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[2012] ZAECPEHC 2
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S v Mzayifani and Others (CC 13/09) [2012] ZAECPEHC 2 (30 January 2012)
IN
THE EASTERN CAPE HIGH COURT PORT ELIZABETH
CASE
NO. CC 13/09
In
the matter between:
THE
STATE
versus
THEMBELANI
MZAYIFANI
…........................................
1
st
ACCUSED
LUNGA
MAGONGO
…...................................................
2
nd
ACCUSED
MAKHWNAANDILE
NINDZI
…...................................
3
rdhe
ACCUSED
JUDGMENT
KEMP
AJ:
[1]
The accused are charged with raping the complainant, a 19 year old
female, and of robbing her of a silver necklace valued at
R50.00. The
accused all pleaded not guilty to the charges, with the first and
third accused pleading alibi defences, and the second
accused
alleging that he had consensual sex with the complainant on the night
in question. The third accused alleged that he had
found the necklace
which was found in his possession when he was arrested, on the
pavement a few days before the alleged offences
took place.
[2]
At the commencement of the trial the State indicated to the accused's
representatives that it only had DNA evidence linking
the 2
nd
accused
to samples taken from the body of the complainant. During the course
of the trial further DNA evidence emerged, linking
the 1
st
accused
and possibly the 3
rd
as
well. This late production of DNA evidence led to an application to
have it excluded, which application was dismissed.
[3]
A knife was allegedly used during the commission of the offences and
the State led the evidence of Sergeant Stanley, the arresting
officer, who testified that he had found a knife which fitted the
description of the knife used in the attack, in the possession
of the
1
st
accused.
The 1
st
accused
denied that the knife had been found in his possession and alleged
that it had been on the dashboard of the police vehicle
when they
were arrested. The 3
rd
accused
denied that the necklace had been found during a search of his person
and alleged that he had voluntarily given it to the
arresting officer
at the police station and denied that an Okapi knife had been found
in his possession during the first search,
and alleged that it had
been on the dashboard of the police vehicle when they were arrested.
[4]
The accused put the State to the proof of all the facts in the matter
and initially admitted none of the chain evidence. This
led to many
postponements, as some of the witnesses were from out of town. After
the accused had been in custody for over two years
and after the case
had been set down for trial for a week, the State could only produce
one witness, whose evidence was finalised
in a day, and requested a
further postponement for the purpose of calling further witnesses to
prove the chain evidence. The State
conceded that it was responsible
for the postponement, that the length of time that the accused had
been in custody awaiting trial,
the fact that the further
postponement would in all likelihood be a lengthy one, taken together
with the fact that the complainant
had left Port Elizabeth shortly
after the alleged rape, constituted exceptional circumstances. I
agreed, and in the absence of
any objections to the postponement by
the accused, postponed the matter and granted bail of R300 to the
accused, subject to the
usual conditions.
[5]
I will now deal with the evidence of the various witnesses, the first
of whom was the complainant. At the time of the commission
of the
alleged offences, she was 19 years old. She had a standard 5 level of
education and had recently moved from Addo to Port
Elizabeth in order
to work in a tavern. She had got the job through an acquaintance of a
family member, and stayed in the premises
next to the tavern.
[6]
On the night of the attack she was closing the tavern and had just
finished locking up when three young men appeared. The one
in front,
who she identified in court as accused no. 1, was carrying a silver
knife and she said, had a lighter complexion than
the others. She
indicated in court that the knife, including the handle and the
blade, was approximately 12 centimetres long.
[7]
The 1
st
accused
offered to accompany her home, which offer she declined, saying that
she lived right there, upon which he opened the knife
and held it
against her waist. She said that she did not know them but had seen
them before when they came to the tavern or walked
past, saying that
they used to come to the tavern occasionally. She said that there
would normally be about five or six of them.
She then corrected her
earlier evidence saying that they had not come into the tavern but
had walked past whilst she was sitting
at an outside table.
[8]
They then walked up the road whilst the 1
st
accused
held the knife against her. They stopped outside a house and the one
with the knife said that she must take off her pants,
which she did.
He then removed his pants and raped her whilst she was lying on her
back on the ground. After he finished, accused
no.2 raped her, and
then accused no.3. After he had finished, accused no.1 searched her
but could not find anything of value except
for her necklace, which
he took. She described it as a silver necklace which did not have a
clasp. She said that she used a piece
of wire to fasten it. The chain
was then produced in court and identified by her as being hers.
[9]
Although she said that she had repaired the necklace at some stage
with a piece of wire to hold it together, it seems that it
was not a
piece of wire, but an actual clasp which she obtained from the
dressing table at the place where she was staying. The
impression
that I gained from her evidence was that the necklace was pulled off
her neck and would have broken, although when recovered,
it was in
one piece. Her explanation for this is that they must have repaired
it. This is unlikely, given the short period of time.
More likely is
that it is either not the same necklace or that it was not broken
when removed from her neck. Although she said
that she normally
removed it by unclasping it, and demonstrated how she did so in
court, it was also possible for her to remove
it without unclasping
it, which she also demonstrated in court, and which she said she also
did on occasion.
[10]
The complainant then ran to house where she knew a lady who knew the
owner of the shebeen - one Ms Xoli. She knocked at her
window but
when she didn't answer, knocked on the door, after which Ms Xoli
opened for her. She told her that she had been raped
by three young
men and Ms Xoli phoned the police, who arrived shortly thereafter.
[11]
She was taken to the police station where a statement was minuted,
after which she was taken to the Dora Nginza Hosptal where
she was
examined. Thereafter Sergeant Stanley arrived. He took her back to Ms
Xoli's house and minuted a statement from her, after
which they went
back to the tavern in order for her to get clean clothing to change
into, when they saw the three assailants. She
recongized them because
they were still wearing the same clothes that they had been wearing
the previous night. They were coming
from a derelict house without a
roof, diagonally across from the tavern.
[12]
She pointed them out to Sergeant Stanley, who then drove closer and
stopped in front of them. He took out his firearm and told
them to
lie on their stomachs after which he searched them. She said that he
found the necklace in the possession of accused no.
3, the silver
knife in the possession of accused no. 2 and a brown Okapi knife in
the possession of no.1. Both Stanley and the
2
nd
accused
alleged that the Okapi knife was found in the possession of No. 3 and
Stanley testified that the silver knife was found
in the possession
of no.1.
