told her to smile and to kiss
him, of which Ms
GHM complied with. She ask if she would not get pregnant or not, of
which she was informed no, then that person
when he was about to
ejaculate he took out his penis from her vagina and ordered her to
watch his penis as he was ejaculating.
He ejaculated outside her
vagina.
[58]
Thereafter
that person who walked with her also took off his pants, trousers, he
was calling Ms GHM his wife, she also asked what
if she should get
pregnant, of which he replied that she would never get pregnant. He
asked her to kiss him. Then he too came inserted
his penis inside her
vagina, once he was done, he stood up, and Ms GHM saw that he had
blood on his front also on his trousers,
as he had not completely
taken off his trousers.
[59]
Once
they were done, they then pulled off M’s trousers from his
body, the person who walked with Ms GHM took his trousers
out and put
on M’s one. They then took Ms GHM tied her also on both hands
and feet, put her on top of M who was then ordered
to lie on his
stomach, but all along during all the time that Ms GHM was been raped
he was lying on his side facing the opposite
direction.
[60]
Their
assailants left them there. They ultimately managed to untie
themselves; their assailants had left with their clothes. Prior
to
tying M, they had taken his T-shirt closed his mouth with it and
wrapped, tied around back of his head. Then he give it to Ms
GHM to
wear it as she was completely naked. They then left that farrow at
that time it was already dark. They ultimately found
some help around
there and opened a case against their assailants.
[61]
They
were able to can identify accused as one of their assailant, he was
the one who was carrying a fire arm and the one who was
walking with
Ms GHM and talking to her nicely.
[62]
On
the 21 January 2016 Ms GHM attended an identity parade and it is
where he identified accused from the line-up. Ms GHM also went
to the
hospital wherein she was examined and some samples taken from her
vagina. She was injured inside her vagina.
[63]
Dr
Kalain
testified
to the effect that on the 10 July 2012 at around 00:15 he examined Ms
GHM and took some samples from her private part,
at the vulva,
vestibula. Recorded some injuries on Exhibit “E” being
the J88 relating to Ms GHM. Her account to Dr
Kalain accords
substantially with the version given in court. It appears from the
J88 that prior to this date, Ms GHM had not ever
had consensual
intercourse and was in fact a virgin. Dr Kalain recorded the
following injuries, urethral office swollen, labia
minora: small tear
on the upper outer surface on the left, posterior fouchette tears:
deep lean extending to the perineum and fossa
navicalaris at 6
o’clock the Hymen severely swollen multiple deep tears
diffidently bruised. Perinum tear superiorly at 12
o’clock from
the posterior fouchette, smaller superficial tear just below. He
recorded the following “
multiple,
severe, genital injuries compatible with forceful penetration
”.
[64]
Forensic
specimens were taken from Ms GHM and sealed with seal number
10D1AC7780, which was handed over to Warrant Officer Albertus
Pelser.
[65]
W/O
Albertus Pelser
confirmed
that he did receive the crime kit which was already sealed, he kept
same in the safe up until he give it over to the investigating

officer. He also accompanied Ms GHM and a photographer back at the
scene of the crime. They took pictures as compiled on the exhibit
“F”
photo album -2.
[66]
The
investigating officer,
Edwin
Hlazana,
confirmed that he received the sealed crime kit with seal number
10D1AC7780 from W/O Pelser, he kept it in the locked steel cabinet
up
until the time he delivered it at the Forensic Science Laboratory
(FSL) at Pretoria on the 13 July 2012, still sealed.
[67]
Accused
version in this count is to the effect that he does not know anything
about the said incident; he denies that he was in
the company of
anyone who robbed and raped the complaints. On the alleged date he
was in custody at Modderbee prison as an awaiting
prisoner on a
charge of business robbery.
[68]
The
State called
Sgt
Nkabinde
from Modderbee prison to come and testify with regard to the
detention of accused during this period. According to Modderbee
record
the only time that accused was detained at Modderbee prison
was on the 13 December 2010 up until the 21 July 2011, when he left

to court and he never returned back.
[69]
Accused
then indicated to Mr Nkabinde that during that time he was detained
under the name of Thabo Moloi. All the names Thabo Moloi
which were
found in the records of Modderbee prison did not reflect accused.
27
January 2015 (Counts 12 and 13)
[70]
In
these counts the State evidence is to the effect that on this day at
around 08h00 Ms C.L.E.C got off from the Oos Rand train
station on
her way to work. As she was walking on a passage he felt someone
taping her behind and telling her that she should not
make any
noise.  He saw that person holding an old firearm. She then
tried turning around grapping that person with his clothes
around his
neck. Then that person hit her on the head, she started bleeding.
