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[2018] ZAGPJHC 109
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S v Ganca (SS162/2016) [2018] ZAGPJHC 109 (7 February 2018)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER : SS162/2016
Not
reportable
Not
of interest to other judges
Revised.
7/2/2018
In
the matter between:
THE
STATE
and
MTHUNDEDZI
GANCA
ACCUSED
JUDGMENT
DOSIO AJ:
INTRODUCTION
[1]
The accused is arraigned on three counts. The first count is one of
kidnapping. Count 2 is a charge of rape in terms of section
3 of the
Sexual Offences and Related matters Amendment Act 32 of 2007, and
count three is a charge of murder as envisaged in terms
of section 51
(1) of the Criminal Law Amendment Act 105 of 1997 (hereinafter
referred to as the Criminal law Amendment Act).
[2]
In respect to count one, the State alleges that on the 1
st
of January 2016 at or near Palm Ridge, in the district of Ekurhuleni
Central, the accused deprived N. M. (“the deceased”)
of
her freedom of movement. In respect to count 2, the State alleges
that on the same date and place, the accused raped the deceased
by
penetrating her vagina with his penis without her consent. In respect
to count 3, the State alleges that on the same date and
place the
accused killed the deceased.
[3]
Prior to the accused pleading, the court apprised him of the
provisions of the minimum prescribed sentence of life imprisonment
in
respect to count 2 and 3. The court also apprised the accused of his
right to have an assessor as count 3 was a charge of murder.
The
accused elected to proceed without an assessor.
[4]
The accused is represented by Mr Nobangule and the State is
represented by Advocate Buitendag. The accused understood all 3

counts and pleaded not guilty in respect to all 3 counts. No plea
explanation was made and neither were any admissions made.
[5] At the inception of the trial the
State handed in the following exhibits;
1.A set of photos,
and a sketch plan compiled by Sergeant Vusumuzi Mfana Nkosi
which was marked
exhibit “A”.
2.An affidavit
pertaining to the identification of the body of the deceased which
was
identified
by her mother, namely, X. M marked as exhibit “Bi”.
3.An affidavit in
terms of section 212 (7) of the Criminal Procedure Act 51 of 1977
(“Act
51
of 1977”), compiled by David Makoropetse Thipa stating that the
body of the
deceased
was pointed out to him by X. M.. This was marked as
exhibit “Bii”.
4.An affidavit
compiled in terms of section 212 (4&8) of Act 51 of 1977, in
respect to the
post-mortem
report complied Dr Emefa Abra Apatu, which was marked as exhibit
“
Biii”.
5.An affidavit
compiled by Khakhathi Ndivhuwo Nevondo, who received the body of the
deceased from
constable Ndlovu on the 2
nd
of January 2016, marked as exhibit “Biv”.
6.An affidavit
compiled by Hennie Moyane, who received the body of the deceased
from the forensic
officer Nevondo on the 4
th
of January 2016, marked as exhibit “Bv”.
7.An affidavit
compiled in terms of section 212 of Act 51 of 1977, in respect to the
DNA
results
which was compiled by warrant officer Lureshni Naidoo, marked as
exhibit
“
Ci”
8.An affidavit
compiled by Selina Khelina Mahlangu in terms of section 212 of the
Criminal Procedure
Act stating
that she received one sealed evidence bag with
reference number
PA5001810809 from constable Moloi. This statement was marked
as exhibit “Cii”.
9.An affidavit
compiled by Michelle Pheiffer in terms of
section 212
of Act 51 of
1977 stating that
she received one sealed evidence bag with reference
number
PA5001810809. This statement was marked as exhibit “Ciii”.
10. An affidavit
compiled by Sihawusenkosi Ignatius Manzini in terms of section 212 of
Act 51 of 1977
stating that he received various sealed evidence bags and guard
boxes. This
statement was marked as exhibit “Civ”.
11.
An additional
affidavit compiled in terms of section 212 of Act 51 of 1977, in
respect to
the
DNA results which was compiled by warrant officer Lureshni Naidoo,
which was
marked
as exhibit “Cv”
12.A statement
complied by Geofrey Sipho Masanabo marked as exhibit “Di”.