[13]
Stanley then took them to the police station where he filled in
documents, after which he took her back to Ms Xoli's house,
where he
asked the complainant for her panties. She told him that she had not
pulled them up after the rape and he then took her
jeans. She then
left Port Elizabeth later that same day and returned home to
Addo.
[14]
Under cross examination by Mr O'Brian she said that she had
previously seen no.1 about a week before the incident on a Saturday
when he was in the company of other men, not his coaccused, and
that he had a beard at that stage, which she described as
a
"toombaard", which I gathered was a thin beard. She said
that she remembered him specifically as he was light in complexion,
even though it was pointed out to her, and was obvious to see in
court, that he was of a darker complexion than no.2.
[15]
Mr O'Brian then took her through her police statement, which was
signed at 01:40 on the 29
th
March,
a mere hour or two after the incident. On being asked whether the
statement had been read back to her she said that it had
not been. Mr
O Brian then asked her to look at the statement and she confirmed
that the first paragraph was correct but not the
second. She pointed
out that she had not gone home prior to the attack, as alleged in the
statement, and did not scream. She also
denied that they had wanted
money. She also pointed out that although her statement maintained
that the necklace had been taken
before the rape, that was not
correct. She denied that her assailants had undressed her or that she
had refused to undress. She
denied that the accused had raped me from
the back - she said that she had been lying on her back when they
raped her. She denied
that the second one had lain behind her, and
confirmed that he had lain on top of her. She denied that the others
were looking
at her, and said that they were in fact looking out for
other people. She denied that she had mentioned anything about them
wearing
a condom or that she was scared of infections or HIV. She
denied that they had left her in the street and said that she had in
fact got up, dressed and ran away. It is not disputed that she did
not go to the police station to report the crime, as alleged
in the
statement. She went to Ms Xoli, who phoned the police who then took
her to the police station.
[16]
It was clear that whoever had minuted her statement on the night of
the incident had a very poor command of the English language.
Although one can understand the colloquial usage of the terms "sleep
with" to describe sexual intercourse, the statement
taker
described the complainant as "waking up" after the rapes,
which is clearly neither consistent with the complainant's
version,
nor with what one would expect after such an experience. One of the
attackers "do up and down until he reach the
climax. He woke up
after he finish." The statement is ambiguous about whether the
complainant screamed or not "I tried
to scream but no one heard
me, and also I was scared of knife."
[17]
Why the statement taker described the rapes as having taken place
"from behind" in so far as it might imply anal
sex is not
clear and the complainant denied that she had ever been penetrated
anally, or that she had ever told anyone this, and
the doctor who
performed the medical examination afterwards testified that if he had
been told that the complainant had been penetrated
anally, that he
would have made a note of that fact on the J88 form. The fact that he
did not, indicated to him that she had not
complained of anal
penetration. He explained that anal swabs were taken as a matter of
course for two reasons: firstly because
some victims never complained
of being penetrated anally when they had been, but also because semen
often gravitated into the area
surrounding the anus.
[18]
Under cross examination by Mr Joubert, the complainant was not
prepared to concede that her description of the accused with
the
knife must have been wrong when it was pointed out to her that
accused no.1 was of a darker complexion than accused no.2. Her
explanation was that he must have been lighter at that stage. She
denied that she had met accused no.2 near the tavern, that she
was
slightly under the influence of liquor, and that they had agreed to
have consensual sex. It was alleged by accused no. 2 that
this had
happened at about 9 pm that evening. She denied that, saying that at
about 9 pm she was still serving customers at the
tavern.
[19]
She confirmed that she had a boyfriend who was in Cape Town at the
time of the incident but also had a relationship with another
man in
the area, and that she had had consensual sex with him on the
Wednesday before the incident.
[20]
She then corrected her earlier evidence that Sergeant Stanley had
recovered the necklace during his search of the suspects
on the
pavement after arresting them and confirmed that he had actually got
it at the police cells and showed it to her whilst
in the waiting
room.
[21]
The next witness to testify on behalf of the State was Ntombekhaya
Xoli, the lady to whom the first report was made.
[22]
She testified that she knew the complainant as "Michelle"
and confirmed that she stayed at 140 Hintsa Street, where
she was
working for a friend of hers. Her friend's brother and the
complainant stayed in the house. She had known the complainant
for
about four months. She saw her in the early hours of the morning of
the 29
th
March,
after midnight. The complainant knocked at the back door but after
she did not respond the complainant went around to her
bedroom
window. Once the complainant identified herself the witness opened
the door and found the complainant crying. She was shaking
and
appeared to be shocked. After settling her, the complainant told the
witness that she had been raped. On being asked to explain
how and
where it happened she said that she had finished closing the tavern
when three young men arrived and attacked her and left
with her.
There was dirt and pieces of grass on her. After attempting
unsuccessfully to summon her employer and her brother, the
witness
called the police and they arrived shortly thereafter. She told them
what it was alleged had happened and they left with
the complainant.
[23]
The complainant returned at around 11 or 12 the next morning, in the
company of Sergeant Stanley, who minuted a statement from
Ms Xoli. He
then left with the complainant in order that she could point out the
place where the rape had taken place. After a
while he returned so
that the complainant could wash herself. She was carrying clothes
from her home to change into.
[24]
Under cross examination by Mr O'Brien, for accused no. 1, and in
response to a question as to whether the accused had been
armed Ms
Xoli confirmed that:
"After
everything she did tell me that they were carrying knives"
[25]
When asked to explain what she meant by "after everything"
she explained that after she had made her statement and
after the
complainant had come back from the hospital and "subsided",
that she told the witness that "he was carrying
a knife"
[26]
When asked to confirm that there was only one person who was carrying
a knife she said that the complainant did not explain.
When pressed,
she said that the complainant had said that "they were carrying
a knife". When pressed further, she said
that she did not
remember whether the complainant said that "he" was
carrying a knife or whether "they" were
carrying a knife.
Although her evidence certainly changed and may have been an attempt
on her part to adapt her evidence I am of
the view that she explained
herself satisfactorily when she explained that:
"I
do not remember but she did say that she was attacked and now what I
do not remember is whether did she say did all of them,
each one
carry a knife or was it only one of them but an issue relating to a
knife was mentioned."