[71]
That
person then started caressing her body, with one hand he unbuckled
her belt trouser, pulled her trouser and under wear down
up to her
knees. He also undress put his trouser up to his knees. She bended
her knees and that person then inserted his penis
inside her vagina
from behind.  At one stage she ended up going down on her
stomach. Once that person was down raping her,
he searched his bag
took out the R100.00 she had, she had a lunch box which was in a
plastic which was also was inside her bag.
That person then out that
plastic inserted her running shoes, Nike, inside that plastic bag.
He also took her cell phone.
He ordered her not to look at him,
but during the time she attempted to grab him by his collar and
during the time he was searching
his bag, she was looking at him and
he managed to see that it was the accused before court.
[72]
From
there she went to the police station and she was taken to hospital,
Bertha Gxowa Hospital, wherein she was seen by a nurse
who did some
examination on her and also took some samples from her private part.
[73]
Ms
Mosima Rainy Radapa
testified that she is professional nurse working at Bertha Gxowa
Hospital on this day she was on duty and she examined a patient
by
the name of Ms C.L.EC, she is the one who completed Exhibit “H”
being J88, she discovered that the patient had a
laceration on the
right side neck which was about 1cm not deep but superficial, which
was in keeping with been physically assaulted
with hard sharp object
by force.
[74]
Upon
gynaecological examination of Ms C.L.E.C she did not observe any
injuries on her, but she noted tears on the posterior fourchette.

Forensic specimens were taken from Ms C. L E.C and was sealed with
seal number 13D1AE 0477, which was handed over to Warrant Officer
M J
Bopape.
[75]
Captain
Bopape
came
and testified that he did receive a sealed crime kit with seal number
13D1AE0477, kept same in his steel cabinet up until it
was delivered
at Forensic Science Laboratories at Pretoria still sealed on the 04
February 2015.
11
February 2015 (Count 14-20)
[76]
On
the above mentioned date at around 2pm Ms Q.M and Ms S.R.M alighted
from a train at Oos Rand train station. They were on their
way to
school. As they were walking they observed a gentleman walking in
front of them, but later they did not see him, but upon
reaching a
certain corner they found him there he then pointed them with
firearm. He took their bags search same he took from Ms
Q.M two cell
phones and amount of R10.00 and from Ms S.R.M he took an amount of
R25.00. Thereafter he instructed them to walk into
the bush and they
reach a trench. He then took off their shoe laces tied each of them
on his hands and legs. Thereafter he ordered
Ms Q.M to lie down
facing down that is with her stomach. He then loosened up Ms S.R.M
trousers pulled it down together with her
panty up to her knees, then
ordered her to lie on top of Ms Q.M.
[77]
Before
he raped Ms S.R.M he ask them if they are aware of a certain girl who
was from their school who got shot, he said he had
to shot her as she
was not cooperating with his instructions.
[78]
He
then took out his penis inserted it inside the vagina of on Ms S.R.M,
during this ordeal Ms S.R.M was silently crying not screaming.
Once
he was down raping her, he then assisted Ms S.R.M to stand up and
ordered her to lie down like Ms Q.M was laying. Then tried
inserting
his penis inside Ms Q.M vagina, but he was unable to penetrate her,
since he did not have an erection, thereafter he
stood up, inserted
his finger inside Ms Q.M’s vagina, while he was doing that he
was telling them why he is doing that, he
was raised by his
step-father and he was not properly raised. He was in custody and
when he came out of prison he found that his
girlfriend was
impregnated by another boy. That is why he hates people and that is
why he is doing this to them.
[79]
He
then realised that he had an erection he then penetrated Ms Q.M once
he was done he stood up. Then covered them with their school
bags and
he left them there. After 15 minutes they untied themselves.
Continued to their school. At the gate they informed the
security
personnel what had just happened to them. They were taken to the
school principal’s office. At one stage Ms S.R.M
fainted. She
gained conscious, police were called and thereafter they were taken
to hospital, at Bertha Gxowa Hospital. They were
examined by Dr
Mhlangeni. The person who had done all this was accused before court,
they were able to recognise him because at
the time he was searching
their bags he was standing in front of them, at the trench they
manage to see him when he was tying them
with shoe laces and also at
the time he was changing their position when he was raping them.
