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[2019] ZAECPEHC 47
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S v Nyangwa (CC25/2018) [2019] ZAECPEHC 47 (2 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No: CC
25/2018
Date
heard: 18 March 2019 – 25 March 2019
&
31 July 2019
Date
delivered: 2 August 2019
NOT
REPORTABLE
In
the matter between:
THE
STATE
And
XOLANI
NYANGWA
Accused
JUDGMENT
Goosen
J:
[1]
On the morning of 1 October 2017 Sergeant
Matila
of the
Motherwell Police Station received a report about the presence of a
body in a partially constructed house in Mvokontshi
Street. He went
to the scene and found the naked body of a young woman. The lower
portion of her torso and legs had been destroyed
by fire. The body
was still smouldering.
[2]
Sergeant
Matila
summoned members of the Local Criminal Record
Centre (LCRC) to conduct investigations of the scene. He then began
to make enquiries
regarding the identity of the deceased. He was able
to do so and established that she had been in the company of a friend
at Siyawa’s
Tavern the previous night. His further enquiries
led him to the home of the accused, who was, at that stage, not a
suspect. The
accused confirmed to him that he had been in the company
of the deceased at Siyawa’s Tavern. When asked what clothing he
had been wearing the accused produced a pair of blue jeans. Sergeant
Matila
observed what appeared to be bloodstains on the legs of
the trousers. He then arrested the accused on suspicion of
involvement
in the murder of the deceased.
[3]
The accused came before this court charged with kidnapping and
murder.
He pleaded not guilty to the charges and elected not to
disclose the basis of his defence. The prosecution case against the
accused
was founded upon a body of circumstantial evidence. Several
witnesses were called, the principal witnesses being the forensic
experts
who investigated the scene of the crime. The accused elected
to present no evidence in his defence.
[4]
It is
appropriate to begin the assessment of the evidence presented by the
state with the set of formal admissions made by the accused
in terms
of s 220 of the
Criminal
Procedure Act
[1]
.
It was admitted that the deceased found at the scene was in her
lifetime
SINOXOLO
WENDY BEYI
.
A post mortem examination was conducted on the body of the deceased
on 2 October 2017 by Dr
Annemarie
Mattheus
.
The content of the report was admitted. Dr
Mattheus
determined that the cause of death was consistent with blunt force
injuries to the head.
[5]
It was also admitted that Dr
Mattheus
took a blood sample from
the body of the deceased during the post-mortem for forensic analysis
purposes. The accused admitted also
that a bucal swab was taken from
him for forensic analysis purposes. These forensic exhibits, it was
admitted, were properly collected,
sealed and the chain of custody
kept intact until they were analysed by Warrant Officer
Igshaan
Kenny
of the Forensic Science Laboratory. The accused also
admitted the location of bloodstains and the collection of samples
from the
blue jeans seized at the time of his arrest.
[6]
Warrant Officer
Van der Vyver
conducted an analysis of the
crime scene. She prepared a sketch plan and detailed photo album of
the scene. The photograph album
contains photographs of the shack
where the accused was arrested and of the accused following his
arrest.
[7]
In the course of investigating the crime scene Warrant Officer
Van
der Vyver
collected numerous exhibits, in the form primarily of
swabs of blood found on the scene which were dispatched for forensic
analysis.
It was admitted that all such exhibits were properly
collected, sealed and kept intact until they were analysed by the
Forensic
Science Laboratory.
[8]
The crime scene consists of a partially constructed building. It has
no
windows or doors and no roof. The internal layout consists of
three rooms. They are linked by an open passage-like area. There are
two entrances to the building. One faces onto Mvokontshi Street. The
other is to the side of the building. The side entrance is
to the
passage area. Immediately to the right of this entrance there is a
small room. The passage extends into another room at
the back of the
structure and to the left opens into a larger room at the front of
the structure.
[9]
In order to facilitate understanding of the evidence I shall refer to
the three rooms as B-room (the small room to the left of the side
entrance); the A-room (the other room at the back of the structure)
and the C-room (the larger room which has an entrance onto Mvokontshi
Street). This designation corresponds with the nomenclature
used to
identify exhibits collected in each of the three parts of the
building. The body of the deceased was found in room A.