[27]
When asked what the complainant said about the identity of her
attackers, Ms Xoli first said the complainant had not indicated
whether she had ever seen them previously. When the question was
repeated she said that the complainant had said that she had seen
them before, although she at first couldn't remember where she had
said that she had seen them. On being reminded that she had
said in
her police statement that the complainant had said that she had seen
them at the tavern before, she said that she recalled
that and
confirmed that her statement in the police statement that:
"she
had just been raped by three males whom she knew by sight as they
used to visit this tavern where she works"
was
in fact consistent with her recollection.
[28]
She confirmed that although it did not appear in her police
statement, that the complainant had told her that her assailants
had
also forcibly removed her chain from her.
[29]
On being asked by Mr Joubert, for the 2
nd
accused
whether she recalled whether the complainant had smelt of liquor she
said that she had not smelt liquor on her and that
it was not
possible that she could have had a few drinks earlier.
[30]
The next witness to be called was Sergeant Stanley. He was working at
the Motherwell Family Violence, Child Protection and
Sexual Offences
Unit at the time. He met the complainant and was handed the docket
and sexual assault kit. They left the Rape Crisis
Centre
and as he drove he started to interview her. He specifically asked
her whether she would be able to identify the suspects,
which she
confirmed.
[31]
She told him that she had seen them in the area where she stayed and
worked and had even seen them in the tavern where she
worked.
[32]
They first went to Ikamvilihle Police station where the sexual
assault kit was handed in, after which they went to Ms Xoli's
house.
He also interviewed Ms Xoli after which they went to the tavern where
the complainant lived and worked. After parking outside
the tavern
they went inside and the complainant retrieved some clothes. On
returning to the vehicle, the complainant indicated
that the
dilapidated building across the street was a place which her
attackers frequented in order to smoke dagga.
[33]
As he pulled away from the kerb she suddenly said that she saw them.
When he looked, he saw three males coming from the back
of the
dilapidated building, walking in the direction of the pavement. He
then decided to arrest them. He took out his firearm
and drove
straight towards the suspects. He and the complainant exited the
vehicle. He pointed his firearm at them and ordered
them to lie down.
He searched them for weapons and found a silver knife in the
possession of accused no.1 and an Okapi knife in
the possession of
accused no.3.
[34]
The situation had become quite volatile, as a crowd was gathering. He
could not gauge the intentions of the crowd but was fearful
for the
safety of both the suspects and the complainant and handcuffed
accused no's 1 and 2. He only had one handcuff so he handcuffed
the
left hand of one to the right hand of the other and put accused no. 2
in the middle of them on the back seat of his car.
[35]
He asked the complainant as they were driving if she was sure that
they were the people who had raped her and she confirmed
that she
was. She told him that accused no.1 was the first to rape her, that
he had also threatened her with a knife and took her
chain. Accused
no. 2 was the second person to rape her and no. 3
the
third.
[36]
When they got to Motherwell police station he left the complainant in
the crime office and took the three suspects into the
cells. He
warned them and searched them again. He explained that the first
search was conducted very quickly and had as its primary
objective
the discovery of any weapons. He explained that the second search was
conducted prior to handing the suspects over to
the cell officials
and that it had to be a thorough search. He found a silver chain in
the front pocket of accused no. 3. He said
that accused no. 3 gave no
explanation as to how he came to be in possession of the chain. He
then took the chain to the complainant
who identified it as hers.
[37]
He then took her back to Ms Xoli's house where he took custody of her
jeans. The complainant had previously explained to him
that after the
rape she had not had time to pull her panties back on, that when she
pulled her jeans on after the rape, that the
panty had remained
around one leg, at the bottom of her jeans, and that he had therefore
not bothered to take possession of it.
[38]
On the way to Ms Xoli's house they had first gone to the scene of the
rape. He knocked on the door of the house but there was
no response.
The complainant pointed out the precise spot where she had been
raped.
[39]
He confirmed that he had found no cigarettes in any of the accused's
possession, another aspect disputed by no. 1, who said
that he was
left in possession of one packet of cigarettes and even smoked them
at the charge office and at St Albans prison.
[40]
Under cross examination by Mr O'Brien Stanley confirmed that he was
aware of glaring inconsistencies between the complainant's
statement
to the police and to her version as put to him. He said that he did
nothing about it as the poor quality of charge office
statements was
well documented, and he did not want to take another statement which
introduced further inconsistencies.
[41]
He said that the complainant had said that accused no. 1 had
threatened her with a silver knife by holding it against her side
when they were walking from the tavern to the house where she was
raped. It was put to him by Mr O'Brian that accused no. 1 would
allege that the knife was not found in his possession but that it was
on the dashboard in the vehicle after his arrest, which he
emphatically denied.
[42]
Mr Skepe, for the 3
rd
accused,
put it to the witness that the 3
rd
accused
would deny that the necklace was found in his possession by Sergeant
Stanley when he was searched at the police station,
and would testify
that he voluntarily handed it over and that he told Sergeant Stanley
that he had picked it up on the street two
weeks before his arrest.
Sergeant Stanley denied that the necklace had been handed to him
voluntarily or that accused no. 3 had
offered any version as to how
he came to be in possession of it.
[43]
The next witness to testify for the State was Dr Owolabi Olwishallah.
He confirmed that he had examined the complainant on
the 29
th
March
2009. He confirmed that according to the J88 form which he had
completed, that the complainant had complained of being raped
by
three men. He confirmed that her clothes were soiled, that she
appeared to be emotionally balanced and did not appear to have
been
under the influence of alcohol or narcotic substances. He confirmed
that she had advised him that she had already had one
child, and that
she was still menstruating at the time, having begun her cycle on the
26
th
March,
and that her cycle normally lasted for four days. She had confirmed
that she had had consensual sex on the 25
th
March
2009. Although he concluded that he could see no clinical signs of
genital injury, that in his experience that did not exclude
forceful
vaginal penetration. He confirmed that the anal swabs are taken as a
matter of course and that the complainant had not
complained of being
molested anally.
[44]
The next witness to testify was
Siphokazi
Maweni.
She
was
a
warrant officer in the employ of the South African Police Services,
employed at the Forensic Science Laboratory at Delft in the
Western
Cape as an assistant forensic analyst and reporting officer. She has
a BSc degree majoring in Biochemistry and Micro-biology
and an
Honours degree in Biochemistry. Although she claimed to have had 9
years experience in the biological sciences, she included
her
university years in that experience and actually only had 4 years
working experience at the time of deposing to the affidavit
and had
only given evidence three times before. She explained the procedures
involved in testing samples for traces of DNA.
