Brief Summary

Criminal Law — Murder, Rape, Robbery, and Assault — Accused charged with multiple counts including murder, rape, robbery, and assault stemming from a home invasion on 29 July 2018 — Accused number one pleaded guilty to several counts but contested others, while accused number two pleaded not guilty — Court found that the plea statements did not sufficiently admit all elements of the offences and changed the pleas to not guilty — State presented evidence from multiple witnesses, including eyewitness accounts of the violent acts committed by both accused — Court ultimately ruled on the merits of the case, considering the evidence presented.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal trial on the merits in the High Court of South Africa, Gauteng Division, Johannesburg, arising from a violent housebreaking, robbery, sexual offence, and fatal stabbing that occurred in Turffontein during the early hours of 29 July 2018. The proceedings concerned the determination of guilt or innocence on multiple serious charges, some of which attracted the minimum sentence regime under section 51(1) of the Criminal Law Amendment Act 105 of 1997.

The parties were the State as prosecutor and two accused persons: Sphamandla Khumalo (Accused 1) and Berthwell Nkosi (Accused 2). Accused 1 initially entered a mixed plea, pleading guilty to certain counts and not guilty to others, while Accused 2 pleaded not guilty to all counts he faced. Both accused were legally represented on Legal Aid/Judicare instructions.

The procedural history was central to the conduct of the trial. Accused 1 tendered a written statement purportedly in terms of section 112(2) of the Criminal Procedure Act 51 of 1977, but the court was not satisfied that all elements of the relevant offences were properly admitted on facts. The court accordingly entered pleas of not guilty under section 113. The State then led evidence from 15 witnesses, including complainants, police witnesses, medical experts, and forensic analysts, and introduced documentary and real exhibits (including an identification parade form, a photo album, medical and post-mortem reports, and DNA-related affidavits). After the State closed its case, Accused 1 applied for a discharge under section 174, which was dismissed. Both accused testified in their defences and called no further witnesses.

The general subject-matter of the dispute concerned the identification and participation of Accused 2, the attribution of responsibility for the fatal stabbing of the deceased, and whether the accused acted in furtherance of a common purpose during a home invasion in which robbery, assaults, and a rape were committed.

2. Material Facts

The court treated several core facts as not in dispute. During the early hours of 29 July 2018 (approximately 01h00), the perpetrators broke a window at a residence in Great B[....] Street, Turffontein, and entered the house. The intruders were armed with knives and confronted the occupants, including D[....]1 D[....], her children (including Z[....] D[....], a minor), and Luciano Topers (the deceased). The intruders demanded and took three cellphones, with violence and threats involving knives forming part of the robbery.

It was also not in dispute that the deceased, Luciano Topers, was stabbed at the home and was declared dead at the scene by paramedics. The post-mortem evidence established that the cause of death was a stab wound to the left thigh that severed a major blood vessel. It was further not in dispute (on the evidence accepted by the court) that Accused 1 sexually penetrated Z[....] D[....], a 14-year-old complainant, without consent, and that medical examination findings were consistent with penetration.

Additional facts accepted by the court as established included that Accused 2 was positively pointed out by all three key eyewitness complainants at an identification parade, which was described by the relevant police witnesses as properly conducted and documented. The court also treated the DNA chain evidence and results as admitted, and the forensic evidence linked Accused 1 to genetic material relevant to the case.

The court identified the following issues as in dispute. The first dispute concerned who inflicted the fatal stab wound that caused the deceased’s death, given evidence that both perpetrators stabbed the deceased and that two knives were found at the scene. The second dispute concerned whether Accused 1’s conduct toward T[....] D[....] (the mother) amounted to attempted rape, based on evidence that he took her to a bedroom and pulled down her pants before stopping when called away. The third dispute concerned who stabbed Jermaine, one of the complainants who sustained a stab injury to his leg. The fourth and critical dispute concerned whether Accused 2 was present and participated in the home invasion at all, given his denial and alibi version, and whether the accused acted together in furtherance of a common purpose.

Chronologically, the court accepted that the intruders entered the home, assaulted and stabbed Jermaine and Luciano, robbed the complainants of their cellphones, and that Accused 1 took the minor complainant to another bedroom and raped her. Thereafter, the occupants discovered the deceased in the passage and emergency services attended, certifying death at the scene, while the rape complainant was taken for medical examination and the sexual offence evidence kit was collected, sealed, and stored for forensic processing.