[80]
Dr
Mhlangeni
testified
that she completed the J88 exhibits  “J and K”
Exhibit in both exhibits she noted on general examination
of both Ms
Q.M and Ms S.R.M that they had linear bruises, (fresh) on both wrist
left, right maroon in colour encircling the wrist.
On the
gynaecological examination of both ladies she noted in respect of Ms
S.R.M (Exhibit “J”) that Labia minora:
fresh tear on
Renner aspect at 8 o’clock position, Fossa navicularis: fresh
tears at 6 o’clock position. Vagina captious
whitish discharge
present (semen). She collected samples from her vulva, perineum and
vagina sealed same in an evidence bag number
13D1AE0647. She
concluded that injuries are consistent with recent forceful
penetration of the vagina.
[81]
In
respect of Ms Q.M, exhibit “K” she noted vagina: blood in
vagina, tears in the inner vaginal wall at 3 and 9 o’clock,
and
at perineum: tear (fresh) at 9 o’clock. She collected samples
and sealed same inside the evidence bag number 10D1AE 4167.
[82]
In
both instances she concluded that Injuries are consistent with recent
vaginal forced penetration. She handed both sealed crime
kits to W/O
L J Monyele.
[83]
Warrant
Monyele
testified
that he received both sealed crime kits number 13D1AE0647 and 10D1AE
4167 kept them in the steel cabinet in his office
and registered same
in the SAP 13. Thereafter on the 16 February 2015 delivered both
sealed crime kits to the Forensic Science
Laboratories at Pretoria.
[84]
Regarding
registering the exhibit in the SAP 13 books it is not necessary as
long as the exhibit is kept in a secure safe place.
[85]
Accused
evidence in this counts is a bare denials, he has never forcefully
taken the two ladies to any bushes and or raped them
he does not have
any knowledge of such acts.
23
February 2015 (Count 21- 23)
[86]
In
Count 21 the State led the evidence of a single witness, Ms Simangelo
Mathebula, who testified to the effect that she knows the
mother of
the child. She was residing with them, mother and child, in one
house. She knew accused as the boyfriend of the child’s
mother.
But he, accused was not the father of the child. The father of the
child was M K.
[87]
On
the day in question accused came looking for the child’s mother
at their place, he did not find her, he then said he is
going to kill
their child. He came later with the child who was wet and he tried
giving her the child, she refused taking her,
ask him to put the
child on a sofa, of which he did, she then went upstairs to go and
collect a blanket to wrap the child with
it.
[88]
Accused
then chased both child’s mother and father with stones. When he
could not find them he then came took the child from
the sofa and
told her, she must tell them that he is going to kill the child. He
grabbed the child with her collar, raised his
arm in a stepping
position but she reprimanded him, he then grabbed the child and run
away with her. According to her the mother
of the child never came
back during that night.
[89]
Regarding
count 22 accused pleaded guilty to the said count and presented a
statement in terms of section 112 of the Criminal Procedure
Act. He
admitted that he attempted killing his child by cutting her on her
neck with a knife and left her bleeding and injured
and admitted the
injuries suffered by the child as reflected on J88 completed by Dr
Ochse.
[90]
Regarding
Count 23 the state did not call any witness, the complainant in this
count has since passed on.
The
Arresting Officer
[91]
Captain
Dason Magoro
testified
that he is stationed at Sandton tracing unit, among others his duties
is to trace suspect and apprehend them. On the 15
March 2015 he
received information regarding a suspected in a matter of attempted
murder from Alexandra, being Tebogo William Mabula,
he traced him at
Comet location. Boksburg, they knocked and saw accused trying to run
away and they apprehended him.
Identification
Parade
[92]
W/O
Radebe
testified
that he was asked by the investigating officer to assist him in
conducting an identity parade wherein the suspect was
Tebogo William
Mabula on the charges of, Murder at Ext 2 Ramaphosa on the
2012/03/217 Cas 167/03/2012 Reiger Park, escaping from
lawful custody
at Boksburg SAP, at -+21h20 on the 2012/04/28 Cas 339/04/2012
Boksburg, and Rape on 2012/07/09 at about 15h00 at
Plot 93 Poortjie
Rietfontein, Cas 498/07/2012 Orange farms.
[93]
The
identification parade was held at Boksburg Prison on the 18 January
2016.   The investigating officer had informed
the suspect
about the date, time and place where the identity parade will be
held. The investigating officer had arranged everything
including the
officer who was expected to take pictures. The identity parade was
expected to start at 08h00.