[10]
In dealing with the analysis of the evidence presented in respect of
the crime scene I
shall deal with that which was found by
Van der
Vyver
and the resulting DNA forensic analysis conducted by
Warrant Officer
Igshaan Kenny
. I have already indicated that
the chain of custody was admitted. The evidence of
Igshaan Kenny
regarding the analysis of the exhibits for matching with DNA in the
control samples collected from the deceased and the accused
went
unchallenged. It is accordingly necessary only to refer to the
outcome of this analysis.
[11]
Warrant Officer
Van der Vyver
recovered swabs from blood spots
on both the left and right concrete doorposts at the side entrance to
the building (exhibits B4
and B5). In room B she recovered two
exhibits, a pink coloured K-way cap (exhibit B1) and two lengths of
woven hair (“dreadlocks”)(exhibit
B2). The cap, it is not
disputed, belongs to the accused. It is apparent from the photographs
of the deceased that she had braided
hair in the form of dreadlocks.
The photographs of the deceased’s scalp area indicate a wound
suggestive of the tearing of
the dreadlocks (exhibit B2) from her
scalp. The post mortem report records such an injury.
[12]
The blood found at point B4 (on the right-hand side of the side
entrance) was that of the
deceased. That recovered from point B5
(left-hand side of the door) matched the DNA profile of the accused.
Further blood spatter
marks were noted in the passage area leading to
room C, both on the floor and on the walls. One of these collected
from the wall
at B8 also matched the DNA profile of the accused.
[13]
The investigation of room C pointed to this room as being the room in
which the main attack
on the deceased occurred. Warrant Officer
Van
der Vyver
recovered several exhibits from this room and recorded
the position of blood spatter on the walls and floor. She noted
the
presence of blood on a large concrete block which was lying
amongst other rubble under the window opening at the front end of the
room. There was blood spatter on that wall and several spatter marks
on the adjacent wall.
[14]
At a point on the wall nearest the passage she recovered two blood
swabs (exhibit C1 and
C2). These exhibits were found by
Kenny
to match the DNA profile of the accused.
Van der Vyver
recovered samples of the blood spatter against the adjacent wall (C9
and C11) which matched the DNA profile of the deceased. In
the
vicinity of these marks she recovered a blood swab (exhibit C5) on
the side of a shoe. The blood on the shoe matched the DNA
profile of
the accused. In the corner of the room near the concrete block a
broken watch was recovered. This was the deceased’s
watch. A
swab of it was matched to her DNA profile.
[15]
I will return to the analysis of the blood spatter which was
conducted by Warrant Officer
Bekker
later in the judgment. For
present purposes it is necessary only to record that swabs of blood
recovered from spatter marks on
the wall at C11 and in the corner at
C 18 and 19 matched the DNA profile of the deceased.
[16]
Swabs of the blood found on the concrete cinder block (exhibit C26)
matched the DNA profile
of the accused. A further swab (exhibit C26a)
was found to contain a mixed sample of DNA into which could be read
the DNA profile
of both the deceased and the accused. The analysis of
the concrete block undertaken by Warrant Officer
Bekker
indicated that the concrete block was used to inflict the head injury
described by Dr
Mattheus
in her post mortem report and her
evidence.
[17]
As already indicated the deceased’s body was found in room A.
The lower portion of
the body had been destroyed by fire. It is not
necessary to describe the destruction which is fully set out in the
post mortem
report. The examination at the scene suggested that the
deceased’s body was covered with some insulation material which
was
then set alight.
[18]
Of significance was the presence of blood spatter in the corner of
this room and against
the wall. The forensic exhibits recovered here
(exhibits A 2, 7 and 8) matched the DNA profile of the deceased.
[19]
Warrant Officer
Bekker
conducted a bloodstain pattern analysis
of various exhibits. His qualifications were not placed in dispute.
He has just under 20
years’ experience as a crime scene
investigator. He performs duties which include crime scene
investigation; forensic fieldwork;
bloodstain pattern analysis; crime
scene reconstruction and fingerprint and shoe print analysis. He has
completed a multitude of
courses which include level 1 and 2 courses
in bloodstain pattern analysis and crime scene reconstruction.
[20]
He explained that blood, as a fluid, reacts to internal and external
forces. The
combination of its viscosity and forces of gravity will
result in a similar pattern forming on an object under similar
conditions.
The pattern is therefore reproducible. Analysis of the
material on which the blood occurs and physical attributes of the
pattern
allows the investigator to infer what preceded the creation
of the pattern.
