S v Ndziweni (SS149/2015) [2017] ZAGPJHC 190 (29 June 2017)

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[2017] ZAGPJHC 190
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S v Ndziweni (SS149/2015) [2017] ZAGPJHC 190 (29 June 2017)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO:
SS149/2015
Not
reportable
Not
of interest to other judges
Revised.
29/7/2017
In the matter
between:
THE STATE
and
NDZIWENI:
LAWRENCE
ZAMILE
Accused
JUDGMENT
OPPERMAN J
INTRODUCTION
[1]
Mr
Ndziweni has been arraigned on one (1) count of housebreaking with
the intention to rob and robbery with aggravating circumstances,
four
(4) counts of rape, three (3) counts of kidnapping, one (1) count of
attempted kidnapping, four (4) counts of robbery with
aggravating
circumstances, one (1) count of attempted murder and four (4) counts
of possession of unlicensed firearms. 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]
In
terms of section 153(3)(a) of the CPA, 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.
CHARGES AGAINST MR NDZIWENI
Counts 1 - 3: Complainant H R
Count 1 - Housebreaking
[3]
The
State alleges that upon or about 25 December 2012 and at or near Unit
74 Graceland Complex 5
th
Avenue in Norwood Randburg, the accused did unlawfully and
intentionally break and enter into unit 74 Graceland Complex
Cleveland
5
th
Avenue in Norwood Randburg with the intent to rob and did assault H R
and did there and then with force take items which are at
this stage
unknown to the state from H R being her property or in her lawful
possession, and did thereby rob her of same, the aggravating

circumstances being that a firearm was used.
Counts 2 - Rape
[4]
The
State alleges that on or about 25 December 2012 and at or near Unit
74 Graceland Complex 5
th
Avenue in Norwood Randburg, the accused did unlawfully and
intentionally commit an act of sexual penetration with H R, by
inserting
his penis into her vagina without her consent.
Counts 3 - Possession of an
unlicensed firearm
[5]
The
State alleges that on or about 25 December 2012 and at or near Unit
74 Graceland Complex 5
th
Avenue in Norwood Randburg, the accused did unlawfully and
intentionally possess a firearm of which the further specifications

are unknown to the state, without being the holder of a license,
permit or authorization to possess such a firearm.
Counts 4 - 7: Complainant Z N
Count 4 - Kidnapping
[6]
The
State alleges that on or about 27 June 2013, and at or near President
Fouche Street, in the district of Johannesburg, the accused
did
unlawfully and intentionally deprive Z N of her freedom of movement,
by forcing her to accompany him.
Count 5 – Robbery with
aggravating circumstances
[7]
The
State alleges that on or about 27 June 2013 and at or near President
Fouche Street, in the district of Johannesburg, the accused
did
unlawfully and intentionally assault, Z N and with force and violence
take from her possession a Nokia C2 Cellular phone, her
CAPITEC Bank
Card and  R 50. 00 cash her property or property in her lawful
possession and did thereby rob her of same. Aggravating
circumstances
as defined in section 1 of Act 51 of 1977 being present, namely he
threatened to shoot her with a firearm.
Count 6 - Rape
[8]
The
State alleges that on or about 27 June 2013 and at or near President
Fouche Street, in the district of Johannesburg, the accused
did
unlawfully and intentionally commit an act of sexual penetration with
31 year old Z N, by penetrating her vagina with his penis,
without
her consent, in a gang rape situation, where more than one act of
sexual penetration was committed without her consent
by more than one
person in that she was raped by the accused as well as other
co-perpetrators.
Count 7 – Possession of an
unlicensed firearm
[9]
The
State alleges that on or about 27 June 2013 and at or near President
Fouche Street, in the district of Johannesburg, the accused
did
unlawfully and intentionally possess a firearm of which the further
specifications are unknown to the state, without being
the holder of
a license, permit or authorization to possess such firearm.
Counts 8 – 10: Complainant
S N
Count 8 - Kidnapping
[10]
The
State alleges that on or about 16 December 2013, and at or near
President Fouche Street, in the district of Johannesburg, the
accused
did unlawfully and intentionally deprive S N of her freedom of
movement, by forcing her at knife point to accompany him.
Count 9 – Robbery with
aggravating circumstances
[11]
The
State alleges that on or about 16 December 2013, and at or near
President Fouche Street, in the district of Johannesburg, the
accused
did unlawfully and intentionally assault, S N and with force and
violence take form her possession a Blackberry cellular
telephone,
and R 70 cash her property or property in her lawful possession and
did thereby rob her of the same. Aggravating circumstances
as defined
in section 1 of Act 51 of 1977 being present, namely a knife.
Count 10 - Rape
[12]
The
State alleges that on or about 16 December 2013, and at or near
President Fouche Street, in the district of Johannesburg, the
accused
did unlawfully and intentionally commit an act of sexual penetration
with 21 year old S N, by inserting his penis into
her vagina without
her consent.
Counts 11 – 15:
Complainant D S
Count 11 - Kidnapping
[13]
The
State alleges that on or about 28 February 2014, and at or near
President Fouche Street, in the district of Johannesburg, the
accused
did unlawfully and intentionally deprive D S of her freedom of
movement, by forcing her at gunpoint to accompany him.
Count 12 – Robbery with
aggravating circumstances
[14]
The
State alleges that on or about 28 February 2014, and at or near
President Fouche Street, in the district of Johannesburg, the
accused
did unlawfully and intentionally assault, D S and with force and
violence take form her possession a Nokia C3 cellular
telephone, ABSA
bank card and R 50 cash her property or property in her lawful
possession and did thereby rob her of same. Aggravating
circumstances
as defined in section 1 of Act 51 of 1977 being present, namely a
firearm.
Count 13 - Rape
[15]
The
State alleges that on or about 28 February 2014, and at or near
President Fouche Street, in the district of Johannesburg, the
accused
did unlawfully and intentionally commit an act of sexual penetration
with 29 year old, D S by penetrating her vagina with
his penis,
without her consent.
Count 14 – Attempted murder
[16]
The
State alleges that on or about 28 February 2014, and at or near
President Fouche Street, in the district of Johannesburg, the
accused
did unlawfully and intentionally attempt to murder D S, by attempting
to shoot her with the firearm.
Count 15 – Possession of
unlicensed firearm
[17]
The
State alleges that on or about 28 February 2014, and at or near
President Fouche Street, in the district of Johannesburg, the
accused
unlawfully and intentionally possess a firearm of which the further
specifications are unknown to the state, without being
the holder of
a license, permit or authorization to possess such a firearm.
Counts 16 – 18:
Complainant A N
Count 16 – Robbery with
aggravating circumstances
[18]
The
State alleges that on or about 20 May 2014, and at or near President
Fouche Street, in the district of Johannesburg, the accused
did
unlawfully and intentionally assault, A N and with force and violence
take from her possession a handbag, iPhone 5S and a Blackberry

cellular telephone, and R 700 cash her property or property in her
lawful possession and did thereby rob her of same. Aggravating

circumstances as defined in section 1 of Act 51 of 1977 being
present, namely a firearm.
Count 17 – Attempted
kidnapping
[19]
The
State alleges that on or about 20 May 2014, and at or near President
Fouche Street, in the district of Johannesburg, the accused
did
unlawfully and intentionally attempt to deprive A N of her freedom of
movement, by attempting to drag her at gunpoint to bushes
nearby.
Count 18 – Possession of
unlicensed firearm
[20]
The
State alleges that on or about 20 May 2014, and at or near President
Fouche Street, in the district of Johannesburg, the accused
did
unlawfully and intentionally possess a firearm of which the further
specifications are unknown to the state, without being
the holder of
a license, permit or authorization to possess such a firearm.
EVIDENCE
[21]
The
evidence presented in this matter relates to events which occurred on
five separate occasions. I intend summarising the evidence

chronologically with reference to these dates and to deal with the
forensic evidence separately.
Counts 1 to 3 – Ms H R
[22]
Having
given notice of its intention to do so in its section 150 of the CPA
opening address, the State, just prior to the conclusion
of its case,
brought a successful application to admit the hearsay evidence of Ms
Helena R in terms of the Law of Evidence Amendment
Act 45 of 1988
(‘
the
Hearsay Act’
).
The court allowed it and the reasons for this ruling were provided at
the time. Such reasons are, accordingly, not repeated herein.
The
court ordered that the entire content of exhibit “
S
”
be received for the truth of the content thereof, which was a
commissioned statement of Ms H R. The court also and in terms
of the
same application, ruled that that which was communicated to Dr Van
Aardt and which is recorded in the J88 received in evidence
as
exhibit “
D,
”
was also to be considered received for the truth of the content
thereof. The ruling applied similarly to that which had
been said to
Ms Volschenk, a nurse at the Olivedale Clinic on 25 December 2012 and
who made a contemporaneous note in the sexual
assault documentation,
which was received as exhibit “
L
”.
The summary of the evidence which follows, has been extracted from
the aforegoing three documents: On 25 December 2012,
Ms R, 53 years
of age at the time, was residing at […], Northwold (‘
the
scene of the crime’
).
She went to church and arrived home at 01h50 during the morning of 25
December 2012. She parked her car outside her flat and
carried things
from the boot into the flat. Whilst doing this, three men approached
her, one was wielding a firearm. She was ordered
not to scream and
was escorted into the flat. They demanded money to which she
explained that she did not have any but that she
had a handbag, which
was in the bedroom. They ordered her to open the bag and they checked
the content. Her hands were tied with
a tracksuit and they moved
around taking goods. One of the assailants ordered her into the
bathroom and told her that if she did
not co-operate he would shoot
her. He had a gun, which he put on the rim of the bath. He started to
undress Ms R and then proceeded
to have sexual intercourse with her
without the use of a condom even though she had begged him to use
one. After the three attackers
left the house, Ms R drove to the
security guards at the complex and returned with them. She
ascertained that her plasma television
set to the value of
approximately R 3 500, a computer to the value of approximately
R 2 500, a Blackberry cellular telephone
to the value of
approximately R 3 500, another Nokia cellular telephone to the
value of approximately R 300 and jewellery
to the value of
approximately R 30 000 had been taken. She did not have
insurance in respect of such stolen items. There had
been three
perpetrators. The one had a firearm, the other a brown blanket which
was wrapped around his chest and the other was
wearing brown clothes.
They were unclean. Ms R explained to Dr Van Aardt that the rapist had
ejaculated when raping her.
[23]
Certain
formal admissions in terms of section 220 of the CPA were made in
relation to this incident. They include:
23.1.
That
on 25 December 2012 Sergeant Thabiso Stephen Molefe from the local
criminal records centre, Krugersdorp, had attended the scene
of the
crime and had compiled a photo album marked exhibit “
C
”
which reflected the scene of the crime as it appeared on 25 December
2012. The correctness of the photographs as depicted
in exhibit “
C
”
were admitted.
23.2.
That
on 25 December 2012 Dr Michael Gustaf Van Aardt had examined the
complainant Ms R at the Netcare Olivedale Hospital.
23.3.
That
Dr Michael Gustaf Van Aardt had recorded his findings and what was
told to him on a J88 form, and the correctness and the truth
of the
contents of such J88 was admitted.
23.4.
During
the examination Dr Michael Gustaf Van Aardt had used a sexual assault
evidence collection kit to take samples from the complainant.
The
samples were placed in the sexual assault evidence collection kit
which was then sealed with seal number 11D1AA7196XX. During
the
course of the examination the panties of the complainant were also
collected.
23.5.
That
in the early hours of the morning of 25 December 2012 Ms R had
summoned the police to the scene of the crime.
23.6.
That
Constable Raedani had attended the scene of the crime. That the
complainant Ms R had reported a rape and robbery at gunpoint
to him
and that such incident had occurred on 25 December 2012 at 02h00 am
at the scene of the crime.
23.7.
That
Ms R’s complaint led to the opening of case docket Honeydew Cas
1102/12/2012.
23.8.
That
the scene of the crime was 500m from the Total garage at corner
Malibongwe and President Fouche Drive. That such complex was
marked
with “HR” on the Google Map which was received as exhibit
“
B
”.
23.9.
That
the police had received information that Ms R had emigrated to
Portugal and that she was presently untraceable.
23.10.
That
the sexual assault evidence kit with seal number 11D1AA7196XX had
been booked into the SAP13 register of the Honeydew SAPS
on 25
December 2012 and that such kit was in an exhibit bag number
PAD000130486R.
23.11.
That
on 14 January 2013 Warrant Officer Ngubeni had taken the crime kit
with seal number 11D1AA7196XX which had been sealed in the
evidence
seal bag with seal number FSG634080 to the forensic science
laboratory and that the said bag had been received into the

