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[2022] ZAMPMBHC 21
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S v Van Rensburg (CC 70/2020) [2022] ZAMPMBHC 21 (1 April 2022)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
CASE NO: CC 70/2020
DPP
REF:10/2/11/1-M23/2020
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
In the matter between:
THE STATE
v
NICHOLAS HENDRIK JANSE
VAN RENSBURG
ACCUSED
JUDGMENT
ON MERITS
MOOSA
J
:
[1]
MR NICHOLAS HENDRIK JANSE VAN RENSBURG
(‘accused’)
is arraigned on the following charges:
[1.1]
COUNT
1
:
MURDER READ WITH THE
PROVISIONS OF SECTION 51(1)(a) AND PART 1 OF SCHEDULE 2 OF THE
CRIMINAL LAW AMENDMENT ACT 105 OF 1997
IN
THAT
on or about 13 October 2019 and at
or near Mjejane RDP next to Walala Wasala Tuck-shop in the district
of Komatipoort the accused
did unlawfully and intentionally assault
Z[....] A[....] N[....],
an
adult female by beating her causing serious injuries as a result
whereof the said
Z[....] A[....] N[....]
died on 15 October 2019 in the Tonga
Hospital.
[1.2]
COUNT
2
:
RAPE IN CONTRAVENTION
OF THE PROVISIONS OF SECTION 3, READ WITH SECTIONS 1, 55, 56(1), 57,
58, 59, 60 AND 61 OF THE CRIMINAL LAW
AMENDEMENT ACT (SEXUAL OFFENCES
AND RELATED MATTERS) 32 OF 2007 READ WITH THE PROVISIONS OF SECTION
51(1) OF ACT 105 OF 1997
IN
THAT
on or about the date and at or
near the place mentioned in count 1, the accused did unlawfully
commit an act of sexual penetration
with
Z[....]
A[....] N[....]
, a female person, by
inserting a wooden spoon into her vagina, more than once, without her
consent.
[2]
The accused pleaded not guilty to the charges, which he faced in the
indictment. Mr
Manzini, (‘Mr Manzini’) on behalf of the
accused confirmed that the plea of the accused was in accordance with
his
instructions, and that the accused’s defence was that of an
alibi; in that he was in Malelane at the time of the commission
of
the offence, and further that he did not know the deceased.
The accused accordingly
confirmed the plea explanation made on his behalf.
[3]
The accused was duly explained the provisions, application and
implications of the
Criminal Law Amendment Act No. 105 of 1997
(‘Minimum Sentences Act’), as well as the seriousness
thereof. The accused
confirmed that he accordingly understood the
provisions of the aforementioned Act.
ADMISSIONS
[4]
The accused made the following admissions on 15 November 2021, in
terms of section
220 of the CPA and which was handed in as Exhibit
“A”, briefly:
[a]
Admitting that he made the admissions freely, voluntarily and without
any undue influence, and
that the admissions sought were duly
explained to him.
[b]
Admitting that the deceased is the person mentioned in the
indictment, and that she died on 15
October 2019 at Tonga Hospital,
in the district of Nkomazi, as a result of injuries sustained
consequent to the assault on her
that took place between the night of
12
th
including the early hours of 13 October 2019.
[b]
Admitting that on 17 October 2019 Dr Jan G Maree (‘Maree’)
performed a medico-legal
post-mortem examination on the body of the
deceased person, and recorded his findings on the form GW7/15, with
Death Register Number
DR 219/2019, herewith handed in by consent as
Exhibit “B”.
[c]
Admitting that the cause of death of the deceased as being correctly
recorded in Exhibit “B”
to wit: “
STOMP TRAUMA”
.
[d]
Admitting that the facts and findings of the medico-legal post-mortem
examination recorded by
Dr Maree in the post-mortem report, Exhibit
“B”, are true and correct.
[e]
Admitting that the body of the deceased did not sustain any further
injuries from the time that
she was transported from Mjejane RDP, to
Tonga Hospital for treatment until her death on 15 October 2019.
[f]
Admitting that in furtherance of the assault upon the deceased, a
wooden spoon was inserted
into her vagina, which resulted in severe
bleeding from her private parts.
[g]
Admitting that the deceased was still alive but severely injured when
she was discovered in the
house of Bheki Vuma, and that a few days
later she succumbed to her injuries.
