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2023
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[2023] ZAFSHC 379
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S v Kalata (34/2023) [2023] ZAFSHC 379 (7 September 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case Number: 34/2023
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In the matter between: -
THE STATE
and
ZENZILE SIMON
KALATA
ACCUSED
CORAM:
M.M. MATSHAYA, AJ
HEARD
ON:
28 AUGUST TO 05 SEPTEMBER 2023
DELIVERED
ON:
07 SEPTEMBER 2023
INTRODUCTION
[1]
The accused Mr Zenzile Simon Kalata is facing 13 charges. In respect
of counts 1,2,3,7 and 12 the state
alleges that he raped different
women in contravention of
section
3 of the Sexual Offences and Related Matters Amendment Act
[1]
(SORMA). All of them were allegedly committed at Bothaville except
count no.7 which was in Viljoenskroon. They were allegedly committed
on 18 April 2016, 9 July 2017, 4 December 2017, 13 October 2019 and 4
April 2021, respectively. The state invoked the provisions
of
section
51(1) of the Criminal Law Amendment Act
[2]
(Minimum Sentencing Act) because the respective complainants were
either raped more than once or the accused allegedly inflicted
grievous bodily harm on the complainant or the rape was committed in
furtherance of a common purpose or conspiracy with unknown
persons,
so they allege.
[2]
In respect of counts 4,5,8 and 10 the state alleges that the accused
raped 4
other
different women and invoked the provisions of
section
51(2) of the
Minimum Sentencing Act
[3]
.
Counts 4 and 8 were allegedly committed in Viljoenskroon whereas 5
and 10 at Bothaville. These offences were allegedly committed
on 17
February 2018, 9 October 2019, 24 October 2019 and 7 July 2020,
respectively. The remaining 4 charges are
Robbery
with Aggravating circumstances
read
with the provisions of
s51(2)
of the Minimum Sentencing Act.
In respect of count 6 the state alleges that the accused robbed the
same complainant as in count 5 of her Mobicell cellular phone.
In
respect of count 9 the state alleges that the accused robbed the
complainant in count 8 of her handbag and its contents. In
count 11
the state alleges that the accused robbed the complainant in count 10
of her R25 cash and Mobicell cellular phone and
in respect of count
13 the state alleges that the accused robbed the complainant in count
12 R29 cash and a Name Tag. In all the
robbery counts the state
alleges that aggravating circumstances were the use of a knife before
or during or after the commission
of the respective offences.
[3]
Adv. Ferreira from the Director of Public Prosecutions
(DPP’s office) Bloemfontein appeared for the state and
the accused is legally represented by Adv Mokoena from the
Bloemfontein
Justice Centre. He pleaded not guilty to all the charges
and the basis of his defence is a bare denial on all the counts. The
evidence
of the state was presented in a staggered fashion and
resultantly, the exhibits handed in are not in chronological order as
will
become apparent from the evidence.
Evidence
for the state
COUNT 1
[4]
The complainant Ms PMM testified that during the early hours of
18 April 2016 she was coming from
a tavern at Bothaville in the
company of her friend DK. An unknown male person whose face was
masked appeared and grabbed DK who
managed to clap the said unknown
male person and ran away. The unknown man demanded money from PMM and
grabbed her on her wrist.
He drew out a knife and stabbed her on the
chest, head and back and dragged her to nearby bushes where he
undressed her tight and
panties
and inserted his penis into her vagina without her consent and
had sexual intercourse with her without a condom. After he was done
he ran away and PMM went to a nearby homestead and asked for help.
This is where she met Mr LMB who called the ambulance and the
police.
[5]
PMM sustained 3 open wounds as a
result of the stabbing and was later examined at Bongani hospital
in
Welkom by
Sr Ceba. Her medical report was
admitted as Exh C. The nurse observed the following injuries on her:
a 6cm scratch mark on the left
arm, a stab wound on the anterior
chest and another scratch mark at the back. Sr Ceba also took some
specimens from PMM’s
private parts for possible DNA
investigations and the document relating to the sexual assault
evidence collection kit which contained
the specimens bearing the
unique reference number
09D1AA5452
was admitted as Exh D. The photo album that was compiled by W/O D.K.
Mabitla depicting the scene of the alleged rape was admitted
as Exh
E.
[6]
PMM testified that she could not identify the person who raped her
because his face was
masked. During cross examination she
confirmed that she was in a love relationship during the time of the
incident.
Mr LMB also testified and confirmed the evidence of PMM
pertaining to her arrival that morning seeking help. During cross
examination
he testified that PMM was drunk as she was smelling of
alcohol when she arrived at his house.
[7]
Captain Tshepo Elias Maleme (Maleme) testified that he
is a police officer and used to be attached
to the Welkom Family
Violence, Child Protection and Sexual Offences Unit
(FCS Unit) of the South African Police
Service (the SAPS). On 19 April 2016 he transported PMM to Bongani
hospital for medical examination.
He received the medical report
(J-88) that was admitted as Exh C as well as the sealed evidence
collection kit with seal no.
09D1AA5452
from Sr Ceba. He kept the sealed evidence kit in his safe until it
was submitted at the Forensic Science Laboratory (FSL) in Pretoria
on
25 April 2016 and the acknowledgement of receipt from the FSL was
admitted later as Exh JJ. During cross examination he confirmed
that
he made his statement pertaining to the chain of custody on 8
February 2023 after being approached by Capt Van der Merwe.
[8]
Sgt Nomthandazo Mtengwane (Mtengwane) a
police officer who used to be attached to the Welkom FCS Unit
testified that on 10 July 2017 she received the J-88 (ie, Exh N) of
the complainant in respect of counts 5 and 6 as she was the
then
investigating Officer (I/O) of Bothaville CAS 94-10-2019. There were
2 suspects that were arrested in the
matter
of which one was the accused in this case even though the case was
later withdrawn. She wrote a covering letter dated 20
November 2019
to the FSL sending through the buccal samples that were taken from
the accused by one Sgt Lebone (Lebone). The covering
letter was later
marked Exh KK and the accused’s DNA reference sample was
earlier admitted as Exh P. When these were sent
to the laboratory the
accused’s buccal sample was sealed as per seal no.