[94]
According
to him upon his arrival at the place where the identity parade was to
be held people were already lined up. Suspect was
expected to choose
his own people, who were more or less of his height size and
complexion. He inquired from the suspect if he
was satisfied with
everything of which he responded by saying he was satisfied. At 09h00
the photographer had not yet arrived he
then decided to continue with
identity parade in the absences of the photographer.
[95]
Mr
Mabula was pointed out by Mr Samkeliso Khumalo on the charge of
murder and also by Ms GHM on the charge of rape. W/O Mollo failed
to
point out any person, as a result he was never pointed out on the
charge of escaping. The identity parade was held in accordance
the
rules. During his cross examination it was put to him that the people
on the line up where not chosen by the accused, and also
they were
not of about same height or even complexion, they were more lighter
than accused, accused was the only one who was much
darker in
complexion. W/O Radebe insisted that it was the accused that chose
his own people and after speaking to him he said he
was satisfied
that is why he then proceeded with the identification parade.
[96]
Captain
Chauke
testified
that he is stationed at FCS unit at Johannesburg North. He had
received training on collection of non-intimate DNA samples,
like
Buccal swap. He received instruction to collect buccal swap from a
suspect in case of attempted murder, Alexandra North Cas:

693/02/2015.
[97]
On
the 14 March 2015 he went to Sandton police station meet with Tebogo
William Mabula, the accused before court. He explained the
purpose of
his visit and that he had come to collect buccal samples. After
collecting DNA buccal samples he sealed same in the
presences of
accused, under crime kit with seal number 13DBAB3486TF and put same
under evidence bag number PA 50002253314.
[98]
He
then delivered the said crime kit at Forensic Science Laboratories at
Pretoria on the 17 March 2015.  He then received a
preliminary
report to the effect that the results of the DNA on the buccal swap
link the owner of that buccal swap with other offence
of which they
did not had the suspects. He was requested to go obtain the
confirmatory samples from the same person.
[99]
He
then proceeded to the accused at Alexandra court, wherein he again
explained the whole purpose of coming to obtain again buccal
DNA
swaps from him. After explaining same he then took the buccal swap
from accused sealed it in front of him under seal number
10DBAB
3071TF and he put same in evidence bag number PA 40002613399K
thereafter he requested the accused to sign that everything
was
explained to him. During cross examination it was put to him that on
his second visit to the accused he never explained to
him about the
reason why he had to obtain the second samples. He insisted that he
did explain to him that is why accused had to
sign the form. The said
confirmatory samples where then delivered to Forensic Science
laboratory at Pretoria on the 12 June 2015.
DNA
EVIDENCE
[100]
Veronica
Lethabo 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 has 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.
[101]
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.
[102]
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.
[103]
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.
[104]
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.
[105]
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.
[106]
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.
[107]
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.
[108]
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.
[109]
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.
[110]
Once
a profile is obtained, the laboratory also does a statistical
evaluation to see how common the possible contributor to the
DNA
result is. Her affidavit in terms of Section 212 of the CPA was
received as evidence and the content thereof confirmed by Ms
Thomas.
The relevant portion of the affidavit was carefully read into the
record and the findings in respect the region was carefully
placed on
record. The Section 212 of the CPA affidavit, the content of which
was confirmed by Ms Thomas under oath, revealed the
following:
110.1.
The
DNA result obtained from the following exhibits matched the DNA
result from Mr Mabula:
110.1.1.
The
vaginal vault swab taken from Ms GHM. (Counts 8 and 9); (10D1AC7780)
110.1.2.
The
cervical swab taken from Ms C.L.EC (Count 13); (13 D1AE0477)
110.1.3.
The
vaginal vault swab taken from Ms S.R.M (Count 18); (13D1AE0647).
110.1.4.
The
vagina swab taken from Ms Q.M. (Count 19); (10D1AE4167)
110.2.
The
most conservative occurrence for the DNA result obtained in exhibits
“E”, “H” “J” and “K”

above, is 1 in 61 billion people.
[111]
Ms
Thomas further testified 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.
[112]
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.
[113]
Accused
version in regard to his DNA been found in the private parts of the
four ladies is to the effect that he does not know anything
about
that. That surprises him that his DNA could be found inside those
ladies private parts since he was never in their company
or even had
sexual intercourse with them.
[114]
That
was the State case
Defence case
Tebogo
William Mabula
[115]
Since
I have already referred to Mr Mabula’s testimony or version
during the summary of the State evidence, therefor I shall
not repeat
his evidence safe to state that, his version in all charges with the
exception of his plea explanation in terms of section
112 in respect
of count 22, is a bare denial.