[5]
To discharge the onus upon it to prove that the accused committed the
crimes charged,
the prosecution called the following five viva voce
witnesses:
[5.1]
Nelisiwe
Happy Maboso
(‘Maboso’), the deceased’s
neighbour testified, inter alia, as follows:
[a]
She knows the deceased as one ‘Skoni’ for a period of
approximately 2 (two) years
prior to her death.
[b]
During the early hours of 13 October 2019, she was requested by Bheki
Vuma (‘Vuma”)
to attend at his residence in order to
render assistance to him. Upon her arrival at Vuma’s residence,
she observed the deceased
lying on the sofa in Vuma’s bedroom.
She observed the deceased’s eyes were swollen and she was
bleeding from her eyes.
She further observed a bloodied wooden spoon
lying on the floor, and noted that there was blood on the deceased’s
legs. In
addition thereto, she observed that the deceased was
bleeding from an injury on her neck.
[c]
She then enquired from the deceased as to what had transpired and
what had caused her injuries.
The deceased informed her that she was
beaten by Vuma’s friend, who is a White man (‘Mlungu’).
The deceased said
that ‘Mlungu’ had assaulted her and
penetrated her with the wooden spoon. One Thuli Khoza was
subsequently summoned,
and she communicated further with the
deceased.
That in essence concluded
the evidence of the 1
st
witness, Maboso.
[5.2]
Bheki Vuma
(‘Vuma’), the deceased’s friend testified,
inter alia, as follows:
[a]
He knew the deceased as one ‘Skoni’ for a period of
approximately 2 (two) years, as
she used to visit him at his place of
employment.
[b]
He does not know where the accused resided at the time of the
commission of the offence, but got
to know the accused over a period
of time as he used to frequent the tavern where Vuma worked.
[c]
On 13 October 2019 at approximately 16h00, the accused attended at
the tavern. He informed Vuma
that he wanted to bath, and requested
this witness to assist him in this regard. Vuma duly took him to his
residence for this purpose,
however, the accused did not take a bath.
Instead Vuma ended up having a bath.
[d]
They then returned to the tavern. The accused then suggested that he
will sleep the night at Vuma’s
residence. Vuma then informed
him that he will be working that evening and handed his house keys to
the accused, and further advising
him that he could go and sleep
whenever he felt tired. Vuma gave the accused the only set of keys
that he had for his house.
[e]
The accused subsequently left the tavern, and Vuma was under the
impression that the accused had
proceeded to his residence in order
to sleep, as he was in possession of the keys.
[f]
During the early hours of the morning, Vuma returned to his
residence. Upon entering therein,
he observed that the bedroom door
was open and that his keys were hanging on the door. He assumed that
the accused was in the bedroom,
and expected to see him therein.
[g]
Due to the fact that it was dark, Vuma used matches for purposes of
illumination. He thereafter
observed blood on the floor, as well as a
bloodied wooden spoon. After striking the second match, he saw a
naked person on the
sofa in his bedroom, and identified this person
as ‘Skoni’. He expected to see the accused in his
bedroom. He became
scared as a result of what he observed and ran out
of his house, in order to seek assistance.
[h]
He proceeded to Maboso, and requested her to accompany him to his
residence in order to render assistance.
Upon their return, he
further observed that the deceased was bleeding from her private
parts, and that she had a stab wound on
her neck and which was
bleeding. He was afraid to approach the deceased as she was naked.
[i]
They were also joined by one Thuli Khoza, who also conversed with the
deceased. He learnt
from Maboso that the deceased had implicated the
accused as the person who was responsible for her injuries.
[j]
He positively identified the accused as the person who was with him
on the day in question,
and further confirmed that at all material
times he referred to the accused as ‘Mlungu’. Vuma
further attended an identification
parade, whereat he positively
identified the accused.
[k]
During cross-examination, he was adamant that it was the accused who
was the one who accompanied
him to his house that day. Further,
stating that even the neighbours had seen the accused in his company,
when they went to his
house.
[l]
He was further adamant that he had given his keys to no one else but
the accused on 13 October
2019. He denied the alibi of the accused,
when it was put to him that the accused was working with one Oom Piet
on the Saturday,
12 October 2019 in Malelane, and that he was in
Malelane until 21h30. He was adamant that the accused was with him at
the tavern,
and at the time when it is alleged that he was at
Malelane.
That in essence concluded
the evidence of the 2
nd
witness, Vuma.