3. Legal Issues

The central legal questions the court was required to determine concerned the criminal responsibility of each accused for the charged offences, particularly where some conduct was directly attributed and other conduct was alleged on the basis of common purpose. The court had to determine whether the State proved beyond reasonable doubt that both accused were present and actively associated in the commission of the offences, and whether the requirements for liability under common purpose were met for the murder and robbery-related conduct.

A further set of issues related to the proper approach to identification evidence, particularly the reliability of an identification parade and the weight to be given to eyewitness accounts in the context of a traumatic home invasion. The court also had to decide whether the evidence established the elements of attempted rape in respect of the complainant mother.

In addition, the court was required to make determinations involving the application of law to fact regarding duplication of convictions. This required deciding whether certain charges should result in separate convictions, or whether convictions would amount to duplication because the offences were part of a single transaction or because one charge was competently subsumed within another.

Overall, the dispute involved mixed questions of fact (presence, participation, what each accused did), law (common purpose; duplication of convictions; admissibility principles), and the application of legal standards to the proven facts (including proof beyond reasonable doubt and the inferential reasoning relevant to attempt).

4. Court’s Reasoning

The court approached the merits on the basis that the State bore the onus to prove guilt beyond reasonable doubt, and that no onus rests on an accused to prove innocence. In evaluating conflicting versions, the court applied the accepted approach of weighing all evidence pointing to guilt against that indicative of innocence, considering inherent strengths and weaknesses, probabilities, and improbabilities, and then determining whether the State’s case excluded reasonable doubt.

On the participation of Accused 2, the court relied on a combination of factors. It accepted the testimony concerning the identification parade, including evidence that it was properly conducted, that the lineup consisted of nine persons, and that Accused 2 was identified by all three complainant witnesses even after changing clothing and positions. The court considered the complainants’ evidence that Accused 2 wore only a beanie during the incident and that they would not forget his face, and it treated this as supportive of reliable identification in context.

The court also accepted the investigation officer’s evidence that, after Accused 1 was linked through DNA and arrested, Accused 1 pointed out Accused 2 as the person who was with him during the incident. The court further accepted Accused 1’s testimony under oath that Accused 2 suggested the break-in and that Accused 2 entered the house with him. In this context, the court referred to section 196(2) of the Criminal Procedure Act 51 of 1977, emphasising that evidence given by an accused in his own defence at joint proceedings is not rendered inadmissible against a co-accused merely because it is incriminating. The court noted that Accused 1’s incriminating evidence regarding Accused 2 was not challenged in cross-examination by Accused 2’s counsel.

On the murder charge, the court accepted that there was evidence from complainants that both accused stabbed the deceased, that two knives were present at the scene, and that the deceased died from a stab wound to the left thigh. The court reasoned that even though the evidence did not establish precisely which accused inflicted the fatal left-thigh wound, the evidence supported a finding that both accused acted in the furtherance of a common purpose and were actively associated with the stabbing assault that culminated in death. It applied the requirements for common purpose as formulated in the relevant authority and found them satisfied because both were present, aware of what was happening, and took part in the assault. The court also reasoned in relation to intention that intention to kill does not require a direct will to cause death, and that it is sufficient if an accused subjectively foresaw the possibility of death ensuing from the conduct and was reckless as to that result, which the court treated as consistent with a finding of dolus eventualis on the proven facts.

On the rape charge, the court relied on the complainants’ evidence describing how Accused 1 took the minor complainant to another bedroom and raped her, the medical evidence documenting injuries and findings consistent with penetration, and Accused 1’s own admissions that he had sexually penetrated the complainant without consent. The court also referred to the evidentiary relevance of the complainant’s first report as indicative of consistency of conduct, rather than as independent corroboration of the incident.

On the attempted rape charge, the court accepted the mother complainant’s evidence that Accused 1 grabbed her, took her to another bedroom, and pulled down her pants before leaving because Accused 2 called him. The court reasoned that an attempt is established where there is an intention to commit the offence coupled with a direct but ineffective step toward its commission, and it treated the removal of clothing and the interruption by another as consistent with an attempted rape where penetration did not occur.

The court’s reasoning also addressed duplication of convictions. It held that convictions on the assault charges (counts 5 and 6) would amount to duplication because assault with intent to do grievous bodily harm was regarded as a competent verdict on the murder and robbery-related conduct in the circumstances. Similarly, the court found that the housebreaking and robbery-related charges were committed with a single intent and formed part of the same transaction, and that the offences in the relevant counts should not attract separate convictions in a duplicative manner. It therefore treated the matter as warranting conviction on a composite housebreaking-with-intent-to-rob-and-robbery count, rather than separate convictions on overlapping counts.