[45]
Prior to her receiving a docket it would first go to a submission
analyst who would open the docket and decide which samples
to submit
into the DNA process. Those samples would then be removed from the
docket and introduced into the DNA process. Whilst
the samples are in
the DNA process, the remaining samples would be left in the docket
and those dockets would be kept in a sealed
container. The submission
analyst would then monitor the progress of the samples and once
completed, put them back into the docket
and seal the docket.
[46]
The docket would then be sent to the administrative component of the
Unit, who would then send it to the witness, or somebody
like her.
She would break the seal and open the docket, which would then be in
her custody and safekeeping until her report was
completed after
which it would be sealed by her and sent to the archive for storage.
[47]
She testified that what happened in this case was that when she was
compiling the DNA report in February 2010, she noticed
that some of
the samples had not been submitted by the submission analyst. The
submission analyst apparently has a discretion to
submit only some of
the samples if there is a single suspect, but in a case like the
present, where there are more than one suspects,
the protocol
dictates that all of the samples be tested. A subsequent witness
informed the court that the submission analyst was
subsequently
disciplined for failing to submit all of the samples. Maweni, on
noticing that not all of the samples had been submitted,
continued
compiling the initial DNA report and then submitted the remaining
samples into the process and subsequently analysed
them and submitted
a supplementary report in August
2010.
[48]
In her initial report she concluded that DNA from the 2
nd
accused
could be identified in three samples - the vestibule, the vaginal
vault and the cervical os. She concluded that the most
conservative
occurrence for the DNA result from the vaginal vault swab "for
all the possible contributors to the mixture DNA
result is one person
in every 664 406 people".
[49]
In the supplementary report she found that DNA from the first accused
could be identified in the rectal swab taken from the
victim and that
the most conservative occurrence would be one person in every 1645.
[50]
She also found traces of accused no. 2's DNA in the external anal
swab, the vulva swab and the rectal swab and concluded that
the most
conservative occurrence for the DNA result from the vulva swab would
be one in 485 999 people. She indicated that she
could neither
include nor exclude the DNA from accused no. 3 in the rectal swab.
Her evidence in court however contradicted her
report. She testified
in court that the tests revealed that the 1
st
and
3
rd
accused
could in fact be excluded as suspects, and that there were probably
one or more contributors of semen besides any of the
accused.
[51]
She made some other remarks that appeared to be inconsistent with her
report and common sense, for instance that an exclusion
rate of 99%
meant that the 2
nd
accused
was probably not linked to the semen. Quite clearly the report meant
quite the opposite and I do not believe that anyone
can criticise the
conclusion that she got to a point in testifying where something went
wrong. She was either tired, confused,
nervous or a combination of
all three. Looking through the transcript afterwards I can also
understand that she must have been
frustrated at our lack of
understanding of what she was trying to convey, especially regarding
the mixed samples. As the matter
was in any event to be postponed for
a lengthy period of time after her evidence was concluded, I compiled
a list of requests,
comments and suggestions, which I put to the
court, which list was subsequently introduced into evidence as
exhibit Z, as follows:
"Whether
having more than one contributor of semen to the samples tested could
have affected the results.
1.
If so how would it affect the reliability of the results?
2.
Is it possible to detect how many contributors there were?
2.
Explain
why the identification of different alleles on different suspects
would
affect the statistical prediction of possible matches on
those suspects, with
different outcomes depending on which alleles
were identified.
2.1.
In exhibit K1 the number of alleles range between 8 and 25, in
Exhibit K2 between 11 and 34, and in Exhibit K3 between 10 and
31.
This appears to be quite a limited number of alleles. How many
alleles are there in fact?
2.2.
Explain what statistical conclusion is consistent with proof beyond a
reasonable doubt and in particular why there is such
a large
difference in the statistical presentation of the probabilities of
finding a match in a random sample of the population
between the 1
st
and
the 2
nd
accused.
3.
Provide evidence regarding the reception of the samples at the
Western Cape Laboratory in Delft, the custody thereof, and the
handing over of the samples to the various staff involved in their
custody and control.
4.
Provide evidence regarding the actual testing of the samples and the
production of results.
5.
Provide evidence regarding the reliability of the equipment and
software used for analysing the specimens and for drawing scientific
conclusions therefrom.
6.
The provisions of section 212 must be borne in mind, and in
particular the provision that "a deponent to an affidavit must
depose to facts which are within his personal knowledge."
7.
Provide a statistical probability such as was provided in Maweni's
affidavit regarding the results for the vaginal vault, for
the
vestibule and the cervical os, in respect of the 2
nd
accused,
or explain why it is not possible.
8.
Provide clarity on certain aspects of Maweni's evidence, not
necessarily limited to, but in particular, regarding the inclusion
or
exclusion of suspects as possible matches if all ten loci matches are
not obtained.
9.
Comment on the requirements of other jurisdictions relating to the
number of loci required - for example 13 appear to be required
in
some jurisdictions, whilst a match of less than 10 could appear to
have evidentiary significance as well.
10.
Indicate whether the complainants alleles were detected in any of the
suspect's samples and whether and if so how the presence
thereof
could have influenced the outcome of the results.
[52]
Colonel Sharlene Otto, the chief forensic analyst and reporting
officer in the service of the South African Police Services
testified
next. She pointed out, quite correctly, that the word "suspects"
should have been deleted from paragraph 10.
What I had meant to ask
was whether any of the complainant's DNA was likely to have been
found in any of the samples taken from
her body, and if so, whether
this could have influenced the outcome of any of the tests.
[53]
The position with DNA testing, as I understand it in simple terms, is
that the sample undergoes an initial test to see whether
it contains
DNA. Thereafter, if the test is positive, it is tested to see if it
contains male or female DNA. If it contains female
DNA and it is in
the sample which is supposed to contain the DNA of a male suspect,
then the testing stops there. If it is however
found to contain male
DNA then the testing proceeds.
[54]
What then happens is that the DNA is introduced into a process which
copies certain identifiable components of DNA, components
which are
common to all humans, but which have different characteristics. At
the end of the process places, referred to as loci,
are identified.
Each individual inherits one characteristic, or allele, from each
parent. It is also possible to inherit the same
allele from each
parent, in which event only one allele will be identified on that
locus. The first locus has two alleles which
determine sex and have
only X's and Y's, whilst the other nine locieach have between around
ten to thirty possible alleles each,
which are each numbered from one
to approximately thirty.