18DBAA1929
of which it was contained in an evidence bag with seal no.
PA4003835543. The acknowledgement of receipt from the laboratory was
admitted as Exh LL. During cross examination she confirmed that she
was not present when the said buccal sample was taken from
the
accused.
COUNT 2
[9]
The complainant Ms MMP testified that she lives at Kgotsong,
Bothaville. During the early hours
of 9 July 2017 just before 3h00
she was going home coming from Dipiding tavern with her cousin PL. An
unknown man whose face was
masked appeared and chased them. MMP
tripped and fell and the man caught up with her whilst PL
successfully ran away. The man put
a knife on her ribs and undressed
her leggings and panties and inserted his penis into her vagina
without her consent and had sexual
intercourse with her. When he was
done, he took away her Samsung cellular phone valued at R2000 and
went away with it. MMP went
to a nearby house and found 2 ladies and
a gentleman and asked them to help her. As they were accompanying her
home they met up
with PL and her other cousins who were looking for
her. She narrated the rape incident to PL.
[10]
They accompanied her to the police station where she made a statement
and went home afterwards and did not
bath. The following day she was
transported by the police to Bongani hospital where she was examined
and some tests were done.
She also received counselling. Her J-88 was
admitted as Exh F and the document pertaining to the samples that
were taken from her
was admitted as Exh G. The unique reference
number for the sealed specimens is
15D1AC4402
. During cross
examination by Mr Mokoena she agreed that she was drunk during the
rape incident even though not very much. She was
also confronted
about her J-88 where it is noted that she had bathed as at the time
of her examination but she maintained that
she had not. It was
submitted by Ms Ferreira that PL is now untraceable and she proceeded
to lead further evidence.
[11]
Cst Joyce Tseleng Kgosing (Kgosing) a police officer who is a member
of the Welkom FCS Unit testified that
on 10 July 2017 she was at
Bothaville conducting investigations in her cases when she was
instructed by her commander to assist
in a case whose investigating
officer was D/W/O Tait (Tait). She assisted by transporting MMP to
Bongani hospital. This is where
she handed over a Sexual Assault
Evidence Collection Kit (the so called rape kit) to Sr Ceba who
examined MMP. After her examination
she received the J-88 from the
nurse as well as the sealed rape kit with seal number
15D1AC4402
with identifying numbers PA4002680710 and PAD001786542. The following
day she handed over these to Tait for further handling after
she had
kept them overnight in a lockable safe. This medical report and rape
kit were admitted as Exh F and G, respectively. During
cross
examination by Mr Mokoena she testified that she did not know what
Tait did with the rape kit after she handed it over to
him and
further did not know what eventually happened to it.
COUNT
3
[12]
The complainant in this count Ms DM testified that she resides at
Kgotsong in Bothaville. During the early
hours of 4 December 2017 she
was walking home from Dipiding tavern alone. As she was near Tokologo
shop, 4 unknown male persons
approached her of which one had his face
masked. The one with the masked face threatened her not to make noise
otherwise he was
going to stab her. He put a knife on her ribs,
pressed it and threatened her to co-operate. 2 of them grabbed her
hands and the
other one her feet. The masked man tried to clap her
but she blocked and sustained some bruises on her face
during the course of blocking. They grabbed her and pulled her
with her braids until they were next to the tennis court. This is
where the masked man undressed her short pants and underwear and
inserted his penis into her vagina without her consent and had
sexual
intercourse with her without using a condom. During the intercourse
he had placed the knife on the ground.
[13]
When he was done another one wanted to have sexual intercourse but
there was a man who appeared and they
all ran away. The said man
whose name she did not know except where he resided, helped her and
waited for her to dress up and accompanied
her to the police station
where she reported the matter. She was subsequently transported to
Bongani hospital in Welkom without
bathing where she was examined.
Her
panties were taken for DNA tests.
Due to delays in investigations she did not want to proceed with the
case anymore as the matter
was taking its toll on her. Her
grandmother to whom she reported the rape incident was now old and
mentally disturbed.
[14]
Mr JMM testified that on 4 December 2017 at about 3h00 he was coming
from Lapologa tavern in Bothaville
going home. When he was close to
the tennis court he heard a woman screaming and crying.
He went to check
and as he was approaching 4 male persons
ran away leaving a woman on the ground. This turned out to be the
complainant in this
count. He observed that she was bleeding on the
face
,
and
blood was
coming out of her mouth and her jersey had grass. She was naked on
the bottom part of her body and she wore her pants
and reported that
she was raped by the gentleman who was wearing a red top hoody and
had a mask on his face who was amongst the
4. He took her to the
police station where he made a statement.
[15]
Kgosing was also involved in this count as the investigating officer.
She testified that on 4 December 2017
she transported DM to Bongani
hospital. This was where she gave Sr Qhathatsi a rape kit. After DM’s
examination she received
from the said nurse the J-88 (ie, Exh H-1)
as well as the sealed rape kit with serial no.
15D7AA0101
with
identifying numbers PAD001343690 and PA4002450062 (ie, Exh J). She
kept the rape kit in a lockable safe and on 11 January
2018 she
handed it over to one Sgt Mohai who transported it to the FSL in
Pretoria and few days later she received an acknowledgement
of
receipt from the FSL in her pigeon hole.