In assessing credibility and reliability, the court stated that the three complainants made a favourable impression and that their evidence was clear, satisfactory, and reliable in material respects. It recognised that minor contradictions were to be expected in a stressful incident. By contrast, it rejected both accused persons’ versions in toto, characterising Accused 2’s defence as a bare denial and finding aspects of his version internally inconsistent and improbable when considered with the identification evidence and other contextual factors referred to in the judgment.

5. Outcome and Relief

The court convicted Accused 1 (Sphamandla Khumalo) of murder (dolus eventualis) read with section 51(1) of the Criminal Law Amendment Act 105 of 1997 (count 1), rape in terms of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 read with section 51(1) of Act 105 of 1997 (count 2), attempted rape (count 3), and housebreaking with intent to rob and robbery with aggravating circumstances (count 7 as treated by the court). Accused 1 was acquitted on counts 4, 5, and 6.

The court convicted Accused 2 (Berthwell Nkosi) of murder read with section 51(1) of the Criminal Law Amendment Act 105 of 1997 (count 1) and housebreaking with intent to rob and robbery with aggravating circumstances (count 7 as treated by the court). Accused 2 was acquitted on counts 4, 5, and 6.

The judgment dealt with the merits and convictions and did not record a separate sentence or a costs order in the portion provided. The court also recorded that the section 174 application brought by Accused 1 in respect of count 3 was dismissed.

Cases Cited

S v Combrink 2012 (1) SACR 93 (SCA)

S v Chabalala 2003 (1) SACR 134 (SCA)

S v Mgedezi and Others 1989 (1) SA 687 (A)

S v Hammond 2004 SACR 303 (SCA)

S v Benjamin and Others 1980 (1) SA 950 (A)

Bam v S 2020 SACR 584 (WCC)

Legislation Cited

Criminal Law Amendment Act 105 of 1997, section 51(1) (and Schedule 2 as referenced)

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, section 3

Criminal Procedure Act 51 of 1977, sections 1 (definition of “aggravating circumstances” as referenced), 112(2), 113, 115, 153, 174, 196(2), 212 (including section 212(8)), and 262

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the State proved beyond reasonable doubt that both accused participated in the home invasion and were criminally responsible for the offences falling within their common purpose, including the murder of the deceased notwithstanding uncertainty as to which accused inflicted the fatal thigh wound.

The court held that Accused 1 was proved to have raped the minor complainant and that his conduct toward the mother complainant constituted attempted rape on the evidence accepted. The court further held that convictions on certain assault and overlapping robbery/housebreaking counts would amount to duplication of convictions, resulting in acquittals on the duplicated counts and conviction on the composite count.

LEGAL PRINCIPLES

The judgment applied the principle that the State must prove guilt beyond reasonable doubt, and that an accused bears no onus to prove innocence, with the evaluation of evidence requiring a holistic weighing of inculpatory and exculpatory factors to determine whether reasonable doubt remains.

It applied the principle that dolus eventualis is established where an accused subjectively foresees the possibility that conduct may cause death and nevertheless proceeds recklessly, without requiring a direct intention to kill.

It applied the doctrine of common purpose, including the requirements for active association (as articulated in the cited authority), to hold co-perpetrators liable for consequences of the agreed criminal enterprise where they are present, aware of the conduct, and participate in furtherance of the common design.

It applied principles concerning attempt, treating an attempt as constituted by an intention to commit the crime and a direct step toward commission that is ineffective or interrupted, and treated attempted rape as capable of proof where conduct shows progression toward non-consensual intercourse without penetration.

It applied section 196(2) of the Criminal Procedure Act 51 of 1977 to treat incriminating evidence given under oath by one accused in joint proceedings as not inadmissible against a co-accused, and it relied on this alongside identification evidence in assessing Accused 2’s presence and participation.

It applied the approach to duplication of convictions, including tests focusing on whether offences were committed with a single intent as part of one transaction and whether offences differ in their elements, and it treated housebreaking with intent to rob and robbery committed pursuant to that intent as ordinarily warranting a single composite conviction rather than separate convictions on duplicative counts.

S v Khumalo and Another (SS 031/2021) [2022] ZAGPJHC 166 (9 March 2022)