administration system of the forensic science laboratory in Pretoria
by Mr Maswanganye.
Dr Van Aardt
[24]
Dr
Van Aardt, a medical doctor since 2008, testified that he had been on
duty on 25 December 2012 at the Netcare Olivedale Hospital.
He
explained that he had completed the J88 in respect of Ms R (the truth
of the content which had been formally admitted). He had
also brought
his consulting notes to court which was received as an exhibit. He
testified that he had completed the J88 and that
Ms R had told him
that her last consensual intercourse had been on 22 December 2012. He
found quite a lot of ejaculate present
in her vaginal vault. He
explained that ejaculate was sperm. He said that blood and urine
samples were taken and pregnancy tests
were done. He concluded that
there was evidence of forced vaginal penetration with ejaculation.
[25]
He
said that four swabs were taken by him. Each swab was individually
sealed and placed in a kit but he could not testify about
the placing
of the swabs into such kit as this function was performed by the
nurse who had assisted him. He did not have an independent

recollection of the nurse sealing the sexual evidence kit but because
his signature appeared on the hospital notes under the heading

“Evidence collection”, he must’ve witnessed the
sealing of the kit. He confirmed that the evidence collection
kit
would have been sealed in front of the patient.
[26]
The
J88 reflected under section “
F
”,
that the evidence collection kit had been sealed with seal number
11D1AA6551. This, he explained, was not done in his handwriting.
Dominique Volschenk
[27]
Ms
Volschenk, a qualified nurse since 1993, explained that she had been
employed as such at the casualty unit at the Olivedale clinic
on 25
December 2012 when, in the early hours of the morning Ms H R had
presented as a patient. She explained what a crime kit was,
how it
contained individual swabs which got sealed individually and that it
was only opened once the doctor was ready to examine
the patient. She
had taken down the history from Ms R and had recorded such version in
the hospital notes which document was received
as exhibit ‘
L
’.
She testified that she had recorded accurately that which had been
narrated to her. She testified that she had been trained
to record
these facts very carefully as she might be required to testify in
court. It was the first time she had met Ms R.
[28]
She
had assisted Dr Van Aardt. She had opened each swab, handed it to him
and sealed it again. After all the swabs were taken, she
sealed the
sexual assault crime kit. An inventory form accompanied the kit. She
explained that she had given this to the constable
who had collected
the kit. This piece of evidence appears to have been a mistake as it
was ultimately received by the forensic
laboratory having been sealed
into the sexual assault crime kit. She testified that Ms R had
received pregnancy preventative medication
in addition to anti
retrovirals. She had to receive tests for a period of one year after
the rape to ensure that she had not been
infected with the HIV virus.
The anti retroviral medication makes a patient nauseous which nausea
persists for about three weeks.
Medication to counter this effect was
also administered to Ms R.
Cst Mubaya
[29]
Prince
Mashudu Mubaya, testified that he was a constable at the FCS Unit
(Family Violence, Child Protection and Sexual Offences
Unit) in
Honeydew. On 25 December 2012 his duty was to collect a crime kit
from the Olivedale Clinic and to take it to the Honeydew
police
station. He explained that he had erroneously written the ‘serial’
number rather than the ‘seal’
number in the space
provided for such number, on the J88 of Ms R (exhibit ‘D’).
He had collected the J88 form and the
sexual crime kit and had given
it to the policeman on duty who had booked it into the SAP13 under
entry 2532. He had penned his
signature to the relevant entry in the
SAP13. A copy of the SAP13 was handed in and his signature appears on
this document. The
person who received these items took the J88 and
the crime kit, placed it in a bag and used crime bag number
PAD000130486.
W/O Ngubeni
[30]
Mr
Makomani Joel Ngubeni (“
Mr
Ngubeni
”)
testified that he was a member of the SAPS stationed at Honeydew and
that he had the rank of Warrant Officer. He had 24
years’
experience and was attached to the FCS Unit. He had been stationed at
that unit for 12 years. He testified that he
took the crime kit which
was in a bag with number PAD000130486R, opened the bag, removed the
original J88 which was inside the
bag and sealed the sexual crime kit
in a new bag with seal number FSG634080. He testified that he hadn’t
tampered with the
crime kit and if he had, the forensic laboratory in
Pretoria would not have received the bag or kit.
[31]
He
explained further that from 25 December 2012 until 14 January 2013,
the kit was stored in a cabinet to which only he held a key.
No one
else had access to this exhibit during this period.
[32]
The
SAP13 (which was received as exhibit “
T
”)
reflected that Constable Mashiane had booked out the kit. He
testified that he had received it from Mr Mashiane and had
then
placed it in this locked cabinet to which only he had access.
Lufuno David Nekhwalivhe
[33]
Sergeant
Nekhwalivhe testified that he had 12 years’ experience in the
SAPS and that he was on duty on 25 December 2012. During
the early
hours of the morning on 25 December 2012 he was called to the scene
of the crime. He went there because the police had
received a
complaint of house robbery. They were the first officers on the
scene. It was him and Constable Marumo. He found Ms
R and established
from her that a robbery had occurred where a firearm had been used
and that she had been raped. He then contacted
the officers who work
with rape matters. He also informed the LCRC officials, these are the
officials who take photographs and
uplift fingerprints. They arrived
and he pointed out what had occurred and where it had happened. Prior
to them arriving, he took
a statement from Ms R. He identified the
statement that had been taken from her and stated that it had been
done in his handwriting.
It was handed in as an exhibit. He explained
that it was taken down as Ms R was narrating. He also explained that
after it had
been written down he had given her the opportunity to
read the document. He had asked her whether she confirmed the
correctness
of the content and that she had done so. She had appended
her signature to the statement in his presence. He said that he had
an
independent recollection of this incident because a firearm had
been used and that an old lady had been raped. He looked at the

content of exhibits “
C
”
and confirmed that the photographs depicted Ms R’s apartment as
it appeared on 25 December 2012.
Constable Raedani
[34]
He
testified that he had been a Constable in the SAPS on 25 December
2012. That he had joined the SAPS on 23 May 2003 and had resigned
on
6 February 2014. In the early hours of the morning on 25 December
2012 he had been called to the scene of the crime. He found
Ms H R,
some uniformed police officers as well as the complex security
officers. Ms R was seated in her sitting room busy explaining
what
had happened. He recalls that she was 53 years old at the time. Two
days later, he was appointed the investigating officer
in the case.
He had regard to the photographs which form part of the album
received as exhibit “
C
”
and he recognised the property he had gone to on 25 December 2012. He
explained that this complex was approximately 500
meters away from
the corner of Malibongwe and President Fouche Streets. He said that
the drawers had been opened and the apartment
had clearly been
ransacked. There was a candle from which a finger print had been
lifted. He noticed that a computer had been taken
and that the
television set had been removed. He had interviewed the victim who
was in a state of shock. She spoke English to him.
By virtue of what
was communicated to him the fingerprint experts and the photographer
were summoned. He said the precast wall
was photographed and forms
part of the album.  He explained that it had been broken to gain
access to the complex and that
is why it was photographed. One of the
photographs, photo 12 depicted a shoe which he said Ms R identified
as being hers. Being
the investigating officer in the case, he saw
and read her statement which had been taken down by Constable
Nekhwalivhe. After
he interviewed Ms R, he drove her to the Olivedale
Clinic for purposes of having her examined and swabs taken as she had
told him
that three male persons had been involved in the robbery and
that one of them had raped her.
[35]
He
explained that a Sibao Thabo Tshabalala had been linked to the
robbery by fingerprints which were found at the crime scene but
that
the DNA results had excluded him as the perpetrator of the rape. He
was sentenced for the house robbery.
[36]
Ms
R told him that she had come back from church during the early hours
of the morning of 25 December 2012. She had some items in
her
vehicle, which she had placed in the kitchen. On her way back to the
vehicle to fetch the remaining goods, three men accosted
her. One had
a firearm. They took her to her bedroom. They instructed her not to
make a noise and to co-operate. One of them tied
up her hands and put
her in a cupboard. They then started to ransack the house. Before
they left, one fetched Ms R from the cupboard
and took her to the
bathroom. He had a firearm with him, which he put on the rim of the
bathtub. He undressed her, made her bend
forward and raped her. She
asked him to put on a condom but he did not. The firearm was used to
frighten her. She had described
that it was a small handgun. He
explained that Ms R had taken him through the house to show him where
everything had happened and
she had shown him where the gun had been
placed on the bath rim. Constable Raedani was the person who had
taken her to the clinic
and he had made a list of the missing items.
He explained that there was no hesitation when Ms R had explained to
him what had
occurred. He had compiled a check list which was
received as evidence and marked as exhibit “
P
”.
Mr Raedani’s scene statement was put to him during cross
examination and it was received as evidence and marked as
exhibit
“
Q
”.
It was put to him that none of the detail of what had occurred to Ms
R was contained in either the checklist compiled by
him or in his
scene statement and that he had clearly read the statement of Ms R as
taken down by Constable Nekhwalivhe, to refresh
his memory in
preparation of giving evidence. He admitted that he had read through
Ms R’s statement. During re-examination
Constable Raedani was
referred to the covering sheet of exhibit “
D
”
which is the covering sheet to the J88. This was a document Constabel
Raedani had completed on 25 December 2012 in which
he had recorded
the following:
“
On
2012-12-25 at about 02h00, the complainant came home from church, as
she took stuff from the car, she was approached by three
black males
who forced her into the house and robbed her items, and one of them
took her to the bathroom and raped her.”
Counts 4 to 7 – Z N
[37]
Ms Z
N testified that on 27 June 2013 she was […] years of age. She
said that she was going home from work when she alighted
from the
taxi at the Total garage, corner Malibongwe and President Fouche
Streets. She had phoned her brother who ordinarily walks
her home,
but on this day had decided not to do so. She was walking along
President Fouche Street. A person approached her from
the opposite
direction, walked past her and then grabbed her from behind and threw
her into the veld. Another person crossed the
road and also grabbed
her. One assailant had a knife, the other a firearm. They ordered her
to walk. They crossed the river. They
instructed her not to scream.
Both assailants had knives. One assailant was wearing a balaclava.
They put the gun to her head.
The taller one then demanded money. He
took her bag and threw the contents on the ground. They noticed her
Capitec gold card and
demanded the PIN code. Ms Z N complied. The
perpetrator who wanted the PIN code opened her shirt to take her
jewellery. She had
none, whereupon she was instructed to take off her
trousers. One of the perpetrators then had sexual intercourse with
her without
wearing a condom and he ejaculated. The second
perpetrator then had sexual intercourse with her without the use of a
condom and
he ejaculated. Both the first and second perpetrators then
again raped her. The first perpetrator left whilst the second
perpetrator
guarded her. A third person arrived. The third
perpetrator moved her to another spot in the veld and he proceeded to
have sexual
intercourse with her, not wearing a condom and
ejaculating. This third person told her that they had been looking
for her as she
is a person who always walks past. They also wanted to
know where her boyfriend was who always accompanies her. She
explained that
that was her brother. The third person then asked
whether she was going to make disclosures at home about what had
occurred to
her and she said that she wouldn’t. He said that if
she did, he would shoot at her during the day when she past that
route.
The third perpetrator instructed the second perpetrator to
accompany Ms Z N out of the veld. She came upon a woman with children