[21]
He gave several examples. A spurt of blood from an artery (i.e. under
pressure) will create
a different pattern to a droplet coming into
contact with an object. So too a blood source which is in contact
with an object will
create a different saturation pattern. This is a
contact/transfer stain. If there is a small volume of blood it will
present as
a swipe/smear. Such a transfer stain (where the blood
source is in contact with the object) differs from an impact
saturation stain.
In the case of the latter, the moving blood (acting
under a force) comes into contact with the material/object. In such
instance,
the blood itself is in free flight and impacts the material
or object or surface. Its movement on the surface creates a
discernable
pattern indicating the direction of travel from the
source.
[22]
Finally, he explained that the type of material will affect the
pattern. An absorbent material
will result in irregular margins or
edges whereas on a non-absorbent material the pattern /edges will be
elliptical or circular
and regular.
[23]
Warrant Officer
Bekker
analysed the bloodstains found on the
pair of jeans worn by the accused. It should be noted that the three
bloodstains on the left
leg of the trousers (i.e. those on the hem of
the left leg and on the shin area) were found to match the DNA
profile of the deceased.
The bloodstain on the right knee area was
found to match the DNA profile of the accused.
[24]
He stated that the bloodstain on the hem of the trouser leg was a
transfer stain i.e. that
the trouser leg was in contact with the
source of the blood. The bloodstain on the shin of the trouser leg he
described as an impact
stain. He was able to analyse it for
directionality and in his opinion the blood source was below the
stain and in close proximity
to the trousers when the blood impacted
the trousers.
[25]
These bloodstains suggested that the wearer was standing at or near
the deceased when she
was struck to cause the injury to her head. It
was his opinion that the most likely source of the blood giving rise
to the transfer
stain was the head wound suffered by the deceased.
[26]
Warrant Officer
Bekker
conducted further analysis of the
bloodstains found on the wall near the corner of room C and in the
proximity of the cinder block.
He stated that the relatively small
volume of blood on the cinder block indicates that the block was
brought into contact with
the blood source. The bloodstains noted
were elliptical in shape and radiated outwards from a single point.
It was his opinion
that the cinder block was used as a weapon.
[27]
The presence of impact saturation stains on the wall which were
elliptical but irregularly
shaped indicated that the blood was in
free flight when it struck the wall. The pattern indicated that the
main blood-shedding
event was caused in that area. The presence of
linear cast-off stains also indicated that an object on which there
was a large
volume of blood was moved or swung rapidly and that in
the process blood was flung off in free flight.
[28]
Based on his analysis and taking into account all of the bloodstain
patterns he concluded
that the wearer of the jeans was standing at
the body of the deceased when the cinder block was used to deliver
one or more blows
to the head of the deceased. In his view, this
occurred in room C.
[29]
This accounts for the objective evidence recovered from the crime
scene. It establishes
beyond any doubt that the accused was present
at the scene (both in rooms B and A) when the assault upon the
deceased occurred.
It is common cause that, at the time of his
arrest, the accused had a wound on the ring finger of his right hand.
Although the
accused asserted a version during cross-examination of
the witnesses as to how this had occurred, he did not present any
evidence
in this regard. On the probabilities this wound is the
source of the accused’s blood which was found on the crime
scene and
on the trousers.
[30]
Before turning to consider the other circumstantial evidence which
bears on the matter,
it is apposite to record that a consideration of
all of the objective evidence gathered at the crime scene points to
the following
sequence of events:
[31]
The deceased and perpetrator entered the building via the side
entrance. The assault on
the deceased commenced in room B. The
tearing of the dreadlocks from the scalp of the deceased suggests a
very violent struggle.
The deceased was then taken to room C. The
multiple injuries noted during the post mortem point to a sustained
assault. At some
point she is overpowered and finds herself on the
ground. She is then struck on the head with the cinder block using
considerable
force. The fractured skull is indicative as is the blood
spatter pattern found. The deceased is then dragged to room A. This
is
suggested by the drag marks observed by Van der Vyver in room C.
The presence of blood on the wall in room A suggests the assault
continued. Her body is then set alight.
[32]
The only question is whether the objective evidence recovered from
the scene establishes
that the accused was the person who perpetrated
the assault upon the deceased. Before answering that question it is
necessary to
sketch a final piece of the picture painted by the
evidence.