1
So for example one could have two tens on one locus, a twenty and an
eighteen on another, and so on. The end result is like a combination
lock which has twenty tumblers. To find a match at random would be
like spinning a one armed bandit with twenty tumblers, and hitting
the jackpot, bearing in mind that the tumblers vary in possible
combinations, from only X's and Y's on the first, to between
approximately
eighteen on the others.
[55]
What happens when semen from another contributor is found in the
sample is that on each tumbler there are now possibly double
the
correct answers. Even so, the chances of finding an exact match are
still remote. Although doubling the contributing semen
would appear
to increase the odds of finding a match by fifty per cent, it appears
that although the statistical probability of
a hit increases, it is
not simply by fifty percent.
[56]
When reduced to numbers, the process appears to be quite simple. The
second accused had the following alleles present in loci
one to ten
respectively: X:Y; 14:16; 15:16; 23:27; 11:15; 31.2: 34; 15:19;
11:13; 11:12; and 11:11. On the Rectal swab those exact
alleles were
found in the same order, as well as a number of others.
2
The additional alleles indicated an additional sperm donor or donors,
and according to Colonel Otto, all of the additional alleles
are to
be found in the sperm of either the second or the third accused.
[57]
The position with the third accused however, was that although he can
not be excluded as a suspect, as traces of sperm which
could have
been his were found, there was not enough of thatsperm present to
pass the stringent criteria set by the laboratory.
Colonel Otto
demonstrated however that in each locus, both of his alleles were to
be found. Both alleles were numbered at loci
1,3,8 and 9,
3
but only one at loci 2, 5, 6, 7 and 10.
4
Colonel Otto showed the court how, on each of those diagrams there
were peaks corresponding with the unnumbered alleles, meaning
that
the likelihood of an exact match was in fact extremely high. Their
protocol however, demanded that the unnumbered peaks could
not be
accepted as unqualified proof of an exact match. Colonel Otto however
had no doubt that it was in all probability an exact
match and a
clear indication that the other unknown donor was not anyone other
than the 3
rd
accused.
She confirmed that there was absolutely no evidence of any other
donors other than the three accused and Maweni's evidence
to the
contrary appears to be demonstrably incorrect on this score and
Colonel Otto's demonstrably accurate. She explained that
the system
only permitted the numbering of peaks which were high enough to
indicate that sufficient volumes of DNA were found to
be present to
test conclusively. As argued by Mr Coetzee for the State I am
satisfied that the evidence regarding the 3
rd
accused's
DNA has probative value and strengthens the circumstantial evidence
against him, the cumulative value of which must then
be evaluated at
the end of the day.
[58]
Although Colonel Otto's evidence was very helpful I am constrained to
criticise certain aspects thereof. At one point in her
evidence she
assured the court that only male DNA could be found in the samples,
but when it was pointed out to her that one of
the alleles in fact
matched that of the complainant,
5
she attempted to qualify her previous unqualified declaration by
explaining that when making the statement she had disregarded
alleles
that were not numbered by the system. This is despite having
presented a written report to court the previous day, in the
form of
Exhibit BB, where in table 1 it can be seen that the only alleles
identified in the last locus, E7S820, of the external
anal swab were
11 and 11, whilst accused no. 1's alleles on the same locus are 10
and 11. In order to be a perfect match allele
number 10 should also
have been present on the same locus on the external anal swab. She
even provided a statistical probability
based on the so called match,
being one in every 11 000 people. Strangely, she provided no
statistical probability with regards
to the Rectal swab, which had a
100% match. She pointed out that the 10
th
allele
was in fact present on the external anal swab, and pointed out that
there was an unnumbered peak at D7S820 on the external
anal swab
diagram in Exhibit BB, page 1, on the grey line, which she described
as the allele positions, just before the 11
th
allele.
She testified that although the system was programmed not to number
peaks that were not high enough, she was qualified to
identify it and
was satisfied that there was absolutely no doubt that it was the
tenth allele. It certainly wasn't as low as the
other smaller peaks
she referred to as artifactural stutters and her evidence appears in
this regard to be logical and convincing.
[59]
Although I have criticised certain aspects of her evidence, I do not
believe that her evidence regarding the scientific processes
and
conclusions can be criticised. I can understand that a scientist
explaining such complicated processes and concepts to lay
people will
try to simplify the explanation as much as possible, but
unfortunately, it can then lay their evidence open to criticism.
[60]
After the conclusion of Colonel Otto's evidence Mr O'Brian, for the
1
st
accused
brought an application to have all DNA evidence linking the 1
st
accused
to the samples, expunged. I dismissed the application and indicated
that my reasons would follow. These then are my reasons.
[61]
Mr O'Brian argued that the investigating officer had testified that
there was no DNA evidence linking the 1
st
accused,
and that he had also been advised of this fact prior to having to
plead, as the supplementary report only surfaced after
he had put his
client's alibi defence to the complainant in cross examination. He
argued that the 1
st
accused
had been prejudiced in the conduct of his defence in that his legal
repersentative had been unable to properly advise his
client. I fail
to understand in what way the 1
st
accused
might have been prejudiced. It is true that he pleaded an alibi
defence and that had he known that there was DNA evidence
linking him
that he might have been wiser not to have pleaded an alibi initially.
The 1
st
accused
however declined to disclose his evidence at the outset, and his
version was only disclosed during cross examination of
the State
witnesses, in particular the complainant. That is not legally
recognizable prejudice. He is not permitted to tailor his
defence to
suit the evidence. If he had been prejudiced in obtaining the
services of a DNA expert timeously then arrangements could
have been
made to postpone the matter in order to make such arrangements, but
no such request was ever made, notwithstanding that
the supplementary
DNA results have been known since August
2010.
[62]
Mr O'Brian referred me to
S
v Dzukuda and Other; S v Tshilo
[2000] ZACC 16
;
2000
(2) SACR 443
(CC), and in particular paragraphs [9] - [11] thereof.
They bear repeating
verbatim.