and they assisted her. She was taken to the Honeydew Police Station.
[38]
She
explained that her bankcard, her money (approximately R 50) and her
Nokia cellular telephone, had been taken from her. She said
that on
the following day when she went to the scene of the crime with the
police officer, she had found her Capitec bank card.
She explained
that she was emotional, she was crying and that she was taken to the
Olivedale Clinic where she was examined by a
doctor. She hadn’t
bathed or changed her clothing before going there and that she had a
vaginal examination done where specimens
were taken. She explained
that she had to go back for almost a year for HIV prevention
medication. Ms Z N was not cross examined
at all.
[39]
Certain
formal admissions in terms of section 220 of the CPA were made. They
include:
39.1.
That
on 28 June 2013, Constable Ithumeleng Tshetlhane from the local
criminal records centre had attended the scene of the crime
at corner
of Malibongwe and President Fouche Streets and had compiled a photo
album which was received as exhibit “
F
”
which reflected the scene as it appeared on 28 June 2013.
39.2.
That
on 28 June 2013 and on the scene of the crime a Capitec card
belonging to Ms Z N had been recovered. It was photograph number
4 on
exhibit “
F
”.
The correctness of the photographs as depicted in exhibit “
F
”
was admitted.
39.3.
On 28
June 2013 Dr N S C Van Der Merwe had examined Ms Z N at the Netcare
Olivedale Hospital.
39.4.
Dr
N S C Van Der Merwe had recorded his findings and what was told to
him on a J88 form. The original was received as evidence marked
as
exhibit “
G
”
and the correctness and truth of the contents was admitted.
39.5.
That
during the examination by Dr N S C Van Der Merwe a sexual assault
evidence collection kit with seal number 13D1AB3890 had been
taken
and the samples were sealed with such number.
39.6.
That
panties and a pair of tights were collected from Ms Z N.
39.7.
That
Sergeant M J Bowane had received crime kit 13D1AB3890 in respect of
Ms Z N from Dr N S C Van Der Merwe on 28 June 2013.
39.8.
That
such crime kit was sealed in evidence bag with seal number
PA4001715744.
39.9.
That
Sergeant Bowane kept the sealed evidence bag PA4001715744 in a
lockable facility to which only he had access from 28 June 2013
to 2
July 2013 when it was conveyed to the forensic science laboratory in
Pretoria.
39.10.
That
on 2 July 2013 the sealed evidence bag was received into the
administration system of the forensic science laboratory by M
R Sasa.
39.11.
That
on 8 July 2013 the sealed evidence bag with seal number PA4001715744
containing the crime kit was received by Warrant Officer
Dikeleti
Emily Tladi, a forensic analyst at the forensic science laboratory.
She had opened the aforementioned evidence bag and
found crime kit
13D1AB3890 therein. The crime kit had the seals intact and was not
tampered with.
[40]
The
J88 reveals that Dr Van Der Merwe concluded that there was some
evidence of traumatic intercourse. There was some vaginal trauma

consisting of superficial tears to the fosa navicularis.
Counts 8 to 10 – S N
[41]
Ms N
testified that on 15 December 2013 she was […] years of age
and was working at the […] in Boskruin. She reported
on duty
at 05h00 on 15 December 2013. Her shift was supposed to end at 15h00
but because they were short staffed, she worked until
23h00. She
needed to get to Malibongwe Street where she would find a taxi at the
Total garage situated at the corner of Malibongwe
and President
Fouche Streets. Whilst walking along Malibongwe Street, a man
appeared almost from nowhere and asked for her phone.
She responded
that she did not have one. He then said he wanted her bag. He grabbed
it and she tugged on the other end. The perpetrator
then produced a
knife from his right trouser pocket. He put the knife blade to her
neck and demanded her handbag. He then ordered
her to accompany him.
He pushed her in front of him, held the knife at her neck and guided
her where to walk. He was very close
to her. They walked for about 10
minutes, until they reached a river with rocks. He opened her handbag
and threw the content on
the ground. He took her cellular telephone
and some cash. Thereafter he instructed Ms N to undress. She refused
but he threatened
her with the knife. She thought he was going to
inflict injuries upon her and consequently undressed. He ordered her
to lie down.
He pulled his trousers and underwear down to his knees
and proceeded to have sexual intercourse with her without a condom
and ejaculated.
During this time she was crying. He then dressed
himself and instructed Ms N to get dressed as well. He said she could
leave. She
said that she didn’t know the way and that she
couldn’t see anything. He showed her the way to the garage. She
took
her bag as well as the items that had been thrown out. He took
the R 70 and her phone. When she reached the garage she explained
to
a man and a woman what had happened to her. They phoned the police
and Ms N waited until the police arrived. She made a statement
and
then she was taken for medical treatment to the Olivedale Netcare
Clinic where specimens were taken. She received HIV preventative

medication. She received follow up treatments. She was unable to
identify the perpetrator. Certain formal admissions in terms of

section 220 of the CPA, were made, which include:
41.1.
That
on 16 December 2013 Dr Bongiwe Manyathi examined Ms N and recorded
her findings and what was told to her on a J88 form, the
original of
which was received as evidence and marked exhibit “
H
”.
The correctness and the truth of the content of the J88 was admitted.
41.2.
That
Dr Manyati used a sexual evidence collection kit with seal number
13D1AC8887JJ.
41.3.
That
Warrant Officer M J Bowani received the crime kit 13D1AC8887JJ in
respect of Ms N from Dr Bongiwe Manyati on 16 December 2013.
41.4.
That
the crime kit was sealed in evidence bag with seal number
PA4000977956.
41.5.
That
Warrant Officer M J Bowani kept the sealed evidence bag PA4000977956
in a lockable facility to which he had access until same
was conveyed
to the forensic science laboratory in Pretoria.
41.6.
That
on 19 December 2013 the sealed bag with seal number PA4000977956 was
received into the administration system of the forensic
science
laboratory by N M W Ntansi.
41.7.
That
on 6 January 2014 the sealed evidence bag with seal number
PA4000977956 containing the crime kit was received by Sihawusenkosi

Ignatius Manzini a forensic analyst at the forensic science
laboratory. He opened the aforementioned evidence bag and found crime

kit 13D1AC8887JJ therein. The crime kit had the seals intact and was
not tampered with.
Counts 11 to 14 – D S
[42]
On 28
February 2014 Ms S was […] years of age and working at […]
in Boskruin. At 05h15 on the morning of 28 February
2014, Ms S was
walking along President Fouche Street on her way to her place of
employment. The taxi dropped her off at the corner
of President
Fouche and Malibongwe Streets. She wanted to cross the street to the
Total garage where she would catch another taxi.
Just as she crossed
the road, she felt a firearm being placed on the back of her neck and
a man said that if she made a noise she
would be shot. He forced her
to walk quite fast by pushing her with his hand on her back whilst
the gun was held to her head. He
took her under a bridge where there
were tall trees and some rocks. She fell on the rocks and her shoes
were left behind. The perpetrator
grabbed her, lifted her and pushed
her to the middle of the bridge. She had a handbag. He demanded her
cellular telephone and money.
She gave him her handbag. He threatened
to shoot her and pointed the firearm at her. He opened the handbag
and in the wallet was
the change she had received from the taxi. It
was about R 50. It also contained a small Nokia phone which belonged
to her sister.
He demanded more money and said that he wanted to
search her breasts as this is where women concealed money. She had
indeed rolled
R 1 000 in tissue paper together with her ABSA
bank card. He found it. He then said that he wanted to rape her as it
had been
a long time since he had been with a woman. He also told her
that when he was done raping her, he would kill her. She explained

that she was very scared at this stage. He told her to pull down her
pants and to lie on the ground, which she did. He took off
his pants.
With one hand he pointed the firearm at her and with the other, he
shone the light of his cell phone. He then had sexual
intercourse
with her without the use of a condom. At that very moment a person
walked on the bridge above them. The unknown person’s
cell
phone rang. This disturbed the perpetrator. He ejaculated and then
jumped off her. In the motion of him jumping off her, Ms
S rolled to
one side and the perpetrator fired a shot at the place where she had
moments before been lying. She explained that
the shot was fired at
the spot where her buttocks had previously been positioned. She said
that she heard the sound. It had been
right next to her. She
explained that, had she stayed where she were, a bullet would have
hit her. She said it was still dark at
the time. After he had fired
the shot, he ran away. She ran in the opposite direction. She walked
to her place of employment, which
took about 30 minutes. She said
that her hair was untidy, her trousers were wet and muddy on the
lower part and that she was emotionally
shocked and traumatised. When
she arrived at her place of employment she started crying and related
the story to her manager. The
police fetched her and after she had
opened a case, she was taken to the Netcare Clinic in Olivedale. They
gave her pills to prevent
pregnancy and other illnesses and specimens
were taken from her. She was given anti retrovirals and her panties
were also sent
off for analysis.
[43]
She
explained that it was dark under the bridge. She could not see the
perpetrator’s face but she could see his body structure
and
height.
[44]
On 29
June 2014 she participated in an identity parade in Randburg.
Constable Seeti had called her at her place of employment and

requested her to attend the parade. He fetched her from her place of
employement and dropped her off at the place where the parade
was to
be held. A woman constable had received her and took her to a room
where another woman was also waiting. An officer came
and asked who
would go first. The other lady started crying so she volunteered. The
officer said she should walk backwards down
a passage and then turn
around, when she would see another officer. She did as she was
instructed and got to a glass wall. She
was asked to point at a
person who was involved in the robbery. She found about 7 to 8 people
standing there. They were all holding
numbers in front of their
chests. She pointed at number 3 because his height and body build
structure was similar to the person
who had robbed and raped her. She
explained that she had only pointed out one person. She said that
nobody told her to point him
out.
[45]
She
explained that when she had fallen in the river, she had seen his
body structure and his height. She said the person whom she
pointed
out was in court and was the accused.
[46]
Constable
Seeti took her back to her place of employment.
[47]
She
said the items, which were taken from her, was the Nokia phone, her
ABSA bank card, the R 1 000 cash and approximately
R 50 which
was in her wallet. During cross-examination she conceded that she
couldn’t see at the time of the commission of
the crime as it
was dark. It was put to her that nothing had prevented the
perpetrator from killing her. She responded that before
he had raped
her he had told her that he was going to rape her and then kill her
because she would go to the police and come back
to this place under
the bridge with the police.  The place would be searched and
that was the place from which he worked.
She also said that after the
incident she went to the scene of the crime with the police where she
found the shoes that she had
been wearing. She was asked whether she
found a cartridge case and she said that she hadn’t searched
for that.
[48]
Certain
formal admissions in terms of section 220 of the CPA were made which
include:
48.1.
That
on 28 February 2014 Dr Sharon Lynne Kay examined Ms S and recorded
her findings in a J88 form which was received as evidence
as exhibit
“
I
”
and had also collected panties of Ms S as an exhibit.
48.2.
That
the sexual assault evidence collection kit and panties were handed
over to Warrant Officer Seeti.
48.3.
That
the sexual assault evidence collection kit and the panties were
sealed in evidence bag with seal number PAD000718254.
48.4.
That
Warrant Officer Seeti had received the sexual assault evidence
collection kit 13D1AE9638 in respect of Ms S from Dr Kay on
28
February 2014.
48.5.
That
the sexual assault evidence collection kit was sealed in evidence bag
with seal number PAD000718254.
48.6.
That
Warrant Officer Seeti kept the sealed evidence bag PAD000718254 in a
lockable facility to which only he had access, until same
was
conveyed to the forensic science laboratory in Pretoria.
48.7.
On 7
March 2014 the sealed bag with seal number PAD000718254 was received
into the administration system of the forensic science
laboratory by
M E Maswanganye.
48.8.
That
on 11 March 2014 the sealed evidence bag with seal number
PAD000718254 containing the sexual assault evidence collection kit