13.A copy of a SAP
13 register marked as exhibit “Dii”.
14.A statement
compiled by constable Gleden Phala marked as exhibit “Diii”.
15.A statement
compiled by Gladys Mbuyisa marked as exhibit “Div”.
16.An abridged
death certificate pertaining to Gladys Mbuyisa marked as exhibit “Dv”
17.A statement
compiled by Gladys Mbuyisa marked as exhibit “Ei”.
18.An affidavit
compiled by Hennie Moyane pertaining to various specimens that were
removed from the
body of the deceased. This statement was marked as exhibit “Eii”.
19.An affidavit
compiled by Cornelius Johannes Nel stating that he removed various
specimens and
transported them to Lt.Col G.M Mbuyisa. This statement was marked
as exhibit “Eiii”.
20.An affidavit
compiled by Lt.Col G.M Mbuyisa stating that she received various
specimens on the
6
th
of January 2016 from C.J Nel. This statement was marked as
exhibit “Eiv”.
21.An affidavit
compiled by Vusumuzi Mfana Nkosi stating that he handed over the
exhibits in sealed
bag number PA5001810809 to constable Melba Moratuwa Moloi on
the 19
th
of January 2016. This statement was marked exhibit “Fi”.
22.An affidavit
compiled by Melba Moratuwa Moloi stating that a sealed package was
handed over to S.K
Mahlangu on the 19
th
of January 2016. This statement was marked
as
exhibit “Fii”.
THE
EVIDENCE
[6]
The State called 11 witnesses. They were as follows; Detective
Segeant Makfe Seroke, X. M., Philasande Jennelee Mbane, Mbekiseni

Justice Cebekhulu, Doctor Emefa Abra Apatu, Neo Lebeko, Constable
David Sphiwe Ndlovu, Constable Geofrey Sipho Masanabo, Constable

Matlou Gleden Phala, warrant officer Lureshni Naidoo, and Khakhathi
Ndivhuwo Nevondo.
[7]
This court will summarise the evidence of the witnesses by dealing
with each of the witnesses who were at the scene first and
then I
will summarise all the chain evidence pertaining to the conveyance of
the body of the deceased from the scene to the government
mortuary,
as well as the chain evidence pertaining to the DNA, blood, buccal
and DNA evidence obtained and examined.
[8]
Detective Seroke testified that he has 19 years experience in the SAP
and is stationed at Eden Park SAP. On the 2
nd
of January 2016, he was on duty as a detective and attended a scene
where a girl was found raped and murdered. When he arrived
at the
scene which was in extension 3, Palm Ridge, a group of people had
already gathered there. Members from the uniform branch
of the police
were also there. He entered a shack and saw the body of a child lying
supine with her legs spread apart. Next to
her was a used condom. The
child’s underwear was found next to her body.The official
photographer was contacted. The uniform
branch of the police had
already cordoned off the scene with a tape. When he arrived there,
the accused had already been apprehended
and taken to the police
station.
[9]
X. M. testified that on the 1
st
of January 2016, she took the deceased with her to
go
and fetch her grants and returned in the late morning around 12h00.
On arrival, she
heard
that the accused had come past to borrow a spade. The deceased went
out to
play
with the children outside. She last saw the deceased around past
three that
afternoon.
[10]
When her live in partner was getting ready to go to work, around
16h00, she asked him
to
call the deceased so that she could bathe her. Her live-in partner
went out to look for
her
and returned, stating he could not find her. She then requested the
deceased’s
younger
brother, Simphiwe, to go out and look for her. He too returned
stating he could
not
find her. She then bathed herself and went out to look for the
deceased. She
went
to the deceased’s paternal family as she thought maybe her
father had come past
and
taken her to extension 1. At the paternal house they stated they had
not seen the
deceased.
She then went to the accused’s sister’s place who is
called Nokuzula, as the deceased used to play with Nokuzula’s

child. The burglar door was still locked at Nokuzula’s house.
