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[2020] ZAGPJHC 344
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S v Makhathini (SS294/2004) [2020] ZAGPJHC 344 (9 September 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO
: SS294/2004
DATE
:
06/10/2005
DATE
9/9/2020
In
the matter between
STATE
And
JAMES MAKHATHINI
JUDGMENT
LABUSCHAGNE
,
J
: Before this matter proceeded, Mr Dicker, on behalf of
the State withdrew Counts 1, 2, 9 and 10. The accused was
therefore
charged with Count 3 to 8. These counts related to
robbery with aggravating circumstances and rape.
·
In Count
3 the State alleges that on 14 January 1997 and near Park
Station in Johannesburg the accused unlawfully and intentionally
assaulted,
N[…] M[…] N[…], and with force and
violence he took from her possession R150 cash, aggravating
circumstances
being present.
·
In Count
4 it is alleged that at the same time and place the accused
had sexual intercourse with Ms N[…] without her consent.
·
In Count
5 the allegation is that on 7 December 1997 and at Noord
Street, Johannesburg the accused robbed, Elizabeth Fafuri [?],
inter
alia
of a pair of earrings, aggravating circumstances being
present.
·
In Count
6 it is alleged that at the same time and place the accused
had sexual intercourse with Ms M[…] without her consent.
·
In Count
7 the allegation is that on 13 June 1999 and at or near
Twist Street, Hillbrow the accused robbed, T[…] G[…]
M[...],
of her earrings, R100 cash and her wristwatch, aggravating
circumstances being present.
·
In Count
8 the allegation is that the accused on the same and place
had sexual intercourse with Ms M[…] without her consent.
The accused pleaded not
guilty to all the counts and he elected to remain silent. Mr
Shlazo appeared on his behalf.
The first witness called
by the State relates to Counts 7 and 8. That is the evidence of
T[…] G[…] M[…].
She told us that on 13
June 1999 after approximately 18H00 she was in the vicinity of the OK
Bazaars in Hillbrow. She bought
vegetables from one of the
street venders. As she turned around she was approached by a
black male person who bumped into
her. This man came to her and
asked her why she had bumped him. He also asked her why she had
not apologised.
Although he had bumped into she apologised.
The accused was not
satisfied and grabbed her right arm and turned it behind her back.
He whispered to her that she should
go with him or else he would
shoot her. According to her he pressed the firearm in her
back. She did not however see
the firearm. He then pushed
her in the direction Kotze Street. There were street lights
along the way and she looked
at his face.
The accused took her into
a dark passage where he told her to face the wall. He took her
earrings, her watch and cash.
After that he pulled down her
panty. He pushed her forward and told her to bend down.
Thereafter the accused raped
her from behind. It was very
painful. After he had ejaculated he swore at her and told her
to
voertsak
. She ran away and went to her flat.
She was in an emotional
state. She was very traumatised and she was crying. She
took a bath and later on met her boyfriend,
Sam Mothlapogwane.
She told him everything. He is an inspector in the South
African Police and the following morning
they went to the police
where she made a statement. She was also taken to the doctor
who examined her. She was still
bleeding from her private
parts. Later on, on 14 August 2002 she attended an
identification parade which was held at Leeuwkop
Prison where she
pointed the accused out.
As far as the effect of
this incident on her was she said that she did not trust men anymore
and for two years afterwards she was
unable to have a steady
relationship with anybody. She was employed at Tiberius Fish
Importers in Sandringham where she worked
for quite some time.
In cross-examination I
was put to her that the accused had met her once before at the Rovo
Hotel where she operated as a prostitute.
The accused made use
of her services. Although the agreed fee was R50 he only paid
her R30 for her services and that may
be the reason why she had laid
this false charge against him.
The second witness was
Inspector Samuel Mothlapogwane. He at the time was stationed in
the Norwood Police Station. He
corroborated the evidence of Ms
M[…] in all material respects.
As far as Counts 5 and 6
are concerned, Ms E[…] F[…] [?] gave evidence. On
7 December 1997 at approximately
Twenty to 9 in the evening she was
in the Joubert Park area. She was on her way to work at the
Fontana Supermarket. She worked
the nightshift. She went into
Bok Street. She thought she was late and she was running at the
time. She saw a
person who blocked her way. This man
asked her why she had bumped against him. She wanted to know
where he was because
she did not bump into anyone. He then
asked her if she did not respect children. He referred to her
as “mama”.
She then agreed to apologise. The
accused was not satisfied and said to her let us go.
She saw the face of the
accused very well. When she looked at the accused he had a gun
on the left side of his vest and she
went with the accused. She
saw three boys down the street. They came towards them and they
took her bag. These
boys also had guns in their hands.
She was very afraid and thought that she was going to die. They
took her into a
dark place where they asked her certain questions.
They threatened to kill her if she lied to them.
She heard the voice of
the man who bumped into her. It was too dark to see properly.
This man asked her if she had money.
She only had very little
money on her. The men searched her bag. They took her
earrings. Thereafter they took
down her panty and she was
ordered to kneel down or to bend forward, then one of the men raped
her from behind.
She identified the man
who raped her as the same man who had the same voice as the one who
alleged that she had bumped into him.
The rape was very painful
and afterwards she ran to her workplace. The police were phoned
and they came to her workplace
where she made a statement.
During August 2002 she
attended an identification parade at the Leeuwkop Prison where she
positively identified the accused.
She said that this incident
was a very bad experience for her. She continuously thought
that she could be HIV positive.
She was so afraid that she
never returned to her work where she had worked for seventeen years.
In cross-examination it
was again put to her that she also operated as a prosecutor at the
Rovo Hotel but the accused did not pay
her enough and that may be the
reason why she had laid false charges against him. She was very
upset because of this allegation
and denied it vehemently.