was received by Shannon-Lee Fortuin a forensic analyst at the
forensic science laboratory. She opened the aforementioned evidence

bag and found crime kit 13D1AE9638 therein. The crime kit had the
seals intact and was not tampered with.
Counts 15 to 17 – A N
[49]
On 20
May 2014 when Ms A N was […] years of age and at 12h15, she
was walking along Malibongwe Drive. She came from Suikerbos
Street
and intended to walk down President Fouche. Ms A N was walking in a
westerly direction towards the intersection of Malibongwe
and
President Fouche Streets. She was walking on the northerly side of
Malibongwe Drive. She explained that at the place where
she was
walking there is a bridge, and a pavement where pedestrians walk. Two
men were approaching her, walking towards her in
the same pedestrian
path. The one person kept turning his head to look at the robot, to
see whether it had changed colour and this
made her suspicious. Prior
to that she had been texting her friend on her cellphone. She then
decided to put her cellphone away.
She was carrying her handbag over
her left shoulder and saw the one man putting his hand on his waist.
He produced a firearm. The
one with the firearm grabbed her handbag.
He tugged at it and she fell to the ground. The other one, Mr
Ndziweni, grabbed one foot
and started pulling her down a steep
embankment towards the river. Mr Ndziweni was in possession of a
stick. The person at the
intersection of Malibongwe and President
Fouche Street who was distributing pamphlets, was attracted by the
commotion and came
running to assist Ms A N. Mr Ndziweni and his
co-perpetrator then fled the scene with Ms A N’s belongings. Mr
Ndziweni had
said to his co-perpetrator, when the pamphlet
distributor came running to assist Ms A N, that they should leave her
as they had
the handbag. She explained that the two assailants were
about 60 cm away from her. She said that when this happened she was
screaming
and that is how the pamphlet distributor was made aware of
her plight. They took her handbag, which contained an iPhone and a
Blackberry,
approximately R 700, her purse, her passport and her
identity document. She explained that it was midday. The sun was
shining and
that she had the opportunity to see the perpetrators very
clearly. She could see them properly as they were approaching her and

was in very close proximity to Mr Ndziweni when he was pulling her
foot. He also spoke, so she could hear his voice.
[50]
She
went to the Total garage where she narrated her ordeal to the
employees. She went home and did not have transport to the police

station but reported the incident the following day.
[51]
On 24
June 2014 she was in the same vicinity again, walking down Malibongwe
Drive in a westerly direction on the northerly side
of Malibongwe
Drive. At the intersection she crossed Malibongwe Drive to the
easterly side of President Fouche, opposite the Total
garage. She was
wearing a rather short skirt and one of the two men sitting opposite
the Total Garage said to her: “Hey sister”.
She said she
recognised the voice as the voice of one of the assailants who had
attacked her. She said that she didn’t respond
and that they
had turned their faces towards her looking at her. She recognised Mr
Ndziweni and his co-perpetrator. She was there
to buy bread, which
she didn’t do. She bought a recharge voucher and phoned the
investigating officer, Constable Mabasa,
immediately. She told him
that she was looking at her two assailants. He said that he was on
his way. She then sat on a bench positioned
on an elevated area where
those, who wait for their cars to be washed, sit. She could see Mr
Ndziweni and his co-perpetrator very
clearly. After about 10 minutes
Constable Mabasa arrived. He was in the company of other police
officers. They were driving two
Polo cars, which were unmarked. The
police were clad in civilian clothes. Upon his arrival she pointed
out her assailants. The
one vehicle drove across Malibongwe Drive to
cut off the escape route on that side and the other vehicle blocked
the escape route
in President Fouche Street. She remained seated on
the bench where she had waited for Constable Mabasa. The one vehicle
approached
the two assailants and the one man jumped up and ran into
the trees. Mr Ndziweni was too slow and the policeman was able to
exit
the vehicle and grab him. The police then apprehended him and
placed him in a vehicle. Both vehicles drove around to find the other

person and both vehicles came back to where Ms A N was seated. The
police asked her whether he was the man who had attacked and
robbed
her and she confirmed that he was. She was asked whether the person
who was arrested at the garage was at court and she
confirmed that he
was. She said that she noticed him immediately when she walked into
court.  She was asked what had happened
at the garage. She said
that he had said “ousie ngiyaxolisa” which means “sister
I apologize”. It is a
mixture of languages, “ousie”
can be Sesotho or Afrikaans and “ngiyaxolisa” is Zulu.
She said she didn’t
respond to this but that she had just moved
away from the vehicle. The vehicle then drove off with him. The
second vehicle transported
her to her residence.
[52]
She
said that when she crossed the road, she recognised Mr Ndziweni by
his voice and by his face. She said the other perpetrator
was wearing
the exact same outfit as he was wearing on the day of the incident.
She said that there was nothing that hindered her
from seeing their
facial features, both on 24 June 2014 and on 20 May 2014. She
explained that on the first incident, Mr Ndziweni
had been wearing a
yellow sweater and the co-perpetrator, a balaclava hat, which was
rolled up, and thus only covering his head
and not also his face.
This was the exact same balaclava hat that he had been wearing on the
day of the robbery. She described
the firearm and it sounded like she
was describing a pistol. It was put to Ms A N that had she told the
police that she was able
to identify her assailants then identity
kits would have been drawn. She responded that had the police
requested her to do so she
would have done so, unfortunately, she was
never requested. She confirmed that Constable Mabasa did not take Mr
Ndziweni to the
Honeydew Police Station. It was the other vehicle.
Constable Mabasa had taken her home. She also explained that it was a
busy intersection
and that whilst she was waiting for Constable
Mabasa to arrive, many taxis drove past.
[53]
Siza
Godfrey Mabasa testified that he is a member of the SAPS stationed at
Honeydew. He explained that he was a Constable and that
currently he
has 7 years experience. He explained that during 2014 he was the
investigating officer in Cas 947/05/2014, the complainant
in this
case was Ms A N in which he was investigating a charge of armed
robbery, possession of unlicensed firearm and attempted
kidnapping.
The incident involving Ms A N had occurred on 20 May 2014 and he had
visited the scene with her on Malibongwe Drive.
He explained that
there was a bridge and river and that people slept under the bridge
illegally. After Ms A N had pointed out where
the incident had
occurred, he furnished her with his contact details. He then
explained that Ms A N had contacted him on 24 June
2014 and had
reported to him that she had just seen the two perpetrators of the
crime committed on 20 May 2014. She said that they
were at the robots
at Malibongwe and President Fouche Streets. She said that she was at
the Total garage at the intersection of
Malibongwe and President
Fouche Streets. He told her that she should stay at the garage and he
took Constable Motelo, who has since
passed away having been involved
in a motor vehicle accident, and they drove to the garage. On his
arrival he asked her to point
out the assailants. They were facing in
the opposite direction but they were sitting together. There was a
garbage bin next to
where they were seated. She had told Mr Mabasa
that she had recognized them by their faces when she had walked past
them. Mr Mabasa
explained that they had left the car at the garage
and that he and Constable Motelo walked to them where they were
seated. He said
they were not dressed in police uniform and that his
vehicle was not marked. He said that as he introduced himself the one
stood
up and ran away. He said that this occurred at about 15h00 and
that it was a sunny day. The person who he arrested that day was
Mr
Ndziweni and he explained that he had introduced himself as the
investigating officer in a case involving armed robbery. He
explained
all his rights to him at that juncture. He was then arrested and
cuffed and they walked back with him to where Ms A N
was standing. At
the garage Ms A N confirmed that Mr Ndziweni was the person who had
robbed her. Mr Ndziweni then said to her that
he regretted robbing
her. He just volunteered these words. They then took him to Honeydew
Police Station where he signed for his
rights that had been explained
to him. He then drew case number 1424/02/2014 where the complainant
was D S. This was a rape matter.
After arresting Mr Ndziweni,
Constable Mabasa phoned his informant and furnished his informant
with the name of Mr Ndziweni and
that is why he had drawn the case of
Ms S. The investigating officer was Warrant Officer Seeti. Constable
Mabasa phoned Officer
Seeti and advised him that he had arrested a
suspect that might also be a suspect in the case of Ms S. His
commanders then instructed
him to combine the two dockets. The case
of Ms A N was handed to Warrant Officer Seeti. During cross
examination it was put to
Constable Mabasa that four police officers
had effected the arrest and not only two. Mr Mabasa was adamant that
there were only
two police officers present. It was put to him that
Mr Mabasa was inside a vehicle when he got out and effected the
arrest. This
too Mr Mabasa disputed. It was also put to him that Mr
Ndziweni’s rights weren’t explained to him at the time of
his
arrest. He was asked what Mr Ndziweni had chosen in respect of
his rights after they had been explained to him and Constable Mabasa

said that he had opted to say that he regretted his actions. He was
asked what Mr Ndziweni had elected to do in respect of his
right to
legal representation and Constable Mabasa responded that he said that
he would make a phone call and inform his family.
He was asked to
quote verbatim what Mr Ndziweni had said to Ms A N and he had said
“ngiyazi sola ngalento engiyenzile kuwe”, which means “I
regret what I have
done to you”. He said that it was said in
the Zulu language. It was put to him that in the statement he had
made shortly
after the incident he had not recorded that Mr Ndziweni
had apologized to Ms A N. He said that he wasn’t allowed to
write
about it because it amounted to a confession and that had to be
done by a superior. It was suggested that the reason he didn’t

write it was because it never happened. It was put to him that he
never took Mr Ndziweni to the Honeydew Police Station. He was
adamant
that it was him and Constable Motelo.  It was put that it was
Constable Motelo who had placed him in the holding cells.
It was put
to him that it wasn’t him and that if it were him, his
signature would appear on the 14A statement which was received
in
evidence and is marked exhibit “
DD
”.
Constable Motelo’s signature appears on such 14A statement.
DNA EVIDENCE
RX Mdepa
[54]
Remembrance
Xoliswa Mdepa testified that she was a Warrant Officer in the South
African Police Service attached to the biology section
of the
forensic science laboratory as a forensic analyst and a reporting
officer. She explained that she was in possession of a
B.Sc. honours
degree majoring in microbiology obtained from the University of
Kwa-Zulu Natal. Included, as part of such degree
is a course in
Molecular and Cellular biology. She has been attached to the biology
section of the forensic science laboratory
since 15 February 2007.
Since that time she has received training in serological and DNA
techniques which has afforded her the
knowledge and skills needed for
forensic biological analysis. In total she has 12 years of experience
in the biological sciences.
She explained that she was the author of
an affidavit which she deposed to and which was done in terms of
section 212 of the CPA.
The affidavit was received as evidence and
marked as annexure “
E
”.
The document comprised 5 pages. The summary of her evidence, which
follows, includes both her viva voce evidence and that
which she
deposed to in the affidavit. The import of her evidence was the
following:
[55]
DNA
is the abbreviation for Deoxyribonucleic Acid. DNA is a complex
chemical found in cells throughout the human body. DNA is constant

for an individual and does not change during a person’s
lifetime. Each person’s DNA is the same in all of their cells,

so DNA recovered from blood cells will be the same as that found in
other tissues and body fluids, such as semen or hair roots.
Each
person’s DNA is unique, except for identical twins and
therefore indicates differences between individuals.
[56]
Short
Tandem Repeat (“
STR
”)
profiling is a form of DNA analysis. DNA analysis starts off where
evidence recovery and presumptive testing is carried
out on crime
scene exhibits which are received sealed. The basic procedure occurs
as follows: The Police deliver the samples to
reception at the
forensic laboratory. The person receiving the sample ensures that the
information reflected on the sample corresponds
with the information
contained in the letter accompanying the sample. If the samples
appear to have been tampered with in any way
at this stage, the
laboratory will not accept the sample. An acknowledgement of receipt
is issued to the delivering person. Samples
removed for DNA analysis
are cut and allocated a unique barcode which the reporting officer
uses to follow the progress of the
DNA analysis. DNA is isolated from
the cells contained on the exhibits received from both the crime
scene and the reference samples.
Crime samples are samples obtained
from the victim or the crime scene and reference samples are samples
from a suspect. DNA amplification
called Polymerase Chain Reaction
(“
PCR
”)
follows in which specific areas of DNA, which are known to vary in
size between people, are targeted and copied many times
by using a
Geneamp 9 700 Thermal Cycler.
[57]
STR
profiles are produced by amplifying different areas of DNA that
contain a STR. The area, known as amelogenin indicates the sex