"[9]
As was said by this Court in
Zuma's
case,
an accused's right to a fair trial under section 35(3) of the
Constitution is a comprehensive right and "embraces a concept
of
substantive fairness which is not to be equated with what might have
passed muster in our criminal courts before the Constitution
came
into force." Elements of this comprehensive right are specified
in paragraphs (a) to (o) of subsection (3). The words
"which
include the right" preceding this listing indicate that such
specification is not exhaustive of what the right
to a fair trial
comprises. It also does not warrant the conclusion that the right to
a fair trial consists merely of a number of
discrete sub-rights, some
of which have been specified in the sub-section and others not. The
right to a fair trial is a comprehensive
and integrated right, the
content of which will be established, on a case by case basis, as our
constitutional jurisprudence on
section 35(3) develops. It is
preferable, in my view, in order to give proper recognition to the
comprehensive and integrated nature
of the right to a fair trial, to
refer to specified and unspecified
elements
of
the right to a fair trial, the specified elements being those
detailed in sub-section (3).
[10]
It should not be assumed that a fair trial, as required by section
35(3), can only be achieved by one specific system of criminal
procedure. There may be more than one way of securing the various
elements necessary for a fair trial and provided the legislature
devises a system which effectively secures such right, it cannot be
faulted merely because it settles for a system which departs
from
past procedures. The norm prescribed by section 35(3), is a "fair
trial." The question to be determined in each
case is whether
the criminal procedure scheme, or the relevant part thereof, devised
by the legislature, whatever its
form,
conforms
in substance to that
norm.
[11]
It would be imprudent, even if it were possible, in a particular case
concerning the right to a fair trial, to attempt a comprehensive
exposition thereof. In what follows, no more is intended to be said
about this particular right than is necessary to decide the
case at
hand.
At
the heart of the right to a fair criminal trial and what infuses its
purpose, is for justice to be done and also to be seen to
be done
.
But the concept of justice itself is a broad and protean concept. In
considering what, for purposes of this case, lies at the
heart of a
fair trial in the field of criminal justice, one should bear in mind
that dignity, freedom and equality are the foundational
values of our
Constitution. An important aim of the right to a fair criminal trial
is to ensure adequately that innocent people
are not wrongly
convicted, because of the adverse effects which a wrong conviction
has on the liberty, and dignity (and possibly
other) interests of the
accused. There are, however, other elements of the right to a fair
trial such as, for example, the presumption
of innocence, the right
to free legal representation in given circumstances, a trial in
public which is not unreasonably delayed,
which cannot be explained
exclusively on the basis of averting a wrong conviction, but which
arise primarily from considerations
of dignity and equality."
(my
emphasis - footnotes excluded)
[63]
Mr O' Brian also referred me to
Crossberg
v S,
6
a
case where thirteen statements minuted by the police went missing,
and Navsa JA, had the following to say:
7
"[79]
In
Taillefer
8
it
was made clear that the determination of whether there exists a
reasonable possibility that the fresh evidence would have an
impact
on the result of the trial process should be dealt with as a separate
issue from the assessment of the effect of the failure
to disclose on
the overall fairness of the trial. At para 84 in relation to the
fairness of the trial the court said the following:
'The reasonable
possibility of affecting the overall fairness of the trial "must
be based on
reasonably
possible
uses of the non-disclosed evidence
or
reasonably
possible
avenues of investigation that were closed to the accused as a result
of non-disclosure..." That would be the case,
for example, if
the undisclosed statement of a witness could reasonably have been
used to impeach the credibility of prosecution
witnesses. The
conclusion would necessarily be the same if the prosecution fails to
disclose to the defence that there is a witness
who could have led to
the timely discovery of other witnesses who were useful to the
defence.
'
[80]
Each case must of course be considered on its own merits. A retrial
is not ordered merely on an assertion that the State's
failure to
disclose impacted on the original trial. In the present case, whilst
the statements themselves are not available for
scrutiny, it is clear
from the evidence adduced by the State (and referred to earlier) that
they are
highly
relevant to the outcome and to the issue of a fair trial in relation
to the murder charge. They go to the true strength of
the state's
case against the appellant and they impact on credibility. The State
presented dubious reasons for the retaking of
the statements and
offered no reasonable explanation as to why so many statements were
missing. The disclosure that numerous statements
were taken and were
missing came only after State witnesses had been 'caught out'.
As
stated earlier, entries were made in the investigation diary of
statements even before they had been taken. The other factors
set out
in para 69 above are significant. In the totality of the
circumstancesof the present case, the conclusion that the first
set
of statements did not suit the State's case and that they are missing
by design rather than misfortune is compelling"
(my
emphasis)
[64]
Mr O' Brian also referred to a doctoral thesis by Fawzia Cassim,
9
and in particular chapter five thereof, where the learned author
discussed
inter
alia,
the
Shabalala
10
decision,
and regarding expert evidence, concluded that
11
:
The
defence's ability to competently challenge expert evidence depends on
the extent of information available to it. The timing
of disclosure
relating to expert evidence could be crucial to the proper
preparation of the defence case. This is because access
to
comprehensive expert reports and pre-trial meetings between experts
can contribute to delineating the issues in the dispute.
According to
Shabalala, the timing of disclosure will depend on the circumstances
of the case. Disclosure can occur at a later
stage provided the
accused has sufficient time to prepare the defence" ' The
Constitutional Court stated in Shabalala, that
the primary reason for
disclosure is that an accused may prepare a defence by being fully
informed of the case that he has to meet,
and that disclosure should
take place at a time 'when the accused is acquainted with the charge
or indictment or immediately thereafter".
However, the duty to
disclose is said to be a continuing one."
(footnotes
excluded)
[65]
Mr Coetzee referred me to
Du
Toit v Direkteur van Openbare Vervolging, TVL
12
,
which
I think is apposite. It is indeed so that the investigation "does
not have to come to a screeching halt at the commencement
of the
trial." I am satisfied, after considering the explanation given
by Colonel Otto, that the non disclosure was not purposeful
and more
importantly, that the accused suffered no legally recognizable
prejudice as a result thereof.
[66]
The State then closed its case and the accused each testified. The
1
st
accused
testified that he lived in the same street as the tavern,
approximately a three minute walk away, and that he had been into
the
tavern previously in order to buy cigarettes but had been served by
the owner, not the complainant. He normally went to Kabane
garage
further down the road to buy packets of cigarettes which he would
then sell individually to patrons of the garage who were
refuelling
their cars. On the day of the rape he had gone there at about 09:00
and returned at about 20:00 after which he went
home to his room
behind the main house, ate his supper, had a cigarette, and woke up
the next morning at around 08:00 after which
he washed, had breakfast
and then left to go to the garage to sell cigarettes.