COUNT
4
[16]
The complainant in this count Ms MAT testified that she resides at
Phahameng in Viljoenskroon. During the
early hours of 18 February
2018 at about 2h00 she was coming from Lapologa tavern alone going to
her boyfriend’s home. On
the way next to the clinic an unknown
man approached her and threatened her by putting a knife on her waist
and threatened to stab
her if she made noise. He took her to the
direction of Ntshwanatsatsi School where he pushed her down to the
ground and undressed
1 side of her jean pants
and inserted his penis into her vagina without her consent and
had sexual intercourse with her without using a condom. When he was
done he ran away and MAT dressed up and went to her boyfriend’s
home where she first met the boyfriend’s brother one
TK and
narrated to him what had happened and later narrated to her boyfriend
LK.
The said
TK has since passed away few months
ago.
[17] Police
were called.
They came and fetched her
and took her to Viljoenskroon police station where she opened a case.
From there she was taken to Pax
clinic where she was examined and
some samples taken from her. The police took her to the scene of
crime where she pointed out
certain points and photos were taken.
This is the photo album that was admitted as Exh M. During cross
examination she conceded
that she was drunk but not very
much.
[18] W/O
William Magadlela (Magadlela) testified that he is a member of the
SAPS and attached to the FCS Unit
in Kroonstad. He was the
investigating officer in some of the cases which are the subject of
these proceedings. In respect of this
count, on 18 February 2018 he
transported the complainant to Pax clinic in Viljoenskroon for the
purpose of medical examination
and handed over the sexual assault
evidence collection kit to Sr Mingi who examined the complainant. He
received the J-88 afterwards
and this refers to Exh K in these
proceedings. Furthermore, he received the sealed evidence collection
kit with seal no.
16D1AD7659
with identifying no.
PA4003337640. See Exh L. The evidence collection kit was handed over
to the FSL in Pretoria by one Cst Mothebang
Teboho William (William)
on 30 January 2019. The acknowledgement of receipt from the
laboratory was marked Exh CC. During cross
examination he conceded
that he did not always have the exhibits in respect of count 4 under
his lock and key since somebody else
handed them over to William who
transported them to the LAB.
[19]
He also testified that he took the statement of one TK who has since
passed away who was the first person
to whom MAT first reported the
incident. The statement was admitted as Exh DD. During cross
examination he conceded that it was
not commissioned.
COUNTS 5 AND 6
[20]
The complainant in these counts did not testify as she was reportedly
untraceable.
COUNT 7
[21]
The complainant in this count Ms MSS testified that she is a resident
of Phahameng in Viljoenskroon. On
13 October 2019 at about 2h00 she
was coming from Lerureng tavern going home alone. An unknown male
person approached her and joined
and walked with her as it seemed
they were heading to the same direction. She did not look at his face
and could not identify him.
As MSS was about to turn at the corner of
the street the unknown person drew out a knife that was sword like
and placed it on her
ribs and ordered her not to scream and comply
with instructions. The picture of the knife as drawn by MSS was
admitted as Exh AA.
They kept on walking until they were next to
Thabang School on an open veld. She tried to run away but couldn’t
run far and
he caught up with her.
[22]
His knife fell down and he took out a 2
nd
one that looked
like an okapi and ordered her to undress. He caused her head to bend
forward and he undressed her jeans and underwear
to the ankles and
inserted his penis into her vagina from the back without her consent
and had sexual intercourse with her. He
had sex with her a total of 3
times with intermittent breaks of about 3 and 5 minutes in between,
respectively. He ran away when
they heard movement and voices of
people who were coming from the tavern. A black car approached and
stopped and helped by transporting
her to her boyfriend’s place
which was not far from the scene. She subsequently narrated the
incident to her boyfriend by
the name of MAM and the driver of the
black car as they were on the way to the police station.
[23]
She eventually laid charges at the police station at about 8h00 and
from there was taken to Pax clinic where
she was examined by the
nurse and some DNA samples were taken from her and her underwear.
From there she took the police to the
scene where they took
photographs. This photo album is Exh S. During cross examination she
conceded that she was drunk as she was
on the way home because she
had been drinking alcohol since 18h00 the previous evening. She also
testified that the 2
nd
sexual encounter was a continuation
of the first one as she lost balance and fell on her knees.
[24]
Mr MAM testified and confirmed the testimony of MSS as far as it
relates to him. He added that MSS handed
to him a black top which the
unknown man allegedly laid on the ground where he raped her. They
gave this to the police. Lastly,
he added that at the scene they
found MSS’s other shoe that was apparently left at the scene.
[25]
Magadlela also testified pertaining to this count that on 13 October
2019 he transported MSS to Pax clinic
for examination. He also handed
the evidence collection kit to Sr Menqe. He received the J-88 and
this was marked Exh Q. He also
received the sealed evidence kit with
seal no.
15D1AC7993
with identifying number PA4002695893 from
the nurse which he kept in his safe until it was transported by
Skynet courier service
to the FSL. See Exh R. The acknowledgement of
receipt from the LAB was marked Exh EE. The said exhibits that were
sent to the laboratory
were accompanied by a covering letter which
listed the exhibits to be analysed. Refer to Exh FF.
[26]
Sgt William Olifant (Olifant) testified that he is a member of the
SAPS attached to the tracing unit. On
26 October 2019 he transported
a sealed evidence bag with seal no. PAD001790288 from Kroonstad
office to the FSL. We now know that
this evidence bag contained swabs
from MSS. Upon handing over the evidence bag at the FSL he received
an acknowledgement of receipt
which he filed in his office.
COUNTS 8 AND 9
[27]
The complainant Ms MEG testified that she is a resident of Ramolotsi
area in Viljoenskroon. On 24 October
2019 at about 16h30 she was
coming from work walking alone in an open veld. An unknown male
person who was wearing a 2 piece blue
overall approached her from
behind. This person had his face covered with a bandela to mask it.
He demanded money and she denied
having any and gave him some coins.
Thereafter he grabbed her and said “let’s go you are
going to give me vagina.”