EVALUATION
OF THE EVIDENCE
[116]
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.”
[117]
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:
117.1.
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 Mabula.
117.2.
There
is no suggestion in this case that the machines and equipment used in
this case were not functioning properly;
117.3.
Ms
Thomas correctly interpreted the results and such results were
correctly recorded in terms of the provisions of section 212 of
the
CPA affidavit received as evidence and marked as exhibits “FF”.
The
probability of the match or inclusion
[118]
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. ”
[119]
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.
[120]
The
statistical analysis and results found to exist, were not challenged
or disputed.
The
other evidence
[121]
The
incidents the complainants describe bear striking similarities. They
include:
121.1.
In
Count 11-20   the ladies were alighting from the train, at
Oos Rand train station, which is in Boksburg;
121.2.
In
all cases all the victims were pointed with fire arms;
121.3.
In
case of Ms GHM she and M were confronted by more than one person and
Ms GHM was raped by two men;
121.4.
In
all the incidents cell phones, money and cloths were demanded;
121.5.
Mr
Mabula resided at Comet in the district of Boksburg.
121.6.
Mr
Mabula was linked to all this crimes by DNA with the exception of
count 1 murder.
121.7.
In
the count 1 it is clear that the witnesses knew, if not by sight, Mr
Mabula, they even knew his nickname of Mashabutla.
121.8.
Mr
Mabula was pointed out from the identity parade by both Samkeliso
Khumalo and Ms GHM notwithstanding the fact that both incidents
took
place during 2012 and the identity parade was only held on the 18
January 2016.
[122]
Mr
Mabula denied any involvement in the crimes. His evidence did not
impress me at all. It contained inconsistencies and improbabilities.

I refer to a few:
122.1.
With
regard to count 1, murder, he testified that as he was playing a game
of dice he came from behind the Mlundi’s tavern,
to see who
were fighting, but he meets up with his girlfriend, the girlfriend
then said they must leave, of which they did. On
the way home, they
meet one gentlemen who is unknown to him, he informs him that the
Zulus where looking for him, the question
is how can that gentleman
know that, since it looks like that gentleman was still on his way to
where the fight was still taking
place.
122.2.
Accused
was coming from that place and he did not see anyone that was looking
for him. However that gentleman then give accused
his house key to go
and hide there. Why would accused hide if he did not do anything
wrong, why send his girlfriend to go and check
what was going on.
After been informed that yes indeed there is a boy who was stabbed
and has passed on and it is said he, accused,
is the one who stabbed
him and also the Zulus are looking for him,  he did not wait for
his girlfriend he decide to run away
to his place of residence. If
really he did not do anything why not go back and personally confront
those people who are wrongly
accusing him or alternatively go and
hand himself to the police.
122.3.
In
any way he was ultimately arrested for the same offence and he was
detained at Boksburg police cells. According to him he was
arrested
around Friday and he meet up with W/O Mollo and made arrangement that
can help him, in going home, but he must pay an
amount of R5000.00.
According to his evidence he used W/O Mollo’s cell phone to
arrange with his friends to raise the said
amount. If he was
innocent, with regard to count 1, as he was saying why spend so much
money to pay a police officer to “help’
to go home. Why
not wait up until he appears before court and let the State proof
that he really has killed the deceased.
122.4.
During
cross examinations of witnesses, more so of W/O Mollo it was put to
him that accused was part of the people who have made
an arrangement
with him to release them upon payment of an amount of R5000.00 that
they had to contribute towards the said amount
of R5000.00, however
as stated above he testified that W/O Molo requested the said money
from him,.
122.5.
Regarding
counts 5 to 11 he denied ever going to Poortjie, and he does not know
and has never lived at around Vereeniging, however
on exhibit “EE1”
Mr Nkabinde testified that according to Modderbee’s record
accused has indicated that he was
living at Vereeniging.
122.6.
Secondly
he indicated that during this time of the 09 July 2012 he was in
custody, but when the State came with proof that he was
not in
custody during that time, he altered his version and said that no in
actual fact he had used the name of Thabo Moloi, Still
during his
evidence in chief and also during cross examination he testified that
since the said date was not important in his life
he cannot recall
where he was on that day.
122.7.
Lastly
he failed to can explain how his DNA was found inside the private
parts of all four ladies.
[127] 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
[128]
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.”
[129]
In respect of count 1 the State case rests in the evidence of the
four witnesses, the court is mindful of the fact that this
incident
took place in March 2012 and it is only now that witnesses have come
to testify. They are bound to make mistakes as to
the sequence of the
events.