[67]
Whilst in the street, he met the 2
nd
and
3
rd
accused
who asked for cigarettes, which he gave to them. As they were
smoking, a police vehicle arrived and they were arrested.
[68]
He said that although the investigating officer searched him, he
found nothing on him, but found an Okapi knife on accused
no.3. He
said that they were searched again at the police station but before
accused no. 3 was searched, that he took out a silver
necklace and
handed it to the police. He said that he had seen a silver knife on
the dashboard of the police vehicle along with
the Okapi knife, when
he got into the vehicle. He said that he knew that accused no.3 had
picked up the necklace on the pavement,
whilst on his way back from
school about a week prior to their arrest. He, like his co-accused,
denied having emerged from the
direction of the dilapidated house at
the time of their arrest, contrary to the evidence of both Stanley
and the complainant.
When
asked by Mr Skepe, for the 3
rd
accused,
whether he was sure about no. 3 being in possession of a knife, he
was adamant that he was. He denied that he knew the
complainant or
had ever seen her before.
[69]
The 2
nd
accused
testified that on the night of the incident he had had a few drinks
and whilst on his way home at around 20:45, met the
complainant, who
had obviously had a lot to drink and was quite inebriated. They
chatted for a few minutes and at around 20:50
or 20:55 they agreed to
have sex, after which they went to the back of a nearby house, where
there was fortuitously a mattress
lying on the ground. After being
arrested he said that he asked the complainant why she had accused
him of having raping her when
she knew that they had had consensual
sex and she replied that she had been raped by three men. This was
not put to either the
complainant or to Stanley. He said that he had
not seen accused no. 3 that day.
[70]
Under cross examination he denied that they had been arrested in the
vicinity of the dilapidated house and although he confirmed
that he
normally smoked with accuseds 1 and 3 he then denied that he had ever
socialized with either of them.
[71]
The 3
rd
accused
testified that he had gone to sleep at around 20:00 the previous
evening, as he had written an exam that day and his father
had
promised him a present. He slept in the same room as his little
sister and never went out until the next morning when he met
accused
no.2, who asked him for a cigarette, which he did not have. They then
met accused no. 1 who had a cigarettes and while
they were smoking
they were arrested. He denied that Stanley found an Okapi knife on
him. When asked by Mr Skepe, his legal representative,
whether he was
aware of any motive the complainant could possibly have for falsely
accusing him he said that it was possibly because
a few days prior
him and accused no. 2 had been confronted by the complainant's elder
brother who accused them of stealing a gate
from his property and had
threatened to beat them or deal with them. That version was never put
to the complainant.
[72]
The 3
rd
accused's
mother also testified. She confirmed that as far as she knew, that he
came home that evening at around 18:00 and that
when she went to her
room at around 21:00 that he was already asleep in his room, that she
locked the gate and that if anyone had
tried to leave that night,
that she would have heard. She confirmed that her disabled daughter
was wearing nappies at the time
and that she would normally have
checked on her two or three times in the evening. She recalled that
when she checked on her that
night that she saw the accused in his
bed sleeping. She said that she told the investigating officer that
her son had been at home
the previous evening but that he was not
interested in her story at the time, only wanting to know what his
age was and that he
only told her where he would be detained.
[73]
There were inconsistencies in both the complainant's version as well
as those of the accused. I am not particularly troubled
by the
inconsistencies between the complainant's version and that of the
police statement. The police statement is palpably inaccurate
and
only needs to be read in isolation for one to realize that virtually
no reliance can be placed on it for any purpose. It is
clear that the
prosecutor failed in his duty to point out inconsistencies in her
evidence to the accused's legal representatives
and this was quite
rightly conceded by Mr Coetzee, who only became involved in the trial
when Colonel
Otto
gave her evidence. The State's obligations in this regard are set out
by Fawzia Cassim
13
as below:
When
a state witness gives evidence which differs from a statement in the
prosecution's possession, the prosecutor must consider
the question
whether or not the discrepancy is of a serious nature. The prosecutor
is not required to do anything if the discrepancy
is of a minor
nature. However, if the discrepancy is clearly a serious one, the
prosecutor must as soon as possible make the statement
available to
the defence. If the accused is unrepresented, the prosecutor must
disclose the discrepancy to the court. The court
held that the
rationale of the rule requiring disclosure of a previous inconsistent
statement is to provide a safeguard against
the danger of an accused
being convicted on the evidence of a witness who is not a credible
and reliable witness. The prosecutor
may not ignore an averment in a
statement which is prima facie in conflict with the witness's
evidence. If the prosecutor is in
doubt, he must disclose it to the
defence. If he fails to disclose the discrepancy which is indeed
serious, that might well result
in a failure of justice.
The
prosecutor's duty was to make the original statement of the witness
available to the defence in order that the credibility of
the witness
can be properly tested by cross-examination with the aid of that
statement. Where there are two conflicting statements,
it is the
prosecutor's duty to disclose and make available both statements to
the defence. The absence of a request by the defence
for the
deviating statement to be made available (and, where such is the
case, of mutually conflicting statements) does not relieve
a
prosecutor of this aforementioned duty unless the defence has been
made aware of the existence of such statements and has indicated
that
it does not require them.
[74]
The complainant testified that she did point out discrepancies in her
statement to the prosecutor prior to testifying and as
pointed out by
Mr Coetzee, the prosecutor should either have made his consultation
notes available to the accused's representative,
or alerted them.
Having regard to the poor nature of the statement, and the fact that
the complainant was tackled on the discrepancies
by all of the
accused's legal representatives, at length, and in my view, acquitted
herself well under cross examination, I am
not of the view that the
failure to draw the discrepancies to the attention of the accused's
legal representatives in this case
in any way prejudiced the accused.
One must also beware of arm chair criticism of the prosecutor's
conduct. One is not aware of
how much time he had when consulting
with the complainant, when it was prior to her giving evidence that
he consulted with her
and to what extent she alerted him to the
discrepancies.