[5.3]
Thuli
Precious Khoza
(‘Khoza’), testified, inter alia, as
follows:
[a]
The deceased is known to her as ‘Skoni’. During the early
hours of 13 October 2019,
at approximately 03h00 – 04h00, she
was called by Maboso to render assistance.
[b]
She proceeded to Vuma’s residence and upon entering his bedroom
observed the deceased to
be lying on the floor. She removed the
blanket from the deceased’s body and observed that the floor
was full of blood, and
that the deceased was also covered in blood.
She further observed a bloodied wooden spoon. In addition thereto,
she noted that
the deceased’s face was swollen and that she had
a wound on her neck, which was bleeding.
[e]
The deceased then informed her that it was ‘Mlungu’,
Vuma’s friend who did this
to her, in that he assaulted her,
penetrated her with a wooden spoon and then stabbed her with a knife,
and left her for dead.
The deceased was later taken to hospital by
ambulance for treatment.
[f]
She was clear that she saw the accused in Vuma’s company, at
the time when they were
at Vuma’s house, during the afternoon
of 12 October 2019. At the time when she had observed the accused in
Vuma’s company,
her children were asking the accused for money.
[g]
She stated that after this incident she was involved with others in
searching for the accused,
but they could not locate him.
[h]
During cross-examination, she confirmed that the deceased had
informed her that it was ‘Mlungu’,
Vuma’s friend
who raped her and penetrated her with a wooden spoon.
[i]
During a clarifying question from the court, Khoza clarified that the
deceased had informed
her that ‘Mlungu’, Vuma’s
friend had raped her, penetrated her with a wooden spoon and
assaulted her. She further
clarified that the spoon was approximately
30 (thirty) centimetres long, and a spoon that is used to make “pap”.
That in essence concluded
the evidence of the 3rd witness, Khoza.
[5.4]
Linah
Promise Khoza
(‘Linah’), testified, inter alia, as
follows:
[a]
She had been residing at Mjejane until April 2020, and had previously
worked with Vuma.
[b]
On 22 October 2019, she attended an identification parade. She duly
pointed out the accused at
the parade, and subsequently pointed him
out once again in court, as the person who used to frequent the
tavern. She was clear
that at no stage, did she ever see Vuma prior
to, or at the police station, at the time of her attendance at the
identification
parade.
[c]
She stated that on 12 October 2019, the accused attended at the
tavern, they hugged each other
and chatted for a while. She continued
with her work and subsequently observed Vuma and the accused walking
out of the tavern together.
She did not know as to where they were
headed to. Vuma later returned to the tavern.
[d]
At approximately, 02h00, the deceased came to the counter and
purchased an energy drink. She thereafter
left and a short while
later and returned with the accused. They were chatting at the
counter and the accused purchased a beer.
Whilst at the counter an
unknown male attempted to make conversation with the deceased. The
accused moved closer and reprimanded
this person. The accused and
deceased then left the tavern in each other’s company.
[e]
During cross examination, she was adamant that she had initially seen
the accused in the company
of Vuma, earlier that afternoon. She later
saw the accused again, in the company of the deceased at the counter
at 02h00, just
before the tavern closed at approximately 02h30.
That in essence concluded
the evidence of the 4th witness, Linah.
[5.5]
Pieter
Johannes Jacobs
(‘Jacobs’), testified, inter alia, as
follows:
[a]
He stated that the accused assisted him occasionally as a mechanic,
and commenced assisting him
on 08 October 2019. He was clear that he
finishes work at 16h00, and does not work at night.
[b]
On 12 October 2019, the accused arrived at his residence at 07h00,
and left at 10h30, stating
that his new employer wanted to see him.
He never saw the accused again that day. He denied the version that
the accused was repairing
a motor vehicle on the evening of 12
October 2019.
[c]
On 13 October 2019 at approximately 06h00, he was informed by his
wife that the accused was at
the gate. However, he did not find the
accused at the gate, when he went outside.
[d]
During cross examination, he denied the proposition that the accused
had worked late on 12 October
2019, and that he had dropped off the
accused at his place of residence between 20h30 – 21h30.
[e]
He further denied the proposition that the accused was repairing a
vehicle on 13 October 2019,
whilst he was asleep.
That in essence concluded
the evidence of the 5th witness, Jacobs.