[33]
This emerges from the evidence of two witnesses. The first was
Zintle
Mabodi
. She said that at the time she was the accused’s
girlfriend. In the early hours of the morning of 1 October 2017 she
was
at Siyawa’s Tavern. She was called outside by the accused.
She noticed that he was wearing a red t-shirt. He was previously
wearing a different t-shirt. She asked him why he had changed and he
said his shirt was dirty. After speaking with him she went
back into
the tavern. She saw him outside again later. At that stage he was
with the deceased whom she knew. She did not appreciate
the manner in
which he was holding the deceased. She asked him for the keys to his
house. He refused. They then quarrelled. The
accused apparently
assaulted her. He then walked her to her parental home and left. She
returned to the tavern later but the accused
was not there. She then
went home to sleep. She identified the pink K-way cap as belonging to
the accused. She could not recall
whether he was wearing the cap that
evening.
[34]
Masibulele Mntuyendwa
also testified. She said that she was in
a love relationship with the accused. She met him at a tavern on the
night before he was
arrested. He asked her to accompany him home.
They travelled home in a car with some of his friends. The accused
was wearing a
white top. They went to his house. He changed his top
and put on a red t-shirt. He then left her at the house saying that
he was
going to Siyawa’s Tavern.
[35]
The accused returned home much later. According to her, they had
sexual intercourse when
he returned. She noticed that he had an
injury on his hand which was not there before. Later they were awoken
by the sound of the
community members outside. The police then
arrived at the house. She said that when asked about the injury to
his finger he said
he had injured it on a fence.
[36]
The evidence of
Zintle
Mabodi
places the accused in the
company of the deceased at Siyawa’s tavern in the early hours
of the morning of 1 October 2017.
[37]
I have
already noted that the evidence of the state is circumstantial in
nature. It is, however, uncontested. No evidence was presented
by the
accused. In S v
Musingadi
and Others
[2]
it was stated that:
We
should perhaps remind ourselves at this stage that there is nothing
wrong in principle with circumstantial evidence. On the contrary,
it
can sometimes be compelling. In the prelude to their discussion
of
R v Blom
1939 AD 188
and the rules of inferential
reasoning, Zeffertt, Paizes and Skeen
The South African Law
of Evidence
rightly say at 94:
'Circumstantial evidence
is popularly supposed by laymen to be less cogent than direct
evidence. This is, of course, not true as
a general proposition. In
some cases, as the courts have pointed out, circumstantial
evidence may be the more convincing
form of evidence. Circumstantial
identification by a fingerprint will, for instance, tend to be more
reliable than the direct evidence
of a witness who identifies the
accused as the person he or she saw. But obviously there are cases in
which the inference will
be less compelling and direct evidence more
trustworthy. It is therefore impossible to lay down any general rule
in this regard.
All one can do is to keep
in mind the different sources of potential error that are presented
by the two forms of evidence
and attempt, as far as this
is possible, to evaluate and guard against the dangers they raise.'
[38]
The
approach in assessing circumstantial evidence is to consider the
evidence in its totality in determining whether the inference
sought
to be drawn is consistent with all the proven facts and whether the
proved facts exclude every reasonable inference save
that sought to
be drawn.
[3]
[39]
In
S
v Reddy
[4]
Zulman AJA quoted
Best
on Evidence
as follows:
“
'The
elements, or links, which compose a chain of presumptive proof, are
certain moral and physical coincidences, which individually
indicate
the principal fact; and the probative force of the whole depends on
the
number, weight, independence, and consistency
of
those elementary circumstances.
A number of
circumstances, each individually very slight, may so tally with and
confirm each other as to leave no room for doubt
of the fact which
they tend to establish. . . . Not to speak of greater numbers,
even two articles of circumstantial evidence,
though each taken by
itself weigh but as a feather, join them together, you will find them
pressing on a delinquent with the weight
of a mill-stone. . . .
”
[40]
This is indeed a case where the number, weight, independence and
above all consistency
of the facts established by the objective
evidence weave a network of facts which allow for no other inference
than that the accused
perpetrated the violent assault upon the
deceased and thereby caused her death. His DNA is found on the
scene in several
blood deposits. These appear in the rooms where the
assault was commenced and where its deadly result occurred. The blood
is on
the floor and walls. His DNA is found on the object which, on
all the probabilities, was used to inflict the deadly blow to the
deceased’s head. His cap is on the scene. His blood is on
the deceased’s shoe. Finally, blood is found on a pair
of jeans
he admits he wore. The position and nature of these bloodstains point
to him standing over the deceased when the deadly
blow was struck.