[11]
She then met up with Philasande Mbane who told her she last saw the
deceased
standing
next to the fence talking to the accused. They then found Mbekiseni
Justice
Cebekhulu
(“Cebekhulu”) and related the story to him. They decided
to phone the police
instead
of going to confront the accused. Cebekhulu later approached the
boyfriend of
the
accused’s sister, whose name is Koleka, who lived in the
adjoining shack to that of
the
accused. The boyfriend was asked if they could search the shack
belonging to the
accused,
as the accused was not there. After the door of the accused’s
shack was
opened
she went to lean against a wall as she felt weak. She then heard
people
screaming
in the shack and she was prevented from entering the shack. She was
later
told
her child was naked and was not breathing. She then went home to
fetch clothes for
her
child as she was under the impression her child was still alive. The
police arrived
and
entered the accused’s shack. When they exited they did not tell
her anything. It is
only
once she saw the government mortuary vehicle arriving that she
concluded that her
child
was no longer alive. She later visited the mortuary to identify the
body of the
deceased.
She stated no one was given permission to remove her child out of her
custody.
[12]
Philasande Jennelee Mbane testified that on the 1
st
of January 2016, she was coming
back
from work when she saw the accused from a distance. He was holding
the
deceased
and then put her down, after which the deceased followed the accused
in the
direction
where the accused resides. This witness was standing 30-40 meters
away
from
the accused when she observed this. She estimated the time as being
around
16h30.
She then proceeded to her place of residence. This witness knew the
deceased
well
as she used to play with her daughter. Later that day, the deceased’s
mother came
t
o
her looking for the deceased. This witness told the deceased’s
mother that she had
seen
the deceased with the accused earlier that afternoon. They both then
approached
Cebekhulu
to accompany them to the premises of the accused. They then found a
man
in
the shack adjoining that of the accused who gave them permission to
search the
accused’s
shack. The shack was opened and Cebekhulu lifted the bed and the
deceased’s
body was found underneath. She did not see the accused later that
evening.
[13]
Cebekhulu testified that at 9pm on the 1
st
of January 2016 he was on his way to his
place
of residence when the deceased’s mother sent one of her
children to enquire
if
the deceased had come to his place. He then came across the
deceased’s mother and
Philasande
Mbane. They approach Koleka and her boyfriend. Koleka and her
boyfriend lived in the shack adjoining the accused’s
shack.
They
knocked on the accused’s door but there was no response. Koleka
then pushed the door open. This witness lifted the bed
cover and he
found a palm protruding from under the bed. He then removed the cover
of the bed and lifted the bed, after which the
body
of the deceased was found lying on the floor beneath the bed. The
accused was
found
by the police at a tavern and was brought back to the scene.
[14]
Neo Lebeko testified that on the 1
st
of January 2016 he saw the accused returning a
spade
to the deceased’s house at 3pm. This witness then left to go
and see his
girlfriend.
He returned at 6pm. The deceased’s mother asked him if he had
not seen
the
deceased. He said “no” and left. He returned at 8pm where
he was informed the
body
of the deceased had been found. The accused was not present.  A
certain man
knew
where the accused could be found and they went to this tavern. The
accused
was
in that yard and when he saw them he ran into the house, however the
owner of the
house
chased him out. The time was past twelve pm. This witness personally
enquired
from
the accused what he had done and the accused answered “he did
not know what
he
was doing”. The accused was smelling of alcohol but he was not
showing signs of
being
drunk.
[15]
During cross-examination of this witness, he agreed that the
community did assault the
accused,
in fact he admitted he also slapped the accused. The version put to
this
witness
is that the accused denied having answered this witness when he was
asked
what
had he done, or that he had run into the house.  This witness
did not change his
version.
[16]
Doctor Apatu testified that she qualified with a medical degree in
2005 at the University
of
Pretoria. Whilst employed at the forensic pathology services in
Germiston, she
conducted
a post-mortem report on body Dr12/2016 on the 4
th
of January 2016. The
body
was pointed out to her by officer Moyane of the government mortuary.