He pushed her with his elbow until
they were at the bushes. This is where he demanded MEG’s
cellular phone but she threw
it to the tree. The unknown man found a
box and laid it on the ground and caused her to lie on it. He
undressed her pants and took
out a condom and inserted it on his
penis and then inserted his penis into her vagina and had sexual
intercourse with her without
her consent. When he was done he took
out the condom from his penis and threw it to the ground.
[28]
He subsequently left and disappeared and MEG went to pick up her
phone from where she threw it and eventually
left and went to call
out one S to call a certain J who called the police. MEG and the
police went to look for the unknown man
but in vain. Later, they
proceeded to the scene where the police from the Local Criminal
Record Centre
(LCRC) found the condom
and also took photos of the scene. The photo album pertaining to this
scene is Exh V. From there MEG was
taken to the police station and
from there to Pax clinic where she was examined and some swabs were
taken from her private parts.
During cross examination she confirmed
that the condom was picked up by the police officer from LCRC in her
presence.
[29]
Magadlela also testified pertaining to these counts that on 24
October 2019 he transported MEG to Pax clinic
for medical
examination. He gave Dr Du Plessis the evidence collection kit. He
later received the J-88 which was admitted as Exh
T. He also received
the sealed sexual assault evidence collection kit from the doctor.
See Exh U in this regard. He kept the said
exhibits like in the other
cases until they were submitted to the FSL. He also visited the crime
scene in this matter where a member
of the LCRC picked up a used
condom. See Exh V.
COUNTS 10 AND 11
[30]
The complainant in these counts Ms MJM testified that she resides at
Kgotsong area in Bothaville. On 7 July
2020 at about 19h00 she was
walking on
the street alone coming from
the market going home. She was carrying some food and had a Mobicell
cellular phone and had R25 cash
in her bra. She met an unknown male
person who drew out a knife and pointed it at her throat and made her
to turn back to the direction
where she was coming from. This man’s
face was covered with a mask. The man caused her to lie down and
undressed her skirt
and tight pants and he inserted his penis into
her vagina without her consent and had sexual intercourse with her.
When he was
done he wanted to take the R25 from her bra but MJM took
it out herself and gave him. He also took away her cellular phone and
ran away. The list of her stolen property was admitted as Exh BB.
[31]
MJM dressed up and took the food and went home where she found her
mother PEM. She reported what had happened
to her and took her
mother’s cellular phone and phoned the police. She was
subsequently taken by the police to Bongani hospital
where she was
examined. She had not bathed yet during her examination. There was no
cross examination.
[32]
MJM’s mother PEM testified and confirmed MJM’s testimony
in as far as it relates to her. In
addition, she testified that MJM’s
clothes were full of grass when she arrived and she was crying.
[33]
Lebone testified that he is a member of the SAPS attached to the
Welkom FCS Unit. On 8 July 2020 he transported
MJM to Bongani
hospital for medical examination assisting Sgt Nyofane (Nyofane) who
was the I/O. After her examination he received
from Sr Ceba the J-88
of MJM which was marked Exh W. He also received a sealed Sexual
Assault Evidence Kit as per Exh X. He took
them and locked them in
his safe until Exh X was transported to the FSL in Pretoria. During
cross examination he conceded that
he did not know until when he kept
Exh X under his care and custody and also did not know who
transported it to the FSL.
COUNTS 12 AND 13
[34]
The Last complainant in respect of these counts Ms SBM testified that
she is also a resident of Kgotsong
in Bothaville. On Sunday the 4
th
of April 2021 at about 6h00 she was walking to the shops. Whilst at
the corner of Snymas church she met an unknown male person
who had a
mask on his face who dragged her with her hands to the bushes. He
forced her to lie down and he undressed 1 leg of her
jean pants and
underwear and produced a knife and threatened to stab and kill her
with it if she screamed. She even sustained scratch
marks on her
neck. After that he inserted his penis into her vagina without her
consent and had sexual intercourse with her without
using a condom.
When he was done he assaulted her on the head with fists and clapped
her. She sustained bruises and scratch marks
below the left eye and
face as a result of the assault.
[35] She
further testified that after assaulting her he took away from the
ground her R25 cash and a name tag
that had fallen earlier and he ran
away. SBM dressed up and went back home where she reported the matter
to her boyfriend, TS.
They both went to the police station to report
the incident. The police took her to Bongani hospital where she was
examined. TS
testified as well and confirmed the testimony of SBM in
as far as it relates to him. In addition, he testified that SBM’s
jacket had mud at the back as if she had been lying on the mud.
[36]
W/O Elonah Skolas (Skolas) testified that she has a National Diploma
and a Bachelor of Technology Degree in Bio-Technology
from Tshwane
University of Technology. She is a forensic analyst in the Forensic
Data Management section of the FSL of the SAPS
in Pretoria. On 10
February 2023 she compiled the analysis report which was admitted as
Exh HH. In summary, upon analysing the
2 reference samples that were
taken from one Kalata (one of which is the subject of Exh P)
pertaining to Bothaville CAS 135-7-2017
and 94-10-2019 (ie, counts 2
and 8), they matched with the reference samples that were taken in
respect of the other charges in
this case whose CAS numbers are
listed in full on Exh HH. During cross examination she disputed the
defence assertion that the
DNA samples that matched the various
reference samples were not those of the accused.
[37]
Capt Stephanus Jacobus Van der Merwe (Van der Merwe) testified that
he is a member of the SAPS stationed
at Thabong FCS Unit. He was not
the initial I/O of these dockets but received a DNA Lead report
compiled by Skolas pertaining to
all the cases at hand. This is the
report that was admitted as Exh HH. In May 2022 he received the
dockets involved as mentioned
in the Lead report of which some were
already closed as undetected. From the report the accused was linked
through DNA evidence.
He started tracing him until he was arrested in
Bothaville on 27 July 2022. On 29 July he obtained a buccal sample
from him as
per Exh H which he sealed with reference no.
21DBA0225TF
.