[130]
The Defence strongly criticised the evidence of the so called “eye
witnesses” being Mr Samukeliso Khumalo and
Mbhekiseni Alson
Nene, alleges that the witnesses testimony is totally different from
their own written statements and in total
the witnesses did not see
who actually stabbed  the deceased.  At the time Samukeliso
Khumalo’s made his statement
he was 16 years old and it is
clear from the statement that he was not duly assistant by any adult,
though he indicated that at
the time he made the said statement his
brothers were around, but he was speaking alone and directly with the
police officer.
[131] In his statement he stated that
while they were outside, that is himself and the deceased, Sisa came
with his friend whom
was unknown to him. That friend of Sisa
scratched him with a knife on his shoulder, he then run away a few
distance and upon his
return he found Phiwayinkosi was stabbed and
laying on the ground.
On
his viva voce evidence he insisted that it was Sisa who scratched him
and he saw Mashabutla stabbing the deceased that is why
he run inside
the tavern to call his brothers.
[132]
Accused may be provisionally allowed to cross-examined on a document
that has not been authenticated  In order to discredit
state
witness on the basis of an affidavit it is necessary to show that any
deviation from the statement in evidence is material
before any
negative inference can be draw.
[133]
On other hand Mr Nene wrote on his statement that he saw two males
approaching Phiwayinkosi , one held his hands at the back
then
Mashabutla stabbed him on the chest, Phiwayinkosi run away and
Mashabutla followed him stabbed him at the back, the Sfiso
tried
apprehending Mashabutla he stabbed him and he run away.  On his
viva voce evidence he insisted that he did not say another
male
person was holding the deceased hands at his back while Mashabutla
was stabbing him.
[134] The other two witnesses, the
confirmed upon coming out of the tavern they saw Mashabutla kicking
the deceased.
[135]
Samukeliso Khumalo made his statement while he was still a minor who
was not duly assisted, notwithstanding the fact that
his brothers
were around but they were not involved at the time he made the said
statement, he further explained that during the
time he made the
statement he was under the influence of alcohol, he was shocked and
scarred, he just wanted to finish writing
the statement and go and
sleep.
The
statement of Samukeliso Khumalo was provisionally admitted in court
in order to allow the defence to cross examined on it.
[136]
See
Carpede
v Choene
1986 (3) SA 445
(O) 455A
.
The accused/defence may therefore be provisionally allowed to
cross-examine a state witness on the contents of a document
which has
not been authenticated, since the accused will only have the
opportunity to authenticate the document after the conclusion
of the
state’s case –
Swanepoel
1980 (1) SA 144
(NC)
However the said statement was never authenticated.
[137]
Mr Nene explained in court that the some parts on the statement are
wrong, and he might have forgotten somewhat he has written
there, but
one thing he is sure about is that Mashabutla is the person who
stabbed the deceased.
[138]
S
v Bruiners en Ander 1998(2) SACR 432 (SE)
“The purpose of an affidavit was to obtain the details of an
offence, so that it could be decided whether a prosecution should
be
instituted against the accused. It was not the purpose of such an
affidavit to anticipate the witness’s evidence in court,
and it
was absurd to expect of a witness to furnish precisely the same
account in his statement as he would in his evidence in
open court”
[139]
Mafaladiso
v S
2003 (1) SACR 583
(SCA) (593j – 594a-g)
“Lastly, the witness’s statement to the police must be
weighed up against the witness’s viva voce evidence"
[140]
As a result when looking at the totality of the evidence of all four
witnesses they did not fabricate their evidence, if they
had planned
their evidence there are strong possibilities that they could have
conspired to testify, without any contradictions
what happened and
taking into account what was stated above in the above cases and
taking the length of time since they, witnesses,
made their
statements and time of coming to testify, it cannot in my view be
said that they were deliberately dishonest or
contradicting
themselves.
[141] Taking into account the
inconsistencies and improbabilities of accused, as stated above more
particularly in this count ,
I have come to the conclusion that  it
is accused who has stabbed the deceased. However it is my view that
the said stabbing
was not planned as a result the state has managed
to proof beyond a reasonable doubt that accused stabbed the deceased
with a knife,
and the said stabbing caused the death of the deceased
as read with the provisions of section 51(2) of the Criminal Law
Amendment
Act.
Count
2 to 4
[142]
In these counts it is not in dispute that accused was properly
arrested and detained at Boksburg Police stations holding cells
and
on the next day, after the escape, accused was not inside the police
holding cells.