The body
was
that of a female child and she was informed the death had occurred on
the 2
nd
of
January
2016. The child was partially clothed with abrasions on the right
side of the
neck
and there was evidence of trauma to the genitalia. The cause of death
was
consistent
with pressure on the neck. There was a 2cm x 1 cm linear abrasion on
the
right
upper neck and a 3cm x 0.2cm linear abrasion on the right lower neck.
These
abrasions
were possibly caused by a thin item or rope that was wrapped around
the
neck.
The abrasions are clearly seen on photos 13, 14 and 15 of exhibit
“A”.  A deep
haemorrhage
in the right anterior of the tongue was also noted. Doctor Apatu
stated that
when
there is pressure on the neck, the tongue is forced against the teeth
or gums
which
would have caused this haemorrhage. The lungs were intact and showed
multiple
subpleural
petechiae. There were haemorrhages in the inferior upper and lower
lobes of
the
right lung. Doctor Apatu testified that the petechiae are pin point
haemorrhages that
are
caused by pressure on the neck. The haemorrhage in the right lung was
also
caused
by pressure on the lung and rib cage disallowing the child to exhale.
The hymen
was
not intact and showed a fresh tear at the 7 o’ clock position.
This tear would have
been
caused by trauma to the genitalia, which was caused either by a
penis, or
penetration
by some other object. There was bruising of the labia minora which
would
have
been caused if the penetration was rough. According to doctor Apatu,
the
penetration
would have been painful.
[17]
Various specimens were obtained by Dr Apatu for DNA analysis. Blood
was obtained
which
was marked with seal number PMK261297. A paediatric sexual assault
evidence
collection
kit was obtained and marked with the following numbers; 13D7AC7917,
PAD000680926, and
PA4001461355. A sexual assault evidence collection kit was also
obtained with seal
numbers 15D2AB0905 and PA4002317172. An anal swab marked
with seal number
PA4001461355 was also obtained. Doctor Apatu testified that
although she did
not mention that there was anal penetration, she still took a swab
from
the
anus of this child. She explained that when she does the sexual
assault kit, she will
start
by taking a swab in the anus because there may be contamination from
the vagina
if
semen leaks out of the vagina.  She stated that even though a
condom was
possibly
used by the perpetrator, often ,due to the size difference between an
adult’s
penis
and a child’s vagina, when the adult removes his penis, the
condom can partially
dislodge
and the contents may leak into the anal area.  The foam coming
out
of
the child’s nose,  which is seen clearly on photo 13 of
exhibit “A”, was caused by
pressure
on the neck, resulting in a decreased return of blood to the heart.
This would
have
caused that the lungs would have filled up with fluid and the fluid
would come out
of
the airways.
[18]
The cause of death was consistent with pressure to the neck which
would have occurred
due
to pressure on the corotoid bodies of the neck. If these corotoid
bodies were
stimulated
hard enough, they would send a signal to the heart which would slow
down
the
beating of the heart. In addition there would also be decreased blood
and oxygen to
the
brain which would cause the death. In this case pressure must have
been applied to
the
neck for a few minutes.
[19]
The witness constable David Sphiwe Ndlovu testified that he is
employed at the
Eden
Park SAP and he has 9 years experience. On the 1
st
of January 2016 he was
called
out to a scene at Izindlebe street where he was informed the body of
deceased,
was
discovered. He was shown a condom on the floor. He guarded the body
at the
scene
and it did not sustain any further injuries and no one tampered with
the scene. He
handed
the body of the deceased over to the forensic officer Nevondo.
[20]
The witness constable Geofrey Sipho Masanabo, testified that he is a
detective and has
been
employed in the SAP for 9 years. On the 4
th
of January 2016 he took the buccal
samples
from the accused and then immediately placed them into an evidence
bag with
seal
number PA4000210814C and sealed it. He then booked it into the SAP 13
register.