[75]
The complainant's attempts to justify discrepancies in the complexion
of the 1st accused can be criticised, as can some of
her evidence
regarding the necklace and the clasp. It seems however, at the end of
the day that she was convinced that it was her
necklace and at the
very least, it bore a striking resemblance to hers. There is no doubt
that a necklace was stolen from her that
night and the prospects of
the third accused having picked up a similar necklace a week or two
prior, just seem to be another co-incidence,
which taken together
with all the other, seem not to be reasonably possible. The 3
rd
accused's
version that he voluntarily gave Sergeant Stanley the necklace at the
police station is gainsaid by Sergeant Stanley who
is emphatic in his
evidence that he found it on the 3
rd
accused
during the second search. Sergeant Stanley was also adamant that he
found knives on accused no.'s 1 and 3, which evidence
was denied by
both of them, although no.2 confirmed that a knife was found in
possession of no.3. Why no. 3 would have carried
a necklace around
which he found a week before, is also unknown. I recalled him after
completion of argument and posed that question
to him and his
response was that he had transferred it from his school trousers to
those he was wearing on the day of the arrest,
as he wanted to wear
it with his smart clothes. He could not explain why he did not leave
it at home but left it in his pocket.
[76]
If there was consensual sex it is highly unlikely that the
complainant's panties would have remained in her jeans around one
leg
or that she would have gone to Ms Xoli and alleged that she had been
raped. She testified that she would still have been working
at the
tavern at around 21:00 which is the time when the 2
nd
accused
alleged that the consensual sex took place and she positively
identified all three accused. The positive DNA match of accused
no. 1
vindicates her evidence in this regard, at least as far as no.1 is
concerned. Although it is theoretically possible that
she could have
had consensual sex with accused no. 2 and then been raped by three
others, including 1 and possibly 3, when her
evidence is viewed in
conjunction with all of the other evidence, it makes that possibility
so remote as not to be reasonably possible.
The complainant was
adamant about all three and given her positive and objectively
correct identification of accused no 1, the
possibility of an
incorrect identification of no. 3 appears to be so much more
unlikely. The lighting was good and she had ample
time to identify
her assailants.
[77]
The denials by accused no's. 1 and 3 that Stanley found knives in
their possession appear to be palpably false. There appears
to be no
reason why Stanley would have wanted to concoct such evidence or that
he could have had the time to do so. The identification
and arrest
happened spontaneously and couldn't have taken more than a minute or
two. There simply wouldn't have been time to manufacture
such
evidence. Whilst the evidence regarding the knives has no direct
bearing on whether accused no.'s 1 and 3 raped the complainant
or
not, the fact that they lied about the knives, is another factor that
must be considered in conjunction with all of the other
evidence. The
3
rd
accused
knew both other accused, socialized with them previously, was found
in their company that morning, and was identified shortly
after the
fact with them. No.3 was found in possession of a necklace similar to
the one stolen a few hourspreviously, lived close
by, and had a DNA
profile consistent with that of the additional DNA identified on the
complainant.
[78]
I do not believe that accused no. 3's mother's evidence tilts the
scales in his favour sufficiently to cast any reasonable
doubt on the
evidence against him. It appears clear from the balance of the
evidence that he took part in the rape and the inescapable
conclusion
is that even if his mother saw him there that night, it was either
before or after he had surreptitiously left the house
and taken part
in the crimes.
[79]
Mr O'Brian argued that the theft of the necklace was no more than
that and did not amount to robbery. I am unable to agree.
The use of
force or the threat of the use of force was present and operated
throughout the attack. The wielding of a knife before
the attack
resulted in the complainant not resisting and was operative
throughout. Aggravating circumstances in relation to a robbery
are
defined in the Criminal Procedure Act
14
as
"the
wielding of a fire-arm or any other dangerous weapon...by the
offender or an accomplice on the occasion when the offence
is
committed, whether before or during or after the commission of the
offence"
[80]
Whether accused no. 1 or one of the others took it or not is also
irrelevant. It is clear that notwithstanding the fact that
no. 3
might have appropriated the necklace after the rape, that they all
associated themselves with the theft, used the threat
of force, and
are therefore also guilty of the crime of robbery, with aggravating
circumstances. The theft might well have been
an afterthought and was
not in itself accompanied with the use of any force and my views in
that regard will be reflected in the
sentence I impose in respect of
that offence.
[81]
Under all the circumstances I am satisfied that the State has proven
all of the elements of the crimes that the accused have
been charged
with and they are all accordingly convicted of the crimes of
1.
Robbery with aggravating circumstances as defined in section 1(1)(b)
of Act 51 of1977
2.
Rape in contravention of section 3 read with
section 1
,
56
(1)
58
,
59
and
60
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act, No. 32 of 2007
.
L D KEMP
ACTING
JUDGE OF THE HIGH COURT
Matter
heard on : 3, 4, 5 May, 23 August, 12 October, 13, December 2010, 4,
5 April, 3, 4, 5 October, 2010, 24, 25, 26, 27 January
2012
Judgment
delivered on: 30 January 2012
Counsel
for the State
:
Messrs Nyendwana and Coetzee
Counsel
for the Accused :
Messrs
O'Brian, Joubert & Skepe
1
On
my count, on average about 18 each
2
16
on 2; a 20, 24 and 25 on 4; a 13 and 14 on 5; a 28 and 31 on 6; a 14
and 16 on 7; a 10 on 8; a 13 on
9
and a 10 on 11
3
D3S1358,
FGA, D5S818 and D13S317
4
Vwa,
8S1179, D21S11, D18S51 and D7S820
5
D7S820
on the Rectal swab showed a short peak in the position which she
confirmed could have been a 9, and which would then correspond
with
some DNA from the complainant.
6
(440/2007)
[2008] ZASCA 13
(20 March 2008)
7
At
[79] - [80]
8
R
v Taillefer
(2004)
114 CRR (2d) 60 (SCC)
9
The
right to meaningful and informed participation in the criminal
process
-
accessed on 26 January 2012 at
http://umkn-dsp01.unisa.ac.za/handle/10500/1840
10
Shabalala
v Attorney-General of the Transvaal
[1995] ZACC 12
;
1996
(1) SA 725
(CC)
(1995 (2) SACR 761
;
1995 (12) BCLR 1593)
11
pp
33-34
12
2004
(2) SACR 584
at 596 a-b "... dit was nie in dispuut nie, dat
dit nie gese kan word dat die ondersoekwerk by die aanvang van die
saak
met skreeuende bande tot stilstand kom en dat sekere opvolgwerk
nie gedoen kan word nie. "
13
Supra,
Chapter
5 at p24
14
51
of 1977 at
section 1