[143]
The question which the court has to answer is did accused escape from
the Boksburg holding cells and during the said escaped
did he assault
the two complainants, police officers or not.
[144]
It is not the duty of the accused to prove his innocence, he has to
give a reasonable possible true statement. According to
his version
he had made an agreement with W/O Mollo to release him upon payment
of an amount of R5000.00
[145]
The evidence that is before court is to the effect that accused was
detained with another person in his holding cell, Mr Kofa,
who
together with accused escaped or walked away from the cells. Mr Kofa
was arrested and he informed the then investigation officer
on the
case of escaping from lawful custody that “he had made an
arrangement with W/O Mollo to let him escape (go home)”
[146]
Nowhere in his statement did he mention that it was a collective
arrangement which included accused. As mentioned above accused
on his
own evidence stated that it was “it was an arrangement between
himself and W/O Mollo”.
[147]
W/O Mollo failed to point out accused from a line up at the
identification parade, which shows that he never meet the accused,

accused was detained during the time he was not on duty, the night of
the 28
th
April 2012, he also confirmed that he meet Mr Kofa some days before
the alleged escape.
[148]
Further there is evidence to the effect that Sgt Nailane was the
investigating officer on a charge of petty crime, against
Mr Sono.
However she testified that she was instructed by Captain Miya to go
and verify Mr Sono’s address. She and
W/O Mollo allegedly went
down to the cells at around 09h00  at night to go and confirm Mr
Sono’s address.
[149]
According to her testimony, suspects are detained in accordance with
the type of offences they have committed. Suspects in
serious
offences are detained separately from suspects who have committed
petty crimes. However W/O Mollo testified that since
he was in charge
of the cells he knew how he had detained the suspects.
[150]
It makes more sense that suspects are detained in accordance with the
type of offences they have committed. Therefore it did
not make sense
that a suspect in a petty crime should be detained with suspects who
allegedly committed serious offences.
[151]
During the allege escape, it is not clear how the two suspects over
powered the two officers, Sgt Nailane testified that she
was standing
back, after W/O Mollo had opened a security door to let Mr Sono out,
when he saw a person passing W/O Molo at the
gate and grapping him
and they fought over the keys to the cells. It is not clear whether
W/O Mollo after unlocking the security
door and while still holding
the door the keys were in his hands or in the key hole.
[152]
He was hit on the hand then the said person started wrestling with
him, and the other one rushed to Sgt Nailane grabbed her
around her
neck, how did he manage to see that while he was wrestling with the
other person, on the same breath he also manage
to see Sgt Nailane as
she is thrown inside the holding cell and the door is closed behind
her.
[153]
Sgt Nailane upon seeing that W/O Mollo is being attacked why not
scream or rush to press the siren which was inside the holding
cells.
At one stage she was losing breath and lost consciousness for a
period of about 5 to 10 minutes. When she regained consciousness,
she
let herself out of the holding cell. W/O Mollo testified that she was
found inside the holding cell, because he testified that
once the
door to the holding cell is closed the person inside that cell will
not be able to can open it.
[154]
After being so assaulted none of the officers decided to go and
consult a doctor, one would have expected that at least Sgt
Nailane
to have gone for some check-up, more so her chick was swollen and at
one stage she had lost some consciousness for such
a long period.
[155]
I belief the said police officers were not assaulted during the
alleged escape.
[156]
Regarding the count 4, if one looks at the totality of the evidence
one can see that the story of Mr Kofa is reasonably possibly
true, of
having made an arrangement with W/O Mollo to let him go upon payment
of an amount R5000.00
.
Accused
was never part of the said deal. However I belief that accused took
the advantage of the said arrangement, and unlawfully
walked out of
the holding cells of Boksburg Police Station. As a result I have come
to the conclusion that with regard to count
2 and 3 the state failed
to proof the case beyond a reasonable doubt.
[157] However regarding count 4 based
on the stated improbabilities of accused version regarding his arrest
and escape the State
managed to proof the charge against accused
beyond a reasonable doubt.
Regarding
Counts 5-20
[158]
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”.
[159]
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”.
[160] 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
.
[161]
Mr Mabula DNA was found in the most intimate parts of 4 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 4 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 Mabula’s inability to provide
an explanation
for this.
See
Mudau
v The State
,
[2012] ZASCA 56
at para
[11
].
[162]
In order for Mr Mabula to commit some of the offences he had to force
his victims to walked to a certain place, he deprived
them of their
liberty.