[21]
The witness constable Matlou Gleden Phala testified that he is
employed at the
Eden
Park detective branch and has 7 years experience. He testified that
on the 13
th
of
January
2016 he received an exhibit from captain Mbuyisa and prepared it for
forensics. He took
it to forensics on the 14
th
of January 2016. It was 1 exhibit bag with
seal
number PA4001461355 with a sexual kit, 1 exhibit bag with seal number
PA4002317172
with blood DNA analysis, 1 exhibit bag with seal number
PAD000680926
containing clothing, and 1 exhibit bag with seal number PMK261297
containing blood
DNA, 1 exhibit bag with seal number PA4001739839 containing a
panty and T-shirt,
1 exhibit bag with seal number PA4000210814C containing a buccal
swab sample, and 1
exhibit bag with seal number 1104AA44331EB. All were
taken to the
forensic science laboratory. This witness testified Captain Mbuyisa
is no
longer
alive and he handed in a certified copy of the death certificate of
Captain
Mbuyisa.
[22]
The State brought an application in terms of section 3 (1) (a) and
3(1) (c) of the Law of
Evidence
Amendment Act 45 of 1998 to allow constable Phala to read in the
statement
of
Captain Mbuyisa. The court granted the application.
[23]
Constable Phala read into the record the contents of the statement of
Captain Mbuyisa which stated that on the 6
th
of January 2016 at 13h00 she received exhibits from CJ Nel
of the Government
mortuary. These exhibits were (i) blood DNA analysis with
seal number
PA4002317172, (ii) Sexual assault kit with seal number PA4001461355,
(iii) blood DNA
with seal number PMK261297 and (iv) clothing with seal number
PAD000680926.
Constable Phala then read into the record another statement of
Captain Mbuyisa
which stated that on the 7
th
of January 2016 at 11h20, she received
exhibits
from Captain Mhlophe which was a DNA kit with seal bag number
PA4000210814C and
with seal number 11DBAH4215XX. She handed them over to
detective constable
Phala on the 13
th
of January 2016. The exhibits were kept safely in
a
locked safe.
[24]
The State handed in section 212 statements pertaining to the chain
statements relating
to
the DNA evidence. The first statement was a section 212 (8) (a) of
Act 51 of 1977 statement compiled by Selina Khelina Mahlangu
which
states that she received 1 sealed
bag
with seal number PA5001810809 marked with “Eden Park
12/01/2016” from
constable
Moloi which she handed over to the Forensic Science laboratory. The
seal
was
still intact. The second statement was a section 212 (4)(a) statement
compiled by
warrant
officer Michelle Pheiffer, a forensic analyst, which states that she
received 1
sealed
evidence bag with reference number PA5001810809 marked with “Eden
Park
12/01/2016”
from the administration component of the Biology Section of the
Forensic
Science
Laboratory which contained 1 condom. She examined the exhibit and
detected
the
presence of semen therein. The third statement was a section 212
(4)(a) statement
compiled
by warrant officer Sihawusenkosi Ignatius Manzini, a forensic
analyst, which
states
that he received various sealed evidence bags and guard boxes. Due to
the fact
that
this statement was handed in purely for the chain pertaining to DNA
samples, only
point
3.2.2 of his report and 3.6.1 were of importance. These two points
state that he
received
1 sealed swab guard box with reference number 13D7AC7917 marked
“Anal”
containing
1 swab and 1 sealed DB trans buccal reference sample kit with
reference
number
11DBAH4215XX containing 1 reference sample. He examined the exhibits
and
in
respect to the “Anal” swab, semen was detected.
[25]
The witness warrant officer Lureshini Naidoo testified that she is
employed by the SAP
attached
to the Biology Section of the Forensic Science Laboratory. She has a
BSc
honours
degree obtained from the university of the Free State. She stated
that warrant
officer
Manzini received the exhibits and checked that the seals were intact.
If he was
satisfied
that everything corresponded with the case files he would break the
seal and
test
the samples for the presence of semen. If they tested positive then
they would be
placed
into the DNA system and the machine would test the DNA. Once a result
was on the system, then this witness would extract
it and compile a
DNA report.