(gender) of the donor. A person will have two bands (alleles,
numbers) for each STR, one inherited from each parent. If the same

band is inherited from both parents then only one band will be seen.
It is the combination of bands at all the STR’s together
and
not the result of a specific STR locus on its own which makes an
individual’s profile unique.
[58]
Next,
the lengths of DNA are separated by electrophoresis, where the
amplified DNA is placed in a ABI Prism 3130XL Genetic Analyser.

Electrophoresis uses charge to separate the different lengths of DNA
as they move through a medium which retards movement. As the
lengths
of DNA pass a specific point in the instrument, a signal is captured
by computer software and converted into numbers known
as data
analysis made possible by Genemapper ID and IDX  software. The
reporting officer now examines all the DNA results
obtained from the
crime scene samples and compares these to DNA results of the
reference samples and tabulates only the relevant
results in a
section 212 of the CPA affidavit, when a match is made.
[59]
For
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.
[60]
She
also explained that a kit number stayed constant but that the last 2
digits changed, depending on the following: a J88 would
be indicated
with “JJ“; an inventory form would be indicated with “IF”
and the sexual assault evidence
kit will be indicated with “XX”.
She further explained that the forensic laboratory did not receive
the J88 but that
they did receive the inventory form which is
completed by the doctor or the nurse attending to the crime sample or
the reference
sample.
[61]
Ms
Mdepa then proceeded to testify in respect of specific swabs
received. As far as the laboratory is concerned, the process is

“blind” but by virtue of the formal admissions made, the
court is able to link a specific complainant to her evidence
for
purposes of this summary.
Z N – Honeydew CAS
1225/06/2013
[62]
She
explained that a “vaginal vault” swab was received from
sexual assault kit 13D1AB3890 and that this crime kit was
sealed in
evidence bag with seal number PA4001715744. She explained that the
sexual assault kit had contained many swabs. It was
brought to the
forensic science laboratory in Pretoria by Sergeant Bowane on 28 June
2013. She said that the swab contained semen.
[63]
She
explained that this swab and the results from the DNA analysis
obtained from this semen swab were compared to reference sample
kit
number 11DBAN3071XX which had come in an evidence bag with seal
number PA4000181040A on 2 July 2014 and that it had been brought
in
by Warrant Officer Seeti. She explained that the “vaginal
vault” swab had come in a long time before the reference

sample. The DNA result which was obtained from the victim sample was
stored in the data base. The data base then picked up that
the DNA of
the reference sample is the same as that of the victim sample. This
reference sample matched up with three other samples
which had
previously been received. These samples were in relation to
CAS1424/02/2014, CAS 676/12/2013, CAS 1102/12/2012 all from
Honeydew.
All three of these cases matched the perpetrator whose reference
sample was received and provided under CAS 1225/06/2015
Ms S
[64]
The
forensic science laboratory in Pretoria had received a cervical swab
in crime kit sealed with number 13D1AE9638 on 7 March 2014
by Warrant
Officer Seeti. When it was received the crime kit was intact and the
bag was sealed in bag number PAD000718254. There
were other samples
handed in as well. The reference sample which was handed in by
Warrant Officer Seeti was sealed with seal number
11DBAA1002XX and
had been placed in evidence bag PA4000283227K. The reference sample
and the sample obtained from the cervical
swab were a match.
S N – CAS676/12/2013
[65]
She
testified that she had received a vaginal swab in sexual crime kit
bearing seal number 13D1AC8887 bagged in evidence bag with
seal
number PA4000977956. It was brought by Warrant Officer Bowane.
Warrant Officer Seeti had brought a reference sample on 12
November
2014, sealed with seal number 11DBAA1001XX in bag number
PA4000283226J. The DNA of the vaginal swab and the reference
swab was
a perfect match.
H R – CAS1102/12/2012
[66]
She
had received a vaginal vault swab from crime kit bearing seal number
11D1AA7196XX sealed in evidence seal bag FSG634080, which
had been
delivered to the forensic science laboratory by Warrant Officer
Ngubeni on 14 January 2014. The reference sample was bagged
in
evidence bag with seal number PA40002832251, containing the buccal
reference sample marked with seal number 11DBAA1003XX which
had been
brought in by Warrant Officer Seeti on 12 November 2014. There was a
perfect match.
[67]
She
explained that the next step in the process was to assess how common
or how rare this match is within the particular population
group. 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 affidavit.
Ms Mdepa had recorded and
testified that the most conservative occurrence for the DNA result
obtained in the exhibits, the four
swabs she had compared with the
reference samples, is 1 in 210 billion people.
Lieut. Mathye
[68]
Lieut.
Mathye testified that she is stationed at the forensic science
laboratory and working as a senior forensic analyst with a
B.Sc
having, majored in biochemistry and microbiology. She had deposed to
an affidavit in terms of section 212 of the CPA which
was received as
evidence and marked as exhibit “
R
”.
She confirmed the content thereof which related to the receipt of a
sealed evidence bag with reference number FSG634080
dealing with
Honeydew CAS1102/12/2012 being the sexual crime kit obtained from Ms
R the complainant in counts 1 to 3. She confirmed
that the bag had
been brought in on 14 January 2013 and that it was received by M E
Maswanganye. She had received it from administration
and everything
was in tact. She personally cut the seals and placed them in the
docket, nothing had been tampered with. She said
that she did
preliminary testing of the swabs to see whether there was semen and
that is where her role in respect of Ms R’s
swabs had ended.
TAKING OF THE BUCCAL SAMPLES
Warrant Officer Seeti
[69]
Warrant
Officer Seeti testified that he was a member of the SAPS stationed at
the FCS unit at Honeydew Police Station. He testified
that Mr
Ndziweni had been arrested on 24 June 2014 whereafter he had taken
over the investigation of all the cases against Mr Ndziweni.
He
explained that on 26 June 2014 he had taken Mr Ndziweni to the
Discoverer clinic. Mr Ndziweni was to appear at the Roodepoort
Court
when Warrant Officer Seeti had approached the control prosecutor and
had explained that he was taking him to the Discoverers
clinic.
Warrant Officer Seeti testified that he had explained to Mr Ndziweni
the reason for taking him. He had told him that it
was suspected that
Mr Ndziweni was involved in certain crimes and that he wanted to take
Mr Ndziweni to the clinic so that buccal
samples could be taken and
the results would then be kept at the laboratory in a database and
his DNA could then be compared with
crime samples obtained from
victims. Warrant Officer Seeti said that Mr Ndziweni understood. He
also told him that he had the right
to legal representation if he so
wanted. He explained that Mr Ndziweni had no problem. Mr Ndziweni
said that he hadn’t committed
any offence so he didn’t
have any problem doing this. Warrant Officer Seeti identified exhibit
“
Z2
”,
a so-called SAP308(a) being a request form, requesting a medical
examination of a person with regard to a physical condition.
Warrant
Officer Seeti explained that he had completed Z2 and he had appended
his signature to it. This form is completed in terms
of section 37 of
the CPA. He was also shown another exhibit “
Z1
”
being a form which is completed by the person taking the buccal
sample. This document was referred to as a “DB”
form.
[70]
He
explained that he was present when Ms Mvelase had taken the buccal
sample. The “DB” form contains the following
acknowledgement:
“
I
hereby give informed consent in writing, to the taking of a
non-intimate sample, after the sample collector has informed me of