[163]
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 Mabula for his DNA being present in 4 of the
victims, the statistical probabilities,
that in all this
incidents, with the exception of Ms C L E C wherein the incident
happen just where she was accosted,  he
forced  all his
victims to walk to a secluded places before he committed those
offences, he took their cell phones, money
and cloths, in all the
incidents firearms were used and also in count 7 complainant M, was
assaulted with a fire arm on the head.
[164]
The State did correctly conceded that count 20 should read Ms Q.M and
not Ms S.R.M and further that the said offence was a
continuous
offence of count 19, and such accused should be found guilty  of
that count. I find that the state has proved beyond
a reasonable
doubt that Mr Mabula was the perpetrator in all these counts 5-19.
[165]
I therefore find Mr Mabula guilty of all the kidnapping, rapes, the
robbery with aggravating circumstances and assault with
intent to
cause grievous bodily harm charges in counts 5-19
[166]
In so far Regarding Counts 21-23, more particularly in count 21 the
State called the evidence of a single witness, the court
has to
approach the said evidence with caution. During the testimony of Ms
Simangele Mathebula she testified among others that
accused came with
the child put him down on the sofa, the ne later came took the child
again wanted to stabbed her, and she reprimanded
him.
[167] She did not know where did
accused get the child from, was the child originally under his care
and since he did not find her
mother then he became angry and said he
is going to kill their child. That is the child of the late Ms M S
and M K.
Since the charge is that of kidnapping
of a child, the State alleges that the minute accused left the child
in the sofa he was no
longer in control and care of her and Ms
Mathebula now the child was in her care. From the evidence Ms
Mathebula never took physical
control of the child, she only provided
a blanket to cover a wet child.
Therefore one cannot conclusively say
she was in control and care of the child.
S
v Artman and Another
1968 (3) SA 339(SCA
)
Holmes JA Single
witness – required that her testimony should be clear and
satisfactory in all material aspects.
On
the other hand accused stated in his plea explanation, on count 22
which is linked to count 21, that the child his, the State
accepted
that plea notwithstanding its reservation with regard to that fact.
[168]
The State submitted that the court should not accept that accused
attempted kill his own child.
[169]
I belief that once the State had accepted that explanation it is
bound by its contents.
[170]
Even if the court should accept that request that accused was not the
father of the child, I belief here we are talking of
being the
biological father, since  Ms Mathebula knew that accused and the
mother of the child where in a relationship one
can to the conclusion
that he was the step-father of the child.
[171]
Further I am not satisfied with the evidence of Ms Mathebula, as
indicated above, her evidence had to be dragged out of her
and if one
applies the above case of
S
v Artman and Another
I come to the conclusion that her evidence was not clear and
satisfactory in all material fact, as such I belief that the State

has failed to proof its case beyond the reasonable doubt when it
comes to count 21.
[172]
Coming to count 22 accused has pleaded guilty to the said count and
give an explanation in terms of the provisions of Section
112 of CPA
and the State accepted same and also the court is satisfied that all
the elements of the crime has been admitted and
as such I accused is
found guilty of that count.
[173]
Regarding count 23 the compliant has since passed on and the State
did not call any witness in this matter as such accused
is found not
guilty of this count
174]
Ferreira
and others v S
[2004] 4 All SA 373
(SCA) Marais JA
387i-j
:
When assessing the credibility of witnesses, the subjective state of
mind of an accused person, the honesty of a professed belief,
or the
probability or improbability of alleged conduct, courts have always
had to take into account such matters as age, gender,
stage of
development, level of education, state of health, life experience,
temperament and personality of the person concerned.
The list is not
exhaustive.
[175]
I therefore find that Mr Mabula’s testimony insofar as it
conflicts with that presented on behalf of the state, is rejected
as
false beyond a reasonable doubt.
[176] In the result I make the
following order:
153.1.
Mr
Mabula is found guilty on counts, 1, 4, 5, 6, 7, 8 ,9, 10, 11, 12,
13, 14, 15, 16, 17, 18, 19,  and 22 (that is Count 1,
2-19 and
22)  as charged.
153.2.
Mr
Mabula is acquitted on counts 2, 3, 20, 21 and 23.
___________________________
C
K Matshitse
Acting
Judge of the High Court
Gauteng Local
Division, Johannesburg
Heard:
24 April 2017 to 25 May 2017
Judgment
delivered: 29 March 2017
Appearances:
The
State: Adv Ndou
For
the Accused: Adv Qoqo