From
the time the sample was handled by warrant officer Manzini to when
she
examined
it, no one had tampered with it.
[26]
This witness explained that she evaluated the results and used nine
(9) areas to compare the DNA. The nine (9) areas were given

scientific names which were referred to as “D3S1358”,
“vWA”, “FGA”, “D8S1179”,

“D21S11”, “D18S51”, “D5S818”,
“
D13S317”,
and “D7S820”. Each region has two DNA pieces of fragment
sizes. One region is from the mother and the
other region is from the
father. The combination of all these short pieces of DNA, including
the gender marker, constituted a unique
DNA profile of an individual.
[27]
This witness proceeded to explain the first line of table 1 on page 2
of exhibit “Ci”.
She
stated that the gender marker X:Y referred to the male gender,
whereas
the
X:X referred to the female gender. The reference sample taken to the
laboratory was
X:Y,
therefore it referred to the male gender. The “Anal” swab
also depicted the gender marker X:Y, therefore it matched
showing it
was also a male donor.
[28]
In respect to the nine (9) STR-LOCI regions, the same results for
both the reference
sample
and the “Anal” swab were obtained in 7 of the 9 regions.
The first region, namely
D3S1358
was 14:15. The second region, namely vWA was 15:15. The third region,
namely FGA was
19:25. The fourth region, namely, D8S1179 was 11:13. The fifth
region, namely
D21S11 was 28:29. The seventh region, namely, D5S818 was 12:13.
The eighth region,
namely D13S317 was 11:13.
The
sixth and ninth region, namely,
D18S51
and D7S820, only had results for the reference sample. This witness
explained
that
because there was an absence of results at the sixth and ninth
region, it was a
partial
DNA result. This would occur when they have DNA of a poor quality or
quantity.
Although
this diminishes the stats, she stated that they need a minimum of 7
results
including
the gender marker according to international standards to compile a
conclusive
result.
[29]
This witness stated that the DNA result for the “Anal”
swab 9PA4001461355[13D7AC7917]) “DR12/2016”
matched the
DNA result from the
reference
samples (PA4000210814C [11DBAH4215XX]) “Mthondezi” and
(11D4AA4431EB)
“Gangca M” at the corresponding loci. This witness stated
that the most conservative occurrence for the
DNA result from the
“Anal” swab (PA4001461355
[13D7AC7917]
“DR 12/2016” is 1 in 520 million people. Accordingly, the
chances that
the
same DNA would be found in another individual would be 1 in 520
million people,
accordingly,
it was very unlikely that this DNA belonged to another person other
than the
accused.
[30]
This witness was recalled by the State in terms of section 166 of the
Criminal
Procedure
Act. The reason being is that she had received a condom which when
she
tested
it, it was positive for the presence of semen. However, the results
of the DNA were not for tabulated. Accordingly, this
witness was
given an opportunity to formulate
the
results in a table and was recalled for this purpose.  She
returned after compiling an
additional
table which was incorporated and marked as exhibit “Cv”.
In this instance DNA was obtained at all 9 areas
as well as the
gender marker. Both the condom with seal
number
(PA5001810809) as well as the reference sample with seal numbers
(PA400021814C),
[11DBAH4215XX]) “Mthondezi” and (11D4AA4431EB) “Gangca
M”
showed
the gender marker X:Y which denoted the male marker and it was a
match. The
nine
STR-Loci also matched at all nine regions in both the condom and the
reference
samples.
The first area namely D3S1358 was 14:15, the second region, namely
vWA was 15:15, the third region, namely FGA was 19:25,
the fourth
region, namely, D8S1179 was 11:13, the fifth region, namely D21S11
was 28:29, the sixth region, namely, D18S51 was 17:20,
the seventh
region, namely D5S818 was 12:13, the eighth region, namely D13S317
was 11:13, and the  ninth region, namely S7S820
was 8:9 in both
samples. Accordingly the DNA result from the condom matched the DNA
of the reference sample. The statistical analysis
of the results
reflected that an individual who had this DNA would
be
1 in 460 billion people. This witness stated there are only between 7
to 8 billion
people
in the world, so accordingly, there is no chance that this DNA could
belong to
anyone
else, but the accused.