[6]
The State at this stage of the proceedings informed the Court that it
intended handing in
the Identification Parade form, which contained
the proceedings of the parade, and the outcome thereof. Mr Manzini,
objected to
the handing in thereof, submitting that the accused
alleged that he was not informed of his right to legal
representation, at the
time when the identification parade was held.
Having carefully considered the arguments raised in this regard, I
accordingly ruled
that a trial within a trial be held, so as to
determine the admissibility of the identification parade.
[7]
I do not intend to deal in detail with the evidence that was led
during the trial
within a trial, for the sake of brevity and to avoid
unnecessary prolix. Save to note that the State called the evidence
of two
witnesses and the accused was the only witness who testified
in these interlocutory proceedings.
[a]
Briefly, D/Captain Mkwatshwa (‘Mkwatsha’) testified that
he is a Captain in the South
African Police Services (‘SAPS’)
with 26 (twenty six) years of service. He was tasked with the holding
of an identification
parade on 22 October 2019, with the witness
Linah. He duly explained the procedure to the accused and all the
other participants.
He thereafter, approached the accused and engaged
with him directly, whereby he explained his rights to him. The
accused indicated
that he understood his rights and that he chose to
proceed with the identification parade, without the assistance of a
legal representative.
His response was noted on the form, and the
parade duly proceeded. He was clear that had the accused informed him
that he required
the services of a legal representative, he would
have suspended the proceedings, and would have provided the accused
the opportunity
to exercise his right to legal representation.
[b]
Sgt Oral Ngobeni (‘Ngobeni’) testified that he is a
Sergeant in the SAPS and that
he was responsible for the holding of
the identification parade on 28 October 2019, with the witness Vuma.
His evidence mirrored
that of Mkwatshwa, and I do not deem it
necessary to repeat his evidence during this judgment. Of importance
is the fact that he,
inter alia
, explained the right to legal
representation to the accused. The accused informed him that he
understood his rights in this regard
and chose to proceed on his own,
without legal representation. Ngobeni duly noted the accused’s
response and preference on
the form, and the identification parade
duly proceeded.
That in essence concluded
the evidence and the State closed its case.
[c]
The accused testified that during the identification parade held on
22 October 2019, he was not
informed of any of his rights. Further
alleging that at no stage were his rights to legal representation
explained to him by Mkwatshwa.
Further alleging that he was informed
that it was not necessary for him to have legal representation at the
identification parade.
He testified that the similar
modus
operandi
was followed at the subsequent identification parade,
held on 28 October 2019. He further alleged that had he been duly
informed
of his right to legal representation, he would have surely
asked for same. That in essence concluded the evidence of the
accused,
and his case was closed in the trial within a trial.
[8]
Having carefully considered the viva voce and documentary evidence
before me, I was
satisfied that the evidence presented by the State
was satisfactory in all material respects, and that the accused’s
evidence
was false beyond reasonable doubt. I accordingly accepted
the evidence of the State and rejected that of the accused. It is for
this reason that I ruled that the State had laid a proper basis and
complied with the provisions of
section 37(1)(b)
and (d) of the
Criminal Procedure Act 51 of 1977
.
Consequently, the
proceedings of the identification parade were duly accepted onto the
record as evidence, and the State closed
it’s case.
[9]
The
Accused
testified in his defence,
inter alia
, as
follows:
[a]
On 11 October 2019, he was at the tavern in order to buy food and at
this stage saw
Vuma thereat.
[b]
On 12 October 2019, he went to Jacobs, after this witness had
telephoned him, and assisted him
with repairing a motor vehicle that
day. He commenced at 07h30 and worked until late that evening. Jacobs
and his wife dropped
him off that evening at his residence. He
remained at home that evening with his wife and child, and did not go
out anywhere.
[b]
On 13 October 2019, Jacob’s son telephoned him and he proceeded
to Jacobs place, in order
to repair a vehicle. He worked on the
vehicle and upon completing the task, proceeded home.
[c]
He denied the evidence of the State witnesses and stated that his
wife would confirm that he was
at home on the evening of 12 October
2019 from 20h15 until 06h00, the next morning. He further informed
the court that he would
make the necessary arrangements for her
attendance at court, in order for her to testify on his behalf.
[d]
He denied any knowledge regarding the assault and rape of the
deceased, and stated that he was at home
at the time of the
commission of the crime.
That in essence concluded
the evidence of the accused.