the following:
(a)
the
way in which the non-intimate sample is to be taken;
(b)
that
the forensic DNA profile (this is an alpha numeric code which
contains no medical information or information about my
predisposition)
derived from it will be used for forensic comparison
purposes it may produce evidence that might be used in a court of
law;
(c)
that
the forensic DNA profile derived from the sample will be retained on
the National Forensic DNA Database (NFDD), together with
my identity;
(d)
that
the sample taken, the forensic DNA profile derived from it or any
other information stored on or within and associated with
the NFDD,
may only be used for purposes related to the identification of
missing person, the identification of unidentified human
remains, the
identification of an alleged offender, the detection of crime, the
investigation of an offence or the conduct of a
prosecution or for
elimination purposes;
the
following is to volunteers only:
(e)
that
I as a volunteer am under no obligation to give a sample;
(f)
that
the consent given by me can only be withdrawn after submitting the
sample in writing and in accordance with legislative prescripts.
I
also confirm that the information provided by me is true and
accurate. “
[71]
He
explained that Ms Mvelase had read the content of the aforegoing to
Mr Ndziweni in his presence, he had understood and that Mr
Ndziweni
had thereafter appended his signature in the space provided for on
the DB form. After the buccal sample had been taken,
the kit was
properly sealed and handed to Warrant Officer Seeti.
[72]
Warrant
Officer Seeti said that on 7 November 2014 and on a date when Mr
Ndziweni again appeared in court, he had again taken Mr
Ndziweni to
the Discoverers clinic for the same purpose. He explained that he
wanted to confirm the results which they had received
which had
linked Mr Ndziweni to several offences. He again completed an
SAP308(a) form. On this occasion his colleague, Warrant
Officer
Tsoka, accompanied him. He again told Mr Ndziweni that they were
going to the Discoverers clinic and explained that he
wanted to have
samples taken for the same purpose. Mr Ndziweni did not refuse or
protest and said that he understood. He explained
that after the
samples were taken they were properly sealed and handed over to him.
During cross examination Warrant Officer Seeti
disclosed that he had
told Mr Ndziweni that he had already been linked to other matters by
DNA on 7 November 2014. It was placed
in dispute that he had appended
his signature to any of the DB forms which had been received in
evidence (four DB forms were ultimately
received by the court all of
which are alleged to have contained Mr Ndziweni signatures). It was
stated that he couldn’t
have signed as he was cuffed. Warrant
Officer Seeti explained that when the samples were taken he was
uncuffed as well as when
fingerprints were taken. It was put to
Warrant Officer Seeti that Mr Ndziweni never consented to either Ms
Mvelase or Dr Dawood
taking any samples. He also testified that he
had spoken to Mr Ndziweni in English and Xhosa. It was put to him
that he was spoken
to in the Tswana language which is the language
spoken by Warrant Officer Seeti. It was put that after about three
weeks after
his arrest he had received a lawyer and had legal
representation. Warrant Officer Seeti explained that his attorney was
present
at court when it was explained to Mr Ndziweni why he was
going to be taken to the Discoverers Clinic. This was disputed.
[73]
A
statement was handed to Warrant Officer Seeti in terms of which he
had stated under oath that he had interviewed a suspect who
had told
him that she would be unable to describe the suspect as he had
threatened her. Because Warrant Officer Seeti had said
that the
suspects had said that they would be able to describe the assailant,
this statement was put to him and the statement was
received as
evidence and marked as exhibit “
BB
”.
During re-examination it was clarified that he had not conducted an
interview or had had a conversation with Ms A N as
this had been done
by Constable Mabasa. It transpired that the statement which was
received as exhibit “
BB
”
dealt with the interview Warrant Officer Seeti had conducted with Ms
Z N under Honeydew CAS1225/06/2013.
Warrant Officer Vincent Tsoka
[74]
Warrant
Officer Tsoka testified that he was a Warrant Officer and a member of
the SAPS stationed at Johannesburg West FCS unit.
He has been a
police officer for 24 years and on 7 November 2014 was on duty. He
was asked by Warrant Officer Seeti to accompany
him to take a suspect
to the doctor. He was shown a DB form (X3) and recognised his
signature on the form where he had appended
his signature as a
witness. He was asked what he had witnessed and he explained that
after the doctor had taken the samples from
Mr Ndziweni, he had
signed to witness the signature of Mr Ndziweni. He added that he had
also signed in a similar fashion
on other DB forms, which had been
received as Y2 and AA1. Warrant Officer Tsoka explained that the
person taking the samples had
explained to Mr Ndziweni why it was
being done and he hadn’t asked any questions. According to w/o
Tsoka Mr Ndziweni had
clearly voluntarily submitted himself to the
taking of the samples. He had also witnessed his signature being
placed on such DB
forms. He was asked whether Mr Ndziweni had been
hand cuffed during the process and he explained that he was hand
cuffed when he
was taken from the cell but when they arrived at the
Discoverers clinic, the handcuffs were taken off. After the samples
had been
taken he was handcuffed again. He couldn’t recall
whether fingerprints had been taken. He also explained that after the
samples
were taken, that all kits were given to Warrant Officer
Seeti. Mr Ndziweni had never refused to provide samples. It was put
to
Warrant Officer Tsoka that neither Dr Dawood nor Ms Mvelase had
given Mr Ndziweni any information. It was also put to him that he
was
hand cuffed during this entire process and it was further put to him
that the keys to the cuffs had been left at court. It
was further
disputed that he had been one of the people who had been taken to the
clinic. It was also put to him that his fingerprints
were taken
whilst handcuffed.
Rosaline Sisane Mvelase
[75]
Ms
Mvelase testified that she was a professional nurse who commenced her
career during 2006. During 2014 she was employed at Discoverers

clinic. As part of her job she took buccal samples. She had made
copies of the DB forms and had kept them under lock and key at
the
discoverers clinic where, when called upon to testify at court, she
had retrieved them and brought copies to court. The copies
brought to
court in respect of that which had transpired on 26 June 2014
consisted of a SAP308(a) form, completed by Warrant Officer
Seeti
(Z2), a DB form (Z1) and an affidavit deposed to by Ms Mvelase  in
terms of which she had recorded, amongst other things,
the seal
number of the crime kit of the buccal sample taken from  Mr
Ndziweni, such seal number being 11DBAN3071XX. She identified
her
signature at the top of the DB form and explained that she needed an
SAP308(a) form before she could take a buccal sample.
She said that
at the time of the taking of the buccal sample, there was one other
person present, being one Sylvia. She said that
she had read from
paragraphs (a) to (d) of the informed consent paragraphs as quoted in
paragraph 70 hereof to Mr Ndziweni,
who intimated that he
understood, that he consented and that he had thereafter appended his
signature to the DB form (Z1) in her
presence. She had handed the
reference sample kit to Warrant Officer Seeti. She recalled that he
was handcuffed upon entering but
was uncuffed as soon as he sat down.
She also explained that on 7 November 2014 she had gone through
the same procedure.
Had received an SAP308(a) (AA2) and had taken a
buccal swab after she had explained paragraphs (a) to (d) of the
informed consent
part of the DB form to Mr Ndziweni (AA1). She had
again deposed to an affidavit, stating that she had obtained this
sample and
had sealed the crime kit with number 11DBAA1002. She added
that she appended her signature at the top of the DB form (AA1) and
after the buccal sample had been taken. She handed the crime kit to
Warrant Officer Seeti. She explained that during the taking
of the
second sample, Warrant Officer Tsoka was present. She was adamant
that he was not cuffed during this procedure.
Dr Dawood
[76]
Dr
Dawood testified that she obtained her medical degree in Cape Town
during 2004 and has practised ever since in the field of clinical

forensic medicine. She is employed by the Department of Gauteng
stationed at Baragwanath. She offers her services to the Discoverers

clinic from time to time.
[77]
On 7
November 2014 she was on duty when she was requested to see a
patient, Mr Ndziweni, who was an alleged perpetrator in a rape
case.
She explained that the police issues a form 308. The form 308 is
signed by a policeman. She says that she gave Mr Ndziweni
a summary
of what was contained in paragraphs (a) to (d) of the informed
consent portion of the DB form. She explained to him that
she would
be taking a swab from his mouth and that this would be compared to
swabs taken from rape victims. She took two samples.
The one was
sealed with seal number 11DBAA1003 and the other with seal number
11DBAA1001. She said the third sample was taken by
sister Mvelase as
Dr Dawood had expressly requested her to do it so no questions could
be asked later. She said that she had kept
copies of the
documentation and that when called upon to come to court, she had
retrieved them. The documents so produced comprised
a SAP 308(a) (X1)
form in respect of Mr Ndziweni, a DB form dated 7 November 2014 (X3)
and an affidavit deposed to by  Dr
Dawood confirming that the
crime kit had been sealed with seal number 11DBAA1001 (X2). She
testified that her signature was appended
on X3 and that Mr Ndziweni
had signed the document in her presence. Dr Dawood was very affronted
by the suggestion that she had
not explained to Mr Ndziweni what was
about to happen to him. Dr Dawood considered this an affront to her
integrity as a medical
practitioner and expressed this quite
forcefully and in no uncertain terms.
EVIDENCE OF MR NDZIWENI
[78]
Mr
Lawrence Zamile Ndziweni testified that he was arrested on 24 June
2014 at the corner of Malibongwe Drive and President Fouche
whilst
waiting for a taxi. He saw the police when they were next to him. He
was instructed to lie down. There were two other people.
The one ran
away.
[79]
After
he was cuffed, he was assaulted by Cst Mabasa. He was then asked who
the friend was who had run away. Cst Mabasa put Mr Ndziweni
into the
car and drove with him to the garage. They stopped next to another
vehicle from which Ms A N alighted. She said, this
is the person and
that he didn’t have a fire-arm at the time of the robbery but
that the friend did. He said that he did
not speak to her at all. He
was then driven to Honeydew police station with two other officers,
not Cst Mabasa.
[80]
On 26
June 2014 he was at Roodepoort court when warrant officer Seeti
arrived at his holding cell. He was taken to an office where
he
waited outside and a woman told warrant officer Seeti to have Mr
Ndziweni back by 13h00. In that office, he was handcuffed and
the
keys were left behind.
[81]
He
was taken to the clinic by two woman and warrant officer Seeti. At
the clinic a doctor took swabs from his mouth and thereafter
his
fingerprints were taken whilst his hands were still cuffed behind his
back. He denied that Ms Mvelase had explained to him
what she was
about to do and that he had appended his signature to the DB forms.
He said it would not be possible to sign as his
hands had been cuffed
behind his back. He said the same in respect of Dr Dawood.
[82]
He
said that he had learnt what the purpose was of these samples after
he returned to prison, that is, after the first buccal sample
had
been taken on 26 June 2014. He knew what was going to happen the
second time round as he was driven along the same route.
[83]
He
explained that by the end of July 2014 he had legal representation.
He denied that his legal representative was present as warrant

officer Seeti had testified during the explanation prior to the
departure to Discoverers clinic the second time that,  is
on 7
November 2014.
[84]
Mr
Ndziweni denied any involvement in any of the crimes. He also,
surprisingly, and for the first time during his evidence in chief,

raised an alibi defence for the offences committed on 25 December
2012 against Ms R. He said that he was in the Eastern Cape during

this time.
[85]
During
cross examination it emerged that Mr Ndziweni resided in Diepsloot
and that he used to use that route, being dropped at that

intersection, quite often. He had been using that road for about 4 –
5 years prior to his arrest. He didn’t know Ms
A N prior to the
day of his arrest. Said he also didn’t know the man who had run
away. He said he was standing on his own
when the police walked right
up to him and arrested him.  He was told to lie down and then he
was assaulted.
[86]
He
testified that before he was put into the cells he was given a
document to sign in which his rights were explained to him. This
had
occurred at 15h50 on 24 June 2014. He was left with a copy of this
document. He conceded that when warrant officer Seeti fetched
him
from the holding cells at court on 26 June 2014, he knew what his
rights were as he had been left with a copy of the document

explaining his rights to him.
[87]
During
his evidence it also became apparent that he had been arrested
before. He conceded that due to this fact, he knew what his
rights
were at the time of his arrest on 24 June 2014.
[88]
He
confirmed that it was not his evidence that he refused to give swabs
nor was it his evidence that he had a problem giving swabs.
[89]
He
said he didn’t ask any questions. He was asked to open his
mouth which he did. He co-operated. He said he asked when he
got to
prison what the purpose of taking these samples was and he was told
that his DNA could be linked to a crime/s. Thus, prior
to going to
the Discoverers clinic on 7 November 2014, he had been told that the
purpose of the swabs was to in- or exclude him
as a perpetrator in
respect of certain crimes.
[90]
His
evidence was that there was no agreement with nurse Mvelase but that
he had no problem with her taking the samples.
[91]
The
court asked Mr Ndziweni about him being in the Eastern Cape during
the December of 2012. He said he had also been to the Eastern
Cape
for family gatherings during 2009, 2011, 2012 and 2013. He was asked
why it wasn’t put to any of the witnesses during
cross
examination. He responded that Mr  Bosiki  had never asked
him about his whereabouts during December of 2012 and
he had never
volunteered such information to Mr Bosiki  either.
[92]
Upon
further questioning by the state mr Ndziweni was asked whether any of
his family members could confirm whether he had been
at the family
gathering. He mentioned Richard Ndziweni and Mlungiso Ndziweni. He
was asked about the specifics relating to his
visit and when asked
why such visit was so special that he could remember so much detail,
he responded,  because it was the
last time he had visited the
Eastern Cape. When confronted with the dates previously provided to
the court, he said he had made
a mistake. It was put to him that he
was lying.
[93]
Mr
Bosiki requested that Mr Ndziweni be afforded an opportunity to
locate these witnesses. The court then stood the matter down
from 29
March 2017 to 31 March 2017 in order to establish whether the
witnesses could be traced. On 31 March 2017 no further application