[31]
This witness impressed this court.
[32]
The witness Khakhati Ndivhuwo Nevondo testified that he is employed
at the Germiston Forensic Pathology Sevices as a forensic
officer and
has 7 years service. He stated that on the 2
nd
of January 2016 he received the body of the deceased from constable
Ndlovu and conveyed the body to the mortuary and attached the
number
12/2016 to the body. He identified the body to the forensic pathology
officer Moyane.
[33]
The witness Hennie Moyane testified that he is forensic officer based
at the Germiston pathology services. He stated that on
the 4
th
of January 2016 he received the body of the deceased with number
12/2016 from the forensic officer Nevondo. He also stated that
on the
4
th
of January 2016 he received the following specimens from Dr Apatu
which was removed from the body with serial number 12/2016. These

specimens were blood DNA with seal number PA4002317172, a sexual
assault kit with seal number PA4001461355, a further blood DNA

specimen with seal number PMK261297 and clothing marked with seal
number PAD000680926. He placed all these specimens into a sealed

container and deposited them in the locked specimen store room for
safe keeping.
[34]
The State closed their case.
[35] The accused elected not to
testify. He did not call any witnesses to testify on his behalf and
closed his case.
EVALUATION
OF THE EVIDENCE
[36]
There is no direct evidence to the crimes committed, however, the
State has presented evidence that on the afternoon when the
deceased
disappeared, the accused was seen returning a spade to the deceased’s
mother’s house and later was seen holding
the deceased. In
addition, the deceased was seen following the accused in the
direction where he lived. The deceased was found
raped and murdered
in the shack which belongs to the accused.  The post-mortem
results establish that the deceased was vaginally
penetrated. A used
condom was found next to the deceased’s body. The marks on the
neck of the deceased, as per the evidence
of Dr Apatu, is indicative
of a ligature being used to put pressure on her neck. The semen found
in the anal swab and the used
condom, conclusively matches the DNA
found on the buccal sample taken from the accused.
[37]
In the case of
R
v Blom
1939 AD 188
at 202 – 203 Watermeyer, JA stated the following:
“
In reasoning
by inference there are two cardinal rules which cannot be ignored:
(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.”
[38] In
S v Reddy and others
1996 (2) SACR 1
(A) at 8 - 9 the court stated that;
“
In assessing
circumstantial evidence...The evidence needs to be considered in its
totality…”
[39]
The law as expressed in
S
v Reddy
(
supra
)
was referred to with approval by the Supreme Court of Appeal on 1
June 2015 in
Modiga
v The State
(20738/14)
[2015] ZASCA 94.
[40]
This Court has considered the circumstantial evidence presented by
the State holistically, and no other inference can be drawn
from it,
except that the accused is the person who kidnapped, raped and
murdered the deceased.  The accused never testified,
neither did
he challenge the evidence presented from the State, accordingly,
there is no evidence from the accused to gainsay the
State’s
case. No explanation was given how the deceased entered his shack and
was found raped and murdered under his bed.
No explanation was given
how it was possible that his semen was found in the anus of the
deceased and also in the used condom.
Accordingly, a very heavy
burden was created against the accused by the evidence presented by
the State and this heavy burden was
not relieved in any way by
the accused.
[41]
The accused gave his legal representative no instructions to
cross-examine the State witnesses. In fact after each witness
was
finished, this court asked the accused if he had had understood the
evidence of the witnesses and whether he was accepting
their evidence
as being correct. This Court advised him of the negative inferences
the court could draw if he did not challenge
the evidence presented.
The accused stated he understood the evidence of the State witnesses,
but he had no questions.