Ms N[…] M[…]
N[…] testified in regards to Counts 3 and 4. On 14
January 1997 at approximately Ten
past 8 in the evening she was in
the vicinity of the Park Station in Johannesburg. She was from
her homeland and she wanted
to know where Tembisa was. Whilst
walking in the street two black men approached her. One stood
on her foot.
He said to her sister you bumped me and you did
not apologise. She said I am sorry I did not see you and she
apologised.
Then one of the men took out a firearm and she was
told to go with them.
She was taken into a dark
passage where they demanded money from her. She had R150 in
cash on her which was taken. She
did not see the faces of these
two men properly because she was told not to look at them. Then
the one who had tramped on
her foot ordered her to bend forward and
to put her hands on the wall. Her eyes were covered. A
cloth was placed on
her mouth. She was undressed and both men
raped her from behind. The second man however did not finish as
a third man
arrived on the scene and told them to go.
Again, she said it was
very painful to her and that she was injured. She was left in
the dark alley and the men ran away.
She went out of the alley
screaming. She met a policeman. She told him what had
happened to her. The policeman
tried to catch the men. He
was unsuccessful and he took the complaint to the police station
where she made a statement.
She too was examined by a
doctor. She was very frightened after this incident. She
could not sleep at night and she
did not want to see a man. She
in fact separated from her boyfriend and could only have a proper
relationship approximately
five years afterwards. She could not
identify any of her attackers, and the policeman who had tried to
assist her, his identity
could not be established.
Certain admissions were
made in terms of Section 220 of the Criminal Procedure Act which were
properly recorded. Firstly,
it was admitted that the
identification parade was done properly. EXHIBIT C, the report
of the medical examination of Ms
M[…] was also handed in by
consent. The correctness of the report is not disputed.
EXHIBIT D relates to the
medical report of Ms N[…] and EXHIBIT
E is the medical report relating to Ms M[…].
It was furthermore
admitted that:
1.
The swabs and smears taken from Ms F[…] were properly
sealed
until opened by an analyst of the forensic laboratory in Pretoria.
2.
The control blood specimen of the accused was properly taken
and
sealed until opened by an analyst.
The evidence of
Superintendent Thompson, a DNA Analyst, was not disputed and it is
not necessary to deal with her evidence in any
detail.
Before the State case was
closed Superintendent Linde gave evidence and he basically confirmed
that the policeman who had come to
the assistance of Ms N[…]
could not be found.
That concluded the State
case.
The accused testified
that all three complainants were prostitutes who operated in the
Europa Hotel. He admitted having had
sexual intercourse with
them. According to him their fees were R50 for each case.
He however only paid them R30 after
he had used their services and
because of this fact they must have laid false charges against him.
He denied that he had
robbed and raped any of the complainants.
The onus to prove its
case beyond a reasonable doubts rests on the State. There is no
onus on the accused. If his version
is objectively considered
reasonably true he must get the benefit of the doubt and cannot be
convicted. It is this Court’s
function to consider the
totality of the evidence in the light of the probabilities in order
to find whether the State had in fact
proved the accused.
This approach was
confirmed by the Supreme Court of Appeal in
S v Tshabalala
2003 (1) SACR 134
(SCA) where the following was said at 139 (I-J):
“
The correct
approach is to weigh up all the elements which point to the guilt of
the accused against all those which are indicative
of his innocence,
taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides,
and having done so
to decide whether the balance weighs so heavily in favour of the
State as to exclude any reasonable doubt about
the accused’s
guilt.”
The complainants in this
matter impressed us as honest, decent and credible witnesses.
The accused was identified by Ms F[…]
and M[…].
Ms N[…] did not identify the accused, but then in his own
evidence the accused admitted that he had
had sexual intercourse with
her.
The evidence of all three
complainants are corroborated in all material respects by the
objective medical evidence and by some of
the other witnesses.
We have no hesitation whatsoever in accepting their evidence as
credible and reliable in all material
respects.
It is clear on the
evidence as a whole that the accused is a blatant liar. His
version is a clear fabrication and it is so
far-fetched and
ridiculous that we reject it as false. If any corroboration of
the identity of the accused is needed for
the evidence of Ms N[…]
it can, except for the admission made by the accused also be found in
the striking similarity between
the
modus operandi
adopted by
the accused.
In Counts 5 to 8 on the
one hand and that in Counts 3 and 4 the material similar facts in all
instances were the following:
·
The crimes
were committed in the same area in a radius of
approximately three kilometres.
·
The accused
would bump into a woman then allege that she had bumped
into him and he would tell her that she had not even apologised.
It did not matter whether they apologised or not as he would grab
them at that stage and he would take them at gunpoint to some
dark
alley.
·
There
the women were told to face a wall.
·
The complainants
were robbed of their jewellery and money.
Thereafter they were told to bend down.
·
Their
panties were pulled down and they were raped from behind.
Since the arrest of the
accused the incidents stopped.
Mr Slauzi [?] on behalf
of the accused argued that they were certain differences in the
modus
operandi
as other people were also involved in two of the
instances. That fact, however, considered in the light of the
totality of
the evidence does not in our view detract from the clear
and striking similarity of all the other factors mentioned above.
In any event, as pointed
out, the accused also admitted having had sexual intercourse with Ms
N[…]. His identity was
therefore not seriously
disputed. On the totality of the facts and probabilities of
this matter we find that the State has
proved all the essential
elements of the alleged charges against the accused beyond a
reasonable doubt.
The accused is therefore
CONVICTED
on Counts 3 to 8 as charged.
…………………………
..
LABUSCHAGNE,
JP
JUDGE
PRESIDENT OF THE HIGH COURT
DATE
:
9/9/2020