was made to postpone the matter for the evidence of such witnesses.
The case for Mr Ndziweni was closed.
ISSUES IN DISPUTE
[94]
The
sole issue for determination by this court is the identity of the
perpetrator of the crimes that Mr Ndziweni is charged with.
The fact
that the crimes were committed has not been disputed and can be
accepted as common cause.
[95]
In
respect of counts 1 to 3 (Ms R), counts 4 to 7 (Ms Z N) and counts 8
to 10 (Ms S Ncobo), the state sought to link Mr Ndziweni
to the
crimes by, primarily, DNA evidence. In respect of counts 11 to 15 (Ms
S), the state sought to link Mr Ndziweni to such crimes
relying,
primarily, on the evidence of identification at the identity parade,
the dock identification in court and the DNA evidence.
In respect of
Counts 16 to 18, the state sought to link Mr Ndziweni, primarily,
with reference to the evidence of a single witness’

identification.
APPROACH TO THE EVIDENCE
[96]
In
S
v Nyembe
,
2014 (1) SACR 105
(GSJ) Van Oosten, J held as follows at para [8] –
“…
In
S
v Sithole
[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 parts 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.”
EVALUATION OF THE EVIDENCE
Informed consent
[97]
In
respect of the DNA evidence, Mr Ndziweni disputed that he had given
informed consent for the Buccal samples taken from him.
[98]
Section
36D of the CPA was inserted into the CPA by section 2 of Act 37 of
2013 which came into operation on 31 January 2015.
[99]
This
section should be read with section 225 of the CPA which reads as
follows:
(1)
Whenever it is relevant at criminal proceedings to ascertain whether-
(a)
any
fingerprint, body-print or bodily sample, as defined under Chapter 3,
or the information derived from such prints or samples,
of an accused
at such proceedings corresponds to any other fingerprint, body-print,
bodily sample, crime scene sample or the information
derived from
such samples; or
(b)
the
body of such an accused has or had any mark, characteristic or
distinguishing feature or shows or showed any condition
or
appearance, evidence of the fingerprints or body-prints of the
accused or that the body of the accused has or had any mark,

characteristic or distinguishing feature or shows or showed any
condition or appearance, including evidence of the result of any

blood test of the accused, shall be admissible at such proceedings.
(2)
Such evidence shall not be inadmissible by reason only thereof that
the fingerprint, body-print, or bodily sample as defined
in Chapter
3, in question was not taken or that the mark, characteristic,
feature, condition or appearance in question was not
ascertained in
accordance with the provisions of sections 36A, 36B, 36C, 36D, 36E or
37,
or
that it was taken or ascertained against the wish or the will of the
accused concerned.
(emphasis
provided)
[100]
The
presumption against retrospectivity would militate against a finding
that this case is governed by section 36D as the samples
were taken
prior to 31 January 2015.
[101]
The
evidence of Mr Ndziweni, unassessed and accepting the truth of the
content thereof for the moment, reveals the following:
101.1.
He
had previously been arrested. He knew he had the right to legal
representation and knew he could insist on legal advice in respect
of
the taking of the buccal sample. He did not request such legal
assistance.
101.2.
After
his arrest and prior to being incarcerated at the police station, he
was issued with a document containing an explanation
of his rights,
which included his right to legal assistance. He made no request for
legal assistance.
101.3.
Thus,
on the day of his arrest, being 24 June 2014, Mr Ndziweni knew what
his rights were. Later in the day and at the police station,
he was
again reminded verbally and given a document in which such rights
were explained to him.
101.4.
After
the taking of the buccal sample and upon return to the prison, he
learnt that the samples were taken to compare his DNA to
DNA isolated
in respect of other crimes. When he returned to the Discoverers
clinic for a second time on 7 November 2014, there
could be no doubt
in his mind as to the purpose of his visit yet he made no attempt to
voice an objection nor to request legal
assistance.
[102]
It is
clear from a reading of section 36D(2)(3), that a person falling
within the persons identified in section 36D(2)(a) to (v)
is obliged
to submit a sample – the only choice such a person has is that
she may request to take it herself. A refusal to
submit a sample is
not an option catered for in the section. There exists no specific
provision on the question whether reasonable
force can be used to
take the sample. Referring to cases such as
S
v Orrie & another
,
2004 (1) SACR 162
(C) and
Minister
of Safety and Security & another v Gaqa
,
2002 (1) SACR 654
(C), Meintjies, Van der Walt & Knoetze
(2015)
28
SACJ
131
at 149 conclude; ‘
In
both cases……infringement of the persons’ rights
[was] far greater than in the case of a buccal swab. It therefore

goes without saying that the [forced] taking of a buccal swab will be
reasonable and justifiable’
[103]
It is
not insignificant that Mr Ndziweni does not challenge the accuracy of
the  findings. He did not have a fundamental objection
to the
taking of the buccal samples, see
S
v R and others
,
2000 (1) SACR 33
(W) at 43D
[104]
Prof
Theophilopoulos in the January 2010, Vol 127, Issue 1 of  SALJ
concluded in her article ‘
The
Privilege against Self-Incrimination and the Distinction between
Testimonial and non-Testimonial Evidence’
at p 135:
‘
All
South African cases uphold the taking of blood, DNA, semen, urine and
skin scraping samples, whether they were acquired with
or without a
person’s voluntary co-operation.
144
The taking of such samples for the purpose of chemical comparison
with traces found at the scene of a crime or on a victim, or
even for
the purpose of establishing a medical condition or blood alcohol/drug
level, is a reasonable limitation of the person’s

constitutional rights to privacy, dignity and bodily integrity, even
though it may involve a certain degree of violent intrusion
of the
person’s body.
145
Sampling is entirely passive and non-testimonial in the sense that a
person is not required to make a volitional or affirmative
assertive
self-incriminatory communication. The person also need not make a
choice between lying and telling the truth and therefore
is not being
subjected to a cruel trilemma.’
[105]
Although
she was not discussing section 36D, I agree with her conclusion ie
that voluntary cooperation is not required for purposes
of
admissibility of DNA evidence in terms of section 36D nor was it a
requirement prior to the enactment of section 36D, see
S
v Monyane and others
,
2001 (1) SACR 115
(TPD) at 130 c - d where Borchers J held as
follows:
‘
The
appearance of an accused as a suspect at an identification parade
cannot in my view be equated with a situation where he is
invited to
make a statement or a pointing out which may be incriminatory. At
an identification parade, an accused is required
to stand mute
and passive amongst other people of similar appearance while a
witness scrutinises the line-up with the view to identifying
the
person who has allegedly committed a particular crime. An
identification parade does not invite self-incrimination. Its aim
is
the obtaining of real evidence against the accused, similar to the
position where a finger-print is taken with the intention
of
comparing it with a finger-print found at the scene of a crime, or
with the taking of a blood sample from an accused with the
view to
analysing it to ascertain its alcohol content. I entirely agree with
the approach adopted’
[106]
DNA
evidence obtained from a buccal sample, meaning a sample of cellular
material taken from the inside of a person’s mouth,
is one of
the most non-invasive procedures known to man. The taking of a buccal
sample does not invite self-incrimination. It could,
as was the case
with Mr Tshabalala, exclude a suspect as the perpetrator in respect
of the alleged offence.
[107]
Assuming,
without finding, that consent to the taking of the buccal sample was
to be read into section 36D of the CPA and that consent
was a
requirement prior to the enactment of section 36D, section 225(2) of
the CPA provides expressly that non-compliance with
the provisions of
section 36D would not render the evidence inadmissible by reason only
of it having been taken against the wish
or will of the accused
concerned. This section seems to be incorporating the provisions of
section 35 of the Constitution. The
admissibility of evidence
obtained through a breach of a constitutional right, is regulated by
the provisions of section 35(5)
of the Constitution, which reads:
‘
(5)
Evidence obtained in a manner that violates any right in the
Bill of Rights must be excluded if the admission of that
evidence
would render the trial unfair or otherwise be detrimental to the
administration of justice.’
[108]
In
considering whether the admission of the evidence would be to the
detriment of the administration of justice, the Court should
consider
whether the violation was
bona
fide
or
mala
fide
.
If the Police acted in good faith it would be a factor in favour of
the inclusion of the evidence and if the facts show
that the
violation did not consist of a serious and flagrant breach of the
accused's rights it would also be a factor in favour
of
admissibility.
See
S v Pillay and Others,
2004 (2) SACR 419
(SCA) at 434G-I; S v R
(supra) at 43E and S v Nel (supra) at 43G.
In
S
v Tandwa
2008 (1) SACR 613
(SCA) at paragraph [116], Cameron JA, Mlambo JA and
Hancke AJA, formulated the test to be applied when considering
the exclusion
of evidence obtained in violation of the Constitution
as follows:
“
[116]
The notable feature of the Constitution's specific exclusionary
provision is that it does not provide for automatic exclusion
of
unconstitutionally obtained evidence. Evidence must be excluded only
if it
(a)
renders the trial unfair; or
(b)
is otherwise detrimental to the administration of justice. This
entails that admitting impugned evidence could damage the
administration
of justice in ways that would leave the fairness of
the trial intact: but where admitting the evidence renders the trial
itself
unfair, the administration of justice is always damaged.
Differently put, evidence must be excluded in all cases where its
admission
is detrimental to the administration of justice, including
the subset of cases where it renders the trial unfair. The provision

plainly envisages cases where evidence should be excluded for broad
public policy reasons beyond fairness to the individual accused.”
[109]
What
needs to be balanced are the needs of maintaining pre-trial
procedural standards and having all relevant and admissible evidence

brought in against an accused person.  The facts and surrounding
circumstances must be considered in order to determine the
fairness
of a trial, see
Key
v Attorney-General, Cape Provincial Division and Another
[1996] ZACC 25
;
1996
(2) SACR 113
(CC) at 121A.
[110]
Fairness
is also not a one-way street conferring an unlimited right on an
accused to demand the most favourable possible treatment.
A
fair trial also requires fairness to the public as represented by the
State.  The public needs to be filled with confidence
in the
criminal justice system.
See
S v Shaik,
[2007] ZACC 19
;
2008 (1) SACR 1
(CC)
at
para
[43]
[111]
Mr
Ndziweni has not alleged that any of his Constitutional rights have
been infringed. Had he identified these rights as his rights
to
dignity, privacy and bodily integrity, I would have found that taking
a buccal sample under the circumstances sketched by Mr
Ndziweni,
would have constituted a justifiable and reasonable infringement of
such rights. The admission of such evidence would
not give rise to an
unfair trial nor would it bring the administration of justice into
disrepute.
[112]
However,
I need not go that far as I find, on the facts, that Mr Ndziweni did
indeed give his informed consent. I accept, unreservedly
the evidence
of Dr Dawood and the registered nurse Ms Mvelase, that Mr Ndziweni
was informed of the procedure to be performed on
him and that on each
occasion that a sample was taken from him (ie once on 26 June 2014
and three times on 7 November 2014 –
thus on four separate
occasions), he had given his informed consent and had communicated
this by appending his signature to the
DB forms received into
evidence as exhibits ‘X3’, ‘Y2’, ‘Z1’,
‘AA1’. Not only were
these acts of consent witnessed by
the medical practitioners, but also by warrant officer Seeti on all
occasions, and by warrant
officer Tsoka, on three occasions. These DB
forms were locked up by Dr Dawood and retrieved three years later
when she and Ms Mvelase
were called upon to testify. None of the
state witnesses, other than Dr Dawood and Ms Mvelase, had access to
these documents. They
constitute contemporaneous notes of what had
occurred on the days in question and I find that Mr Ndziweni’s
evidence in relation
to the taking of the buccal samples, in so far
as such evidence conflicts with that of the state witnesses, is
rejected, as false,
beyond reasonable doubt.
Circumstantial evidence – DNA
evidence
[113]
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.”
[114]
The
form of DNA analysis used in this matter is called STR (Short Tandem
Repeat) profiling. The unchallenged and undisputed evidence
given by
Ms Mdepa, read with the affidavits received in terms of section 212
of the CPA which include an appendix (confirmed under
oath by Ms
Mdepa) amplifying the science behind the process and the formal
admissions made, reveal the following:
114.1.
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 Ndziweni.
114.2.
There
is no suggestion in this case that the machines and equipment used in
this case were not functioning properly;
114.3.
Ms
Mdepa correctly interpreted the results and such results were
correctly recorded in the section 212 of the CPA affidavit received