[41]
No explanation has been offered by the accused. In my view, the only
reasonable inference
which is consistent with all the proven facts is
that the accused carried out the assault upon the deceased and that
in doing so
he manifested a direct intention to kill the deceased. Mr
Bodlo
, representing the accused, conceded as much.
[42]
As already stated the accused was charged with kidnapping and murder.
Mr
Stander
, on behalf of the state, fairly and properly
conceded that there is no basis upon which it may be inferred that
the deceased was
taken to the abandoned building against her will. He
accordingly conceded that on the charge of kidnapping the accused
must be
acquitted.
[43]
While conceding a conviction on the count of murder Mr
Bodlo
argued that the prosecution had not proved that the murder was
premeditated or planned as alleged in the indictment. He submitted
that the brutality of the assault does not, in itself, suggest that
it must have been planned. Mr
Stander
, in arguing to the
contrary, submitted that the court was entitled to take into account
not only what occurred at the scene but
also the accused’s
subsequent conduct. In this regard he submitted that the presence of
blood at the entrance suggests that
the assault commenced prior to
entry into the building. He submitted further that the burning of the
body and that the accused
thereafter returned home to another woman
suggests a degree of planning. Finally, he submitted that the accused
was aware of what
the state case was but had failed to explain that
the murder was not planned.
[44]
In developing this argument in further submissions he submitted that
a court may draw an
inference relating to the nature of an accused’s
intention in committing an offence where knowledge of what transpired
is
particularly in the knowledge of the accused and he fails to
testify. He referred to the unreported judgment of Jansen J in
S
v Eddy Appolis
(delivered in 1997) where the learned judge
held that the intention to kill may be inferred in such
circumstances. While acknowledging
that what is here sought goes
further than the inference of intention drawn in that matter, Mr
Stander
submitted that the same principle applies.
[45]
In this submission Mr
Stander
may well be correct. I need not,
however, decide the issue. That is so because the overriding
consideration is that the inference/inferences
to be drawn must be
consistent with all the proven facts.
[46]
It is true that the accused gave no version. He did that knowing the
consequences that
may flow from his failure to testify. His failure
to testify, however, means only that there is no evidence to gainsay
the state
case. It does not mean that an inference can be drawn that
the murder was planned if there is no factual basis upon which such
inference can be drawn. The objective facts in this matter do not, in
my view, support an inference as being the only reasonable
inference,
that the accused proceeded to the building with the deceased having
formulated a prior intention to kill and that what
transpired there
gave effect to that plan.
[47]
As to the first submission, regarding the commencement of the assault
before entry to the
building, I am not persuaded that the presence of
both the deceased and accused’s blood at the entrance
necessarily means
the assault started before entry. It is at least
reasonably possible that the blood came to be deposited there after
the assault
had commenced inside the building, perhaps during the
initial struggle.
[48]
The accused’s conduct after the event also does not, in my
view, speak to prior planning.
It certainly suggests extraordinary
callousness. The attempt to destroy the body by setting it alight
does not necessarily evidence
prior intention to kill the deceased,
it may equally reflect a calculated desire to get rid of evidence
after the fact. It follows
that I am not persuaded that the state has
been able to establish beyond a reasonable doubt that the murder was
premeditated.
[49]
In the result I make the following order:
1. The
accused is acquitted and discharged on count 1, kidnapping.
2. The
accused is found guilty on count 2, murder.
__________________________
G.G.
GOOSEN
JUDGE
OF THE HIGH COURT
Obo
the State:
Adv M. Stander
NDPP,
Uitenhage Road, North End, Port Elizabeth
Tel
(012) 842 1400
Obo
the Defence:
Mr X. Bodlo
Legal-Aid
South Africa (Port Elizabeth)
Uitenhage
Road, North End, Port Elizabeth
Tel
(041) 408 2800
[1]
Act No, 51 of 1977
[2]
2005 (1) SACR 395
(SCA) at 402h – 403a
[3]
S v
Reddy and Others
1996 (2) SACR 1
(A) at 8c-e
[4]
Supra
at 8h-9a