He also handed the accused a certificate confirming that he was
warned that he was linked by DNA evidence. See Exh MM. Van der
Merwe
personally submitted the accused’s buccal sample at the FSL on
3 August 2022 and the acknowledgement of receipt was
admitted as Exh
NN.
[38]
Van der Merwe brought an unused Sexual Assault Evidence Collection
kit and performed a demonstration with
the various components of the
kit how the process of taking evidence from a sexual assault victim
unfolds up to the stage of sealing
the bag. During cross examination
he confirmed that he did not follow up on the top that was allegedly
laid down by the perpetrator
when raping MSS. He also conceded that
the statements of Lebone and Maleme pertaining to the chain of
custody should have been
obtained and filed immediately.
[39]
W/O Prince-Eddie Mmushi (Mmushi) testified that he has a BSC Degree
in Microbiology obtained from the University
of Limpopo and is
currently working at the Biology Section of the FSL as a Forensic
Analyst and a Reporting Officer. The LAB received
the respective
sealed evidence bags relating to all the victims in this case with
their respective CAS numbers and he analysed
them. DNA profiles were
found and stored in their database at the LAB. On 10 November 2022
during the course of his duties he obtained
2 reference samples as
listed in Table 1 of Exh OO (ie, his first report) and Exh PP (his
last report). We now know that these
were obtained from the accused
as per Exh H and P. Upon analysing them their DNA profiles matched.
In turn he compared the 2 reference
samples of the accused with the
respective DNA profiles that were donated to the respective victims
by the perpetrator and his
findings were that they all matched.
The
defence case
[40]
After closure of the state’s case the accused Mr Kalata
testified in his defence that prior to his
arrest he was living at
Naledi section, Bothaville with his grandmother. Prior to that he was
living with his mother in a farm
in Viljoenskroon until she passed
away in 2015 and that is when
he
relocated to Bothaville. He denied any involvement in all the
offences and also denied ever meeting the respective complainants.
He
also denied knowledge of the alleged masks, knives and blue overall.
Lastly, he denied that his DNA was found on the respective
complainants. During cross examination by Ms Ferreira he still
petitioned his innocence.
[41]
After closure of the defence case both parties addressed the court.
In essence, Ms Ferreira argued that
the DNA evidence links the
accused to all the counts and prayed for a conviction except counts 5
and 6 in respect of which the
state did not lead evidence of the
complainant because she’s untraceable. To support her case, she
asked the court to observe
the striking similarities in the manner in
which the offences were committed that there was same
modus
operandi
.
She conceded though that no probative value could be attached to the
statement of MJK that was admitted in terms of
section
3 (1)(c) of the Law of Evidence Amendment Act
[4]
because it was not commissioned.
[42]
Mr Mokoena welcomed the latter submission by Ms Ferreira. He
addressed the court at length and I do not
intend to bore this
judgment by regurgitating his submissions except to refer whenever
necessary. In a nutshell, he submitted that
the chain of evidence
pertaining to the DNA evidence was not proved by the state on counts
2,3,10 and 12 and should this argument
prevail counts 11 and 13
should automatically collapse as they rely on counts 10 and 12
respectively, through DNA evidence. Even
though he did not say it in
so many words, he somehow acknowledged that the chain of evidence
pertaining to the other counts could
not be faulted.
THE
ISSUES
[43]
The main issue for determination is whether the accused is the person
who raped and robbed the respective
complaints as alleged by the
state. Furthermore, the reliability of the chain of evidence
pertaining to the DNA evidence was vehemently
challenged by the
defence.
THE
ONUS OF PROOF
[44]
The onus of proof in a criminal case rests upon the state to prove
the guilt of the accused beyond reasonable
doubt. In
Van
der Meyden
[5]
it was held that:
“
The onus of
proof in a criminal case is discharged by the State if the evidence
establishes the guilt of the accused beyond reasonable
doubt. The
corollary is that he or she is entitled to be acquitted if it is
reasonably possible that he or she might be innocent.
”
EVALUATION
[45]
In
S
v Chabalala
[6]
the court stated that:
“
The correct
approach is to weigh up all the elements which point towards the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused's guilt. The result may prove that one scrap of evidence or
one defect in the case for either party (such as the failure
to call
a material witness concerning an identity parade) was decisive but
that can only be an ex post facto determination and
a trial court
(and counsel) should avoid the temptation to latch on to one
(apparently) obvious aspect without assessing it in
the context of
the full picture presented in evidence.”
[46]
The state did not lead evidence in respect of counts 5 and 6 by
reason of non- traceability of the complainant
and consequently the
accused is entitled to an acquittal.
[47] I
had occasion to observe all the complainants when they testified.
Even though some became emotional during
the proceedings, in overall
they gave a clear picture of the events that led to the respective
charges. Their evidence was formal
in nature in that they did not
implicate the accused as they could not identify the assailant by
reason of his masked face. In
essence, it was not disputed that they
were raped and robbed (where robbery was proved). The witnesses who
testified as the so
called first reports like Mr LMB in respect of
count 1 and Mr JMM in respect of count 3 provided some consistency in
terms of the
report that was made to them. Therefore, I conclude that
the respective complainants were credible witnesses.
[48]
It is apparent from the evidence that the evidence of the respective
complainants was that of single witnesses
as they were alone during
the rape and or robbery incidents.
Section
208 of the Criminal Procedure Act
[7]
(CPA) provides that a conviction may follow on the evidence of a
single competent witness. It is settled law that the evidence
of a
single witness must be approached by the courts with caution. In
Stevens
[8]
the court said:
“
In terms of
section 208 of the Criminal Procedure Act, an accused can be
convicted of any offence on the single evidence of a competent
witness. It is, however, a well-established judicial practice that
the evidence of a single witness should be approached with caution,
his or her merits as a witness being weighed against factors which
militate against his or her credibility
.”