as evidence.
[115]
In
assessing the DNA evidence it should be born 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. ”
[116]
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.
[117]
The
statistical analysis and results found to exist, were not challenged
or disputed. Ms Mdepa had recorded and testified that the
most
conservative occurrence for the DNA result obtained in the exhibits,
the four swabs she had compared with the reference samples,
is 1 in
210 billion people.
[118]
The
incidents the complainants describe bear striking similarities. They
include:
118.1.
All
of the incidents occurred within a 500 meter radius of the
intersection of Malibongwe and President Fouché Streets.
118.2.
In
three of the incidents the victims were taken to the river close to
or under a bridge.
118.3.
In
three of the incidents the perpetrators had guns.
118.4.
In
two of the incidents the perpetrators had a knife in addition to a
gun.
118.5.
In
four of the incidents handbags had been taken.
118.6.
In
all the incidents cellphones and money were demanded;
[119]
Mr
Ndziweni had used this route on and off for 4 to 5 years prior to his
arrest. He worked as a plumber, only when needed, in Centurion
and
would use the route that took him past the intersection of President
Fouché and Malibongwe Streets. His employer lived
in that
area.
Evidence of Mr Ndziweni
[120]
Mr
Ndziweni denied any involvement in the crimes. His evidence did not
impress me at all.  A number of things were not disputed
when
the witnesses testified. This despite an express warning by the court
that Mr Ndziweni 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:
120.1.
Constable
Mabasa testified that he had spoken to Mr Ndziweni in both English
and Zulu. During constable Mabasa’s evidence
it was never
disputed that these were the languages used. Yet, for the first time
during cross-examination, Mr Ndziweni raised
the fact that he was
talking to him in the Tsonga or Venda languages.
120.2.
Constable
Mabasa and Ms A N had both testified that Mr Ndziweni was in the
company of another person. For the first time when Mr
Ndziweni was
cross-examined he revealed that there  was another person but
such person was not with him, rather such person
was with the sweet
seller.
120.3.
It
wasn’t put to warrant officer Seeti that on both occasions that
he had been taken to the Discoverers clinic he was handcuffed.
Only
put to him in respect of the first visit.
120.4.
During
cross examination Mr Ndziweni explained that prior to the identity
parade, two policemen had taken about 15 photos of him
and these very
same policemen had travelled with Ms S on the day of the identity
parade thus implying that they had shown Ms S
who to point out. This
had not been put to either warrant officer Seeti (who had transported
Ms S) or to Ms S herself. He also
testified that he had seen her at
court for the first time. How could he have known that these men,
possessed of the 15 photographs,
had transported her if he had seen
her at court for the first time in his life?
[121]
Further
difficulties with Mr Ndziweni’s evidence includes:
121.1.
Initially
during cross examination Mr Ndziweni conceded that after his arrest
and whilst at the police station his rights were explained
to him and
he was given a copy of the document embodying such rights. This
admission was later retracted and confined to receipt
of the document
only.
121.2.
The
state spent weeks leading the evidence relating to the charges
against Ms R. Not once during this time did it occur to Mr Ndziweni

that he should be telling his legal representative that he has an
alibi in respect of such defence. This is simply not plausible.
The
raising of an alibi defence at a very late stage in the trial is not
a neutral factor and is indeed something a court can and
should have
regard to in assessing an accused’s version, see
S
v Thebus
,
[2003] ZACC 12
;
2003 (6) SA 505
(CC) at paras [67] and [68].
[122]
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 circumstantial evidence
[123]
The
State’s case rests, in respect of many of the counts, 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 ”.
[124]
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”.
[125]
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”.
Single witness identification
evidence
Ms A N (counts 16 – 18)
[126]
Section
208 of the CPA authorises a court to convict on the evidence of a
single witness alone. A court is required to find that
the
evidence was clear and satisfactory in all material respects, see
R
v Mokoena
1932 OPD 79
at 81;
S
v Webber
1971 (3) SA 754
(A); S
v
Sauls and Others
1981 (3) SA 172
(A) at 180E-G and
S
v Janse van Rensburg and Another
2009
(2) SACR 216
(C) at 220G.
[127]
Ms
A N identified Mr Ndziweni both on the day of his arrest (24 June
2014) and in court. Ms A N struck this court as a confident
and brave
young woman. Her honesty is, of course, not the only thing that
should move this court to accept her evidence. The true
issue which
falls for determination is whether her evidence is reliable.
[128]
The
20
th
of May 2014 was a sunny day and Ms A N was approached by two
assailants. She had some opportunity to see the two men approaching

her. She could give the court a description of their clothing, the
role Mr Ndziweni played and whether he was armed (he was carrying
a
stick). She had an unobstructed view of his face when he walked
towards her, she was looking at him when he was pulling her by
her
foot, she heard him speak and she listened and looked at him during
the ordeal. When she saw him a month later, there was no
hesitation,
she phoned the police immediately. She kept watching him. She had a
view of his face and she heard his voice, which
she recognised. The
corroboration came in the apology he tendered to her. I am satisfied
that her evidence identifying Mr Ndziweni
as the person who robbed
her on 20 May 2014 and who attempted to kidnap her by pulling her
down the slope to a place of fear and
torment, is reliable.
Ms
S (counts 11 to 15)
[129]
I
attach very little, if any, weight to the evidence of the positive
identification at the identity parade. Ms S admitted that she
could
not identify Mr Ndziweni on his facial features as it was dark at the
time of the commission of the offence. Mr Ndziweni
said that he had
been afforded the opportunity to choose men of similar build to stand
with him on the identity parade. That being
so, an identification
based on his build and shape can only have limited value.
Assessment of all the pieces of
evidence
[130]
The
State must prove the guilt of an accused person 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.
[131]
Mr
Ndziweni’s 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 Ndziweni’s inability
to provide
an explanation for this, see
S
v SMM
,
2013 (2) SACR 292
(SCA) at para [11].
[132]
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 Ndziweni for his DNA being present in 4 of the
victims, the statistical probabilities, that all
of the incidents
occurred within a 500 meter radius of the intersection of Malibongwe
and President Fouché Streets, that
in three of the incidents
the victims were taken to the river close to or under a bridge, that
in four of the incidents the perpetrators
had guns, that in two of
the incidents the perpetrators had a knife in addition to a gun, that
in four of the incidents handbags
had been taken, that in all the
incidents cellphones and money were demanded and that Mr Ndziweni
had frequented the intersection
for a period of 4 to 5 years prior to
his arrest, I find that the state has proved beyond a reasonable
doubt that Mr Ndziweni was
the perpetrator in all the counts.
[133]
In
respect of the possession of fire-arm counts, counts 3, 7, 15 and 18,
the following: Ms S testified how the assailant told her
that he was
going to rape her and then shoot her because, if he did not do so,
she would bring the police to that place and such
place was where he
worked. Even though the pedestrian on the bridge interrupted the
rape, the perpetrator made good on his threat
and attempted to shoot
Ms S. Had she not moved, she would’ve been shot in her abdomen.
In my view these facts quite evidently
prove the offence of attempted
murder. However, what it also does, is it evidences the fact that the
gun used by Mr Ndziweni was
functional. I infer from this incident
that the firearm used in the commission of all the other offences
(counts 1 to 18) were
executed with a fully functional firearm. In
respect of count 18, the evidence was that Mr Ndziweni’s
accomplice was holding
the firearm, and in respect of count 7, it was
one of the three rapists who was holding the firearm. It bears
mentioning that Mr
Ndziweni conceded that he is not the holder of a
firearm licence.
[134]
In
S
v Mbuli
2003 (1) SACR 97
(SCA), the appellant in that case and his two
co-accused were charged with and convicted of being in possession of
a hand grenade
that had been found in their vehicle shortly after
they had robbed a bank.  Nugent JA found that the evidence did
not establish
that the appellant and his co-accused had possessed the
hand grenade jointly and that accordingly it was possible that the
hand
grenade had been possessed by only one of them.  Nugent JA
concluded with these words:
‘
[72]
In the present case the trial court found, as a matter of
inference, that those requirements had been fulfilled in respect
of
all the accused in relation to the hand grenade. Although the
correctness of that finding was placed in issue when the accused

appealed, it was not dealt with expressly by the Court a quo. I do
not agree that the only reasonable inference from the evidence
is
that the accused possessed the hand grenade jointly. It is equally
possible that, like the pistols, the hand grenade was possessed
by
only one of the accused. Mere knowledge by the others that he was in
possession of a hand grenade, and even acquiescence by
them in its
use for fulfilling their common purpose to commit robbery, is not
sufficient to make them joint possessors for purposes
of the Act. The
evidence does not establish which of the accused was in possession of
the hand grenade and on that charge, in my
view, they were entitled
to be acquitted.’
[135]
In
S
v Kwanda
2013 (1) SACR 137
(SCA) the appellant had been convicted of being in
possession of a firearm.  Immediately prior to his arrest the
appellant
had been the driver of a white Nissan Maxima vehicle. Two
passengers, Isaac Zikalala and Sipho Mahlenche, were with the
appellant
in the vehicle. Mahlenche was seated next to the appellant
in the front passenger seat. It was common cause that Mahlenche was
in possession of an AK-47 rifle, the subject matter of the appeal.
There was some dispute as to whether the appellant was
aware of the
firearm in Mahlenche's possession. Mahlenche absconded during the
course of the trial. It was further common cause
that the appellant
at no stage had physical possession of the firearm and its
ammunition. The only question on appeal was whether
the State had
established that the appellant possessed the firearm jointly with
Mahlenche. Theron J held the following at 139,
para 5:
‘
[5]
The fact, that the appellant conspired with his co-accused to commit
robbery, and even assuming that he was aware that some
of his
co-accused possessed firearms for the purpose of committing the
robbery, does not lead to the inference that he possessed
such
firearms jointly with his co-accused."
[136]
In
the case of Ms Z N, all three perpetrators raped her. They used the
gun and the knives to subdue her. It formed part of their
arsenal to
commit their heinous acts. The facts of counts 4 to 6, in my view,
establish joint possession of a firearm and a finding
in respect of
count 7 is accordingly competent. The one rapist was holding the gun
jointly and on behalf of the other rapists so
that their objective
could be achieved, being the rape of Ms Z N. Similarly, in respect of
count 18, I find that Mr Ndziweni possessed
the firearm jointly with
his co-perpetrator ie his co-petrator was holding the gun on behalf
of both himself and Mr Ndziweni to
facilitate the offence.
[137]
In so
far as it is necessary to say so expressly, I find that Mr Ndziweni’s
testimony, insofar as it conflicts with that presented
on behalf of
the state, is rejected as false beyond a reasonable doubt.
[138]
In
the result I make the following order:
138.1.
Mr
Ndziweni is found guilty on counts 2 to 18 as charged.
138.2.
Mr
Ndziweni is found guilty on count 1 of robbery with aggravating
circumstances.
___________________________
I
OPPERMAN
Judge
of the High Court
Gauteng
Division, Johannesburg
Heard:
1 March 2017 to 5 April 2017
Judgment
delivered: 29 June 2017
Appearances:
The
State: Adv Kowlas
For
the Accused: Adv Bosiki