[42] In the case of
S V Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC) the court held at paragraph [24] that;
“
The fact
that an accused person is under no obligation to testify does not
mean that there are no consequences attaching to a decision
to remain
silent during the trial. If there is evidence calling for an answer
and an accused chooses to remain silent in the face
of such evidence,
a court may well be entitled to conclude that the evidence is
sufficient in the absence of an explanation to
prove the guilt of the
accused. Whether such a conclusion is justified will depend on the
weight of the evidence.”
[43] In the case of
S v Hlongwa
2002 (2) SACR 37
(TPD) the court referred to the case of
S v Brown
en 'n Ander
1996 (2) SACR 49
(NC) and stated that;
“…
the
failure of an accused to testify on relevant matters within his
knowledge constituted a factor to be taken into account as adding

strength to the case against the accused.”
[44] In
S v Katoo
2005 (1) SACR
522
(SCA) at 529e the Supreme Court of Appeal made the situation
clear:
“
[if] …the
respondent failed to place any version before the Court by means of
evidence, the Court’s verdict should
have been based on the
evidence of the prosecution only.” [my emphasis].
[45]
It is not for the court to speculate or conjecture a version for the
accused. All the State witnesses impressed this Court.
They were
honest and reliable. This Court accepts their evidence as the true
version of events. All the chains in respect to the
conveying of the
deceased’s body to the government mortuary, as well as the
buccal samples of the accused, the DNA results
of the blood, the anal
swap from the deceased and well as the clothing were all complete and
there was no evidence or suggestion
of tampering of any of these
chain statements. The accused’s legal representative also did
not dispute or challenge same.
[46]
In light of the above and in the absence of a version presented on
behalf of the accused, this Court will accordingly base
its verdict
on the evidence presented by the State. On a conspectus of all the
evidence presented, a
prima
facie
case has been made out against the accused. In the absence of an
explanation by the accused, the evidence presented by the State

becomes proof beyond reasonable doubt.
[47]
By remaining silent, the accused has tacitly admitted either that he
was guilty or that he had no answer to the evidence against
him. The
accused's silence leaves the prosecution’s case undisturbed, as
there is no evidence to challenge it or explain
it away.
[48]
The proven facts and conclusive DNA evidence, together with the
injuries sustained to the deceased’s gynaecological area,
point
towards the accused as being the person who kidnapped, raped and
murdered the deceased on the 1st of January 2016. Accordingly,
the
State has proven its case beyond reasonable doubt.
[49]
Count 3 murder
The
accused has been charged with murder read with the provisions of
Section 51(1) and Part 1 of Schedule 2 of the
Criminal Law Amendment
Act which
relates to a planned or premeditated murder. Dr Apatu
testified that use was made of a ligature of some sort of string or
rope
to strangle the deceased. It is clear to this Court that the
accused had to find this ligature in order to strangle the deceased.

Whether he had the ligature at hand or had to go and find one after
her rape, the end result is the same, he pre-meditated killing
his
victim using this ligature.  The use of this ligature, together
with the luring of the deceased into his shack, and the
concealing of
the deceased’s body under the accused’s bed, are all
indicative that the accused planned to kidnap, rape
and murder the
deceased. Even if this Court is wrong in this respect, the fact that
the death of the victim was caused by the accused
whilst committing
the offence of rape, the offence would still fall within the ambit of
a
part 1
of schedule 2 offence.
[50] Accordingly this court finds that
the accused did deprive the deceased of her freedom of movement, and
raped her by inserting
his penis in her vagina. This Court also finds
that the accused murdered the deceased. There are no grounds of
justification for
the accused’s actions and the court finds
that he had the intention in the form of
dolus directus
to
kidnap, rape and murder the deceased.
FINDINGS
[51] In respect to count 1 the accused
is found guilty of kidnapping. In respect to count 2 the accused is
found guilty of rape.
In respect to count 3 the accused is found
guilty of murder as envisaged in terms of
section 51
(1) of the
Criminal law amendment Act.
_______________________
D DOSIO
ACTING JUDGE OF THE HIGH COURT
Date Heard: 6 February 2018
Judgment handed down: 7 February 2018
Appearances:
On behalf of the State: Adv T.
Buitendag
On behalf of the Accused: Mr Nobangule