[49]
The complainants did not contradict themselves in all the material
aspects of the case. Even those who were
allegedly robbed did not
exaggerate the events. For example, in counts 11 and 13 they were at
liberty to inflate the robbed amounts
but they did not. Furthermore,
all the complainants did not implicate the accused. This is
indicative of their honesty and frankness
to this court. Clearly,
they have no axe to grind with the accused. Had that been the case,
one would have seized the opportunity
that he was alone in the dock
and belatedly point him out as the perpetrator. Furthermore, where
allegations of assault and resultant
injuries were made they are
confirmed by the relevant medical reports. For example, see Exh C in
respect of count 1. The only slight
blemish was on MJM who testified
that she was raped for 30 hours. This cannot be true in view of the
objective facts before this
court particularly the evidence of her
mother who testified that she arrived home at about 19h00. This does
not affect the general
veracity of her evidence on material aspects.
My suspicion as single witnesses was extinguished by the DNA evidence
as will be
demonstrated later. In the end, I am confident to
pronounce my satisfaction that the evidence of all the complainants
was clear
and satisfactory in all the material aspects of the case.
THE
DNA EVIDENCE
[50]
The state relies solely on DNA evidence to link the accused to all
the offences. I deem it apposite at this
stage to refer to case law
and set the tone regarding the regarding the approach to be adopted
when dealing with this type of evidence.
In
Bokolo
[9]
the court said:
[17]
“
Evidence of DNA profiling may be of great significance in a
given case. It is important, however, that evidence of DNA profiling
be viewed in proper perspective in each case.
[18]
Evidence that the STR profile of an accused person matches that of
a sample taken at the scene, or can be included therein, is
circumstantial
evidence. The weight thereof depends on a number of
factors. These include:
(i) The establishment
of the chain evidence, ie that the respective samples were properly
taken and safeguarded until they were
tested in the laboratory.
(ii) The proper
functioning of the machines and equipment used to produce the
electropherograms.
(iii) The
acceptability of the interpretation of the electropherograms.
(iv)The probability of
such a match or inclusion in the particular circumstances.
(v) The other evidence
in the case.
”
[51]
In
casu
,
there is no direct evidence linking the accused to the commission of
the offences and therefore the DNA profiles create a basis
for
circumstantial evidence upon which this court must apply inferential
reasoning. The principles in relation to inferential reasoning
are
well established. The standard of proof beyond a reasonable doubt in
criminal proceedings requires the application of, what
the court in
the oft-quoted case of
R
v Blom
[10]
referred to, as the two “cardinal rules of logic”:
“
In
reasoning by inference there are two cardinal orders of logic which
cannot be ignored:
(1)
The
inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.
(2)
The proved
facts should be such that they exclude every reasonable inference
from them save the one sought to be drawn. If they
do not exclude
other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.
”
See also
R
v Mthembu
[11]
.
[52]
In respect of count 1, there’s unrefuted evidence that Sr Ceba
examined PMM and took samples which
she sealed and handed over to
Maleme on 19 April 2016 who kept them under his lock and key until
the sealed exhibits were handed
over to the FSL on 25 April 2016 (ie,
6 days later). The acknowledgement of receipt was obtained as per Exh
JJ. The foreign DNA
specimens obtained from PMM were later analysed
by Mmushi and matched with the reference samples that were taken from
the accused
by Lebone and Van der Merwe as per Exh P and H,
respectively. I am satisfied that the chain of evidence cannot be
faulted. From
PMM’s testimony which was supported by her J-88
(Exh C), it is clear that the accused inflicted grievous bodily harm
when
he stabbed her with a knife during the incident. Therefore, this
matter falls under the ambit of
section
51(1) of the Minimum Sentencing Act.
[12]
[53]
In respect of count 2, on 10 July 2017 Sr Ceba took some swabs from
MMP and sealed them in an evidence bag
which she handed over to
Kgosing who locked it in her safe until the following day when she
handed it over to the I/O ie, Tait.
She did not know what happened to
the exhibit bag afterwards. For inexplicable reasons, the state did
not call the said Tait to
testify. At this stage it is not even known
how the said exhibit bag reached the laboratory.
[54]
In respect of count 3, Kgosing transported DM to Bongani hospital
where she was examined by Sr Qhathatsi.
During her examination she
took DM’s swabs and properly sealed them and handed over to
Kgosing. She kept them in her safe
until she handed them over to Sgt
Mohai (Mohai) on 11 January 2018 who transported them to the FSL.
Even though she testified that
she received an acknowledgement of
receipt from the laboratory, same was not handed in court as exhibit.
Furthermore, Mohai did
not come and testify that he indeed
transported the exhibit to the laboratory. Again there was no
explanation by the state for
the non-calling of Mohai. Mr Mokoena
submitted that this breaks the chain of evidence. There is merit in
this argument and has
to prevail.
[55]
DNA evidence is technical in nature. More often than not, it is
obtained in instances where there is no
direct evidence. It is not
only important to have results at the tail end of the process that
link the accused, but it is rather
equally important to ensure that
the evidence is properly obtained, safely preserved and properly
traced throughout the relevant
stages until final analysis. It is not
difficult to find wisdom for that reasoning because the credibility
and integrity of the
whole process must be beyond reproach. This is
so by the very nature of the standard of proof that the state must
satisfy in a
criminal case. It would be difficult to find that the
results are reliable especially that we are dealing with
circumstantial evidence
when the state case has some unaccounted gaps
on the DNA chain evidence.
[56]
In respect of count 4, MAT was examined by Sr Mingi on 18 February
2018 who took swabs and sealed them with
serial no.
16D1AD7659
and handed them over to Magadlela. At this stage the following
extract from his cross examination by Mr Mokoena is relevant:
Q “You said you
put the kit into the SAP 13 register?
A
Yes.
Q This evidence, are
you the person who transported it to the lab?
A No.
Q Do you know who
transported it?
A I’ll never
remember who transported it.
Q Exh CC (ie, the
acknowledgement of receipt form the lab) says it was
delivered by Cst Mothebang William?
A I see.
Q Do you know who gave
this to Cst William?
A I don’t
remember but I think it was from cluster office.
Q From what you are
testifying about it was not always under your care and control?
A Correct.
Q Can you still recall
to whom you handed this evidence to?
A What I know is that
this evidence was taken to the cluster and then registered.
Q ...
A…
Q
Can you remember when did you give this evidence to the cluster?
A I
cannot remember.
Q Did you give it to
the cluster the same day you received it or the following day or
following week?
A
Maybe after a week. I’m not certain.
Q …
A…
Q
You are not the person who transported this Exh LL?
A
Yes.
Q So you won’t
know with certainty what this seal number on Exh CC mean?
A I won’t say
that with certainty. I only think that this is the bag that had the
other exhibits in it.”
[57]
The above extract clearly demonstrates the poor handling of such
crucial evidence pertaining to this count
and I need not to belabor
the matter any further. It has been conceded by Ms Ferreira that this
court cannot attach probative value
to the statement of MJK (ie, Exh
DD) who has since passed
away because it
was not commissioned by Magadlela. This particular
investigator who holds the rank of warrant officer boasts a total of
33 years
of service in the SAPS. His handling of this matter leaves
much to be desired. Gender based violent offences particularly
against
women have reached sky rocketing levels in this country and
the public expect that the police as frontline fighters in defence of
victims of such crimes, treat such cases with the
sensitivity and care that they deserve. The conduct of Magadlela
and
Lebone (who did not appreciate the value of immediately filing the
chain of custody statement) shows total lack of appreciation
of what
was expected of a diligent officer especially in a specialized unit
like theirs. Even though the proper commissioning of
the statement of
MJK would not have advanced the state’s case in this count, the
failure to commission it buttresses my concerns
regarding the conduct
of Magadlela.
[58]
Now I turn to count 7. Sr Menqe examined MSS and took 2 swabs. She
sealed these into an exhibit bag with
seal no.
15D1AC7993JJ
.
She gave this to Magadlela who took it to his office and locked it in
his safe until the 23
rd
of October 2019 when he wrote a
covering letter to the FSL (ie, Exh FF) accompanying the exhibits.
The said exhibits were delivered
by Skynet courier service to the
laboratory and the acknowledgement of receipt was
received by Magadlela as per Exh
EE in these proceedings. Mmushi
analyzed the swabs and concluded that the DNA on them matched with
that of the accused as per Exh
H and P. This is objective evidence
before this court that as not refuted. Even though Mr Mokoena did not
say it in so many words,
he was
ad idem
with the state that
the chain of evidence was flawless on this count.
[59]
Even though that was the case, Mr Mokoena had some reservations
regarding the inscription of Sr Menqe on
the J-88 of MSS (ie, Exh Q)
on page 3 paragraph F where it was written that ‘no
evidence given’. This does not
accord with logic and common
sense if regard is had to the following
paragraph where the details of the person to whom the specimens were
given were written. I am satisfied that this was a
bona fide
error on Sr Menqe’s part.
[60]
Mr
Mokoena argued that in the event I find that the accused is linked in
this
count the
matter should resort under
section
51(2) of the Minimum Sentencing Act not
51(1)
[13]
.
In his view, this was a continuous incident of s
exual intercourse as against Ms Ferreira’s
argument that there
was a break in between the second and third sexual encounter. MSS
conceded during cross examination that the
second sexual encounter
was a continuation of the first one since she slipped and lost
balance as she was bending forward and the
accused’s male organ
got ejected and subsequently re-inserted it. However, between the
second and third encounters there
was a break of about 5 minutes.
This gave the accused the opportunity to re-think and review his
stance on what he was doing. In
my view, he formulated a separate
intention to indulge in further sexual intercourse with MSS.
Therefore, the argument by Mr Mokoena
lacks merit in this regard and
stands to be rejected. Consequently, I find that this count falls
under
section
51(1) of the Minimum Sentencing Act
[14]
as alleged by the state.
[61]
Counts 8 and 9 are intertwined because the
complainant was
the same, MEG. Even though
it appears
ex facie
from the J-88 of MEG that some samples bearing seal no.
15D1AC6734
were given to one Magadlela, he could not tell what he eventually did
with the said evidence bag. All he could say was that it
was handed
to the cluster. How the exhibit made its way to the laboratory and
its condition upon its arrival was beyond his knowledge.
To add salt
to the wound, there was a used condom that was found at the scene
which was collected by W/O Makgolotso Selina Moropodi
of Kroonstad
LCRC Unit. See Exh V the photo album. To my utter shock, Magadlela
being the I/O of the case from inception did not
know what happened
to the condom. This is bizarre in the extremes if an I/O could
not know the destination of such a crucial piece
of evidence in a case of this nature. Magadlela ought to be grateful
to Olifant
who testified that he transported exhibit bag no.
PAD001790288 in which the sealed specimens that were taken by Sr Ceba
from MEG
were contained under seal no.
19D1AC2528
.
Upon analysis by Mmushi the accused’s DNA matched the one which
was found on MEG that was donated by the rapist. According
to him the
conservative occurrence for this DNA is 1 in 2.1 million trillion
people. Mr Mokoena conceded that the DNA
chain cannot be faulted in respect of count 8 and I concur with his
submissions in that
regard and I so find.
[62]
There was a debate between the parties whether in
respect of count 9 the state proved its case or not and
if so, what
charge. The state alleged that the accused robbed a handbag and its
contents. MEG testified categorically that the
accused did not use a
weapon. However, she testified that when he demanded money he denied
having any and gave him some lose coins
which she did not quantify.
Clearly, from her evidence the accused did not rob a handbag and its
contents. Even if I were to consider
the competent verdict of
‘common’ robbery the difficulty I have is that the said
coins were not quantified. Ms Ferrreira
invited me to invoke
section
88 of the CPA
[15]
that
the charge be cured by evidence. This argument cannot pass
constitutional muster because the accused did not have the
opportunity
to answer for himself in the event of that eventuality.
Therefore, the argument by the state cannot be sustained and the
accused
has to be acquitted on this count.
[63]
Now I turn to counts 10 and 11. They were
inter-twined as well. MJM was examined by Sr Ceba on 8 July 2020
who
took some specimens and sealed them into an evidence kit bag with
seal no.
19D1AC2528JJ
.
These were received by Lebone who signed for them on Exh W (ie, the
J-88 of MJM). During his evidence in chief he gave the impression
that he kept the evidence bag under his lock and key at all material
times until he personally transported it to the FSL. However,
during
cross examination it turned out that he did not know whether he
personally delivered it or he dropped it at the cluster
office for
someone to deliver it to the laboratory. Mr Mokoena drew his
attention to his statement (ie, Exh GG) regarding the chain
of
custody that was belatedly made on 15 March 2023 almost 3 years after
the event. That was when it turned out that there are
gaps in his
statement regarding when he parted with the evidence bag and to whom
he handed it and for how long he kept it with
him. This lacking
information broke
the chain of custody of
the DNA evidence. It follows automatically that count 11 collapses as
it relied on the linkage of the accused
in count 10.
[64]
Lastly, I now deal with counts 12 and 13 as they
were inter-twined as well. Ms Ferreira argued that the
state proved
the chain of evidence on these charges whereas Mr Mokoena argued to
the contrary. It appears
ex facie
from the J-88 of SBM that one Mtengwane signed for the exhibit bag on
4 April 2021 that contained specimens that were taken by
Sr
Qhathatsi. From there Ms Ferreira did not lead further evidence
regarding the safe keeping and possible transportation of the
exhibits to the laboratory. What makes matters worse is that
Mtengwane was called by the prosecutor and testified about other
peripheral issues but was never asked pertinent questions about her
role in the investigation of these 2 counts. This is regrettable.
The
broken chain of custody of the specimens collapses counts 12 and 13
and the accused is entitled to an acquittal.
[65]
Skolas and Mmushi testified as experts in this case. Their
credentials are beyond reproach. They substantiated
their reasoning
and findings. Of much importance is that when they conduct their
analysis the samples do not have the donor’s
names and
therefore chances of fabricating anyone are nil. I find that they
were credible witnesses and their evidence was reliable
and
trustworthy.
THE VERSION OF THE
ACCUSED
[66]
Now I turn to consider the version of the accused
if it is reasonably possibly true. In
Shackell
[16]
the court stated that:
“…
a
court does not have to be convinced that every detail of an accused's
version is true. If the accused's version is reasonably
possibly true
in substance, the court must decide the matter on the acceptance of
that version. Of course it is permissible to
test the accused's
version against the inherent probabilities. But it cannot be rejected
merely because it is improbable; it can
only be rejected on the basis
of inherent probabilities if it can be said to be so improbable that
it cannot reasonably possibly
be true.”
[67]
His defence is a bare denial. Mmushi testified
that the only conservative occurrence for the same DNA is
1 in 2.1
million trillion people or unless they are identical twins. The
accused does not fall in this extreme rare category. In
view of the
expert testimony I find that the accused’s defence is not
reasonably possibly true on counts 1, 7 and 8 and consequently,
is
hereby rejected. In respect of the other counts he must be given the
benefit of doubt.
CONCLUSION
[68]
In respect of counts 1, 7 and 8 I am satisfied
that the accused is positively linked through DNA evidence.
I am
satisfied that the state has proved its case beyond reasonable doubt
in those counts. Counts 1 and 7 fall under the ambit
of section
51(1)
of the Minimum Sentencing Act
[17]
because they involve the infliction of grievous bodily harm and the
complainant was raped more than once respectively, and in respect
of
count 8
section
51(2)
is applicable.
[69]
In view of the broken chain of evidence in respect of counts 2, 3, 4,
10, 11, 12 and 13, I find that the
state has failed to prove its case
beyond reasonable doubt. Therefore, the accused must be given the
benefit of doubt and be acquitted.
Further, the state has failed
altogether to prove its case in respect of count 5, 6 and 9 and the
accused should be acquitted.
VERDICT
[70]
COUNT 1:
Guilty of Rape read with section 51(1) Act 105 of
1997
.
COUNTS
2- 6
Acquitted
.
COUNT
7:
Guilty of Rape read with section 51(1)
Act 105 of
1997.
COUNT
8:
Guilty of Rape read with section 51(2)
of Act 105 of
1997.
COUNTS
9-13:
Acquitted
.
M.M. MATSAHAYA, AJ
Appearances:
For the State: Adv.
Ferreira
Instructed by
Director of Public
Prosecutions
Bloemfontein
For the Respondents: Adv.
P. Mokoena
Instructed by
Legal Aid South Africa
Bloemfontein
[1]
Act
32 of 2007.
[2]
Act
105 of 1997.
[3]
Supra.
[4]
Act
45 of 1988.
[5]
S v Van Der Meyden
1999 (1) SACR 447
(W) at 448. See also S v T
2005
(2) SACR 318
(E) at para 37.
[6]
S v Chabalala
2003
(1) SACR 134
(SCA) at 140 (a)-(b).
[7]
Act
51 of 1977.
[8]
S
v Stevens
2005 (1) All SA 1
(SCA) at para 15. See also R v Mokoena
1932 OPD 79
at 80.
[9]
Bokolo v S (483/12)
[2013] ZASCA 115
(18 September 2013).
[10]
1939
AD 188.
[11]
1950 (1) SA 670
(A) at 679.
[12]
Supra.
[13]
Supra.
[14]
Supra.
[15]
Supra.
[16]
Shackell
v S
2001 (4) All SA 279
(SCA) at 288 (e)-(f).
[17]
Supra.