[10]
At this stage, Mr Manzini informed the court that he required a
postponement of the matter, in
order to secure the attendance of two
defence witnesses, who would be called on behalf of the accused. He
advised that he intended
to call Mr Jaco Jacobs, the son of Jacobs,
as well as the accused’s wife who was in Phalaborwa. The matter
was accordingly
postponed from 17 November 2021 to 25 November 2021,
in order to give the defence a fair opportunity to secure the
attendance of
their witnesses.
[11]
Upon resumption on 25 November 2021 at Graskop, Mr Manzini duly
consulted with the witness Jaco
Jacobs, and pursuant thereto informed
the Court that he did not intend calling this witness any longer.
Further advising that further
attempts would be made in order to
secure the attendance of the accused’s wife’s.
[12]
The defence then called
Sgt Sifiso Donald Zwane
(‘Zwane’)
the investigating officer, stationed at Komatipoort SAPS who
testified,
inter alia
, as follows:
[a]
During his investigations, he duly took a buccal sample from the
accused, as well as submitted
his clothes for forensic analysis. He
did so, in the event that he did not have any eye witnesses in this
case.
[b]
Despite numerous enquiries, he was informed that the results were
unavailable due to the backlog
at the Forensic Sciences Laboratory in
Pretoria.
That in essence concluded
the evidence of this witness.
[13]
The matter was once again postponed to 02 December 2021, at the
request of the defence, in order
to secure the attendance of the
accused’s wife. On 02 December 2021, the matter was once again
postponed to 03 December 2021
for this purpose. The State duly gave
notice to the accused in terms of
section 342A
of the CPA. After
hearing argument and having considered it important to the fair trial
rights of the accused, I deemed it appropriate
in the circumstances
to grant the accused a further opportunity to secure the attendance
of his alibi witness. The matter was postponed
to 10 January 2022,
for this purpose.
[14]
It is noteworthy to mention that the State duly handed in the Biology
report on 02 December 2021,
and which contained the DNA Analysis
system, as Exhibit “N”. Briefly indicating that the
accused was excluded as the
donor of the DNA, which was obtained from
the floor swabs, bra and bed cover. Not enough male DNA was obtained
from the vaginal
swabs; and that no DNA was obtained from the
sanitary pad and blanket, as well as the T-shirts. Further, that a
female DNA was
obtained from the swabs of the wooden spoon.
[15]
On 10 January 2022, the accused requested that he be allowed to
consult with his son. I allowed
this opportunity despite the fact
that Mr Manzini had informed the court that the defence intended
closing its case. Upon consultation
with his son, the accused
informed the Court that his wife would definitely be attending Court
and he pleaded for a further opportunity
to secure the attendance of
his alibi witness. I accordingly acceded to this request, in the
interests of justice, despite protestations
from counsel for the
State. The matter was postponed to 28 March 2022, for this purpose.
[16]
Upon resumption of the proceedings on 28 March 2022, Mr Manzini
informed the Court that the defence
would not be calling any further
witnesses, including the alibi witness, and the case for the defence
was accordingly closed.
EVALUATION OF
EVIDENCE
[17]
It is trite that in order to succeed with the prosecution, the State
has to discharge the onus
to establish the guilt of the accused
beyond reasonable doubt, and on the other hand the accused bears no
onus but will be entitled
to a discharge if he presents an
explanation of innocence which is reasonably possibly true. This
trite legal test is more succinctly
and elegantly stated by Nugent JA
in
S
v Mbuli
[1]
as follows:
‘
It
is trite that the State bears the onus of establishing the guilt of
the appellant beyond reasonable doubt, and the converse is
that he is
entitled to be acquitted if there is a reasonable possibility that he
might be innocent. In whichever form the test
is applied it must be
satisfied upon a consideration of all the evidence’.
‘
An
accused version can only be rejected if the court is satisfied that
it is false beyond reasonable doubt. An accused is entitled
to an
acquittal if there is a reasonable possibility that his or her
version may be true. A court is entitled to test an accused’s
version against the improbabilities. However, an accused’s
version cannot be rejected merely because it is improbable’.
[2]
[18]
In
S v Shackell 2001(2) SACR 185 SCA
it was held that “
it is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable
doubt and that a mere
preponderance of probabilities is not enough. Equally enough is the
observance that, in view of this standard
of proof in a criminal
case, a court does not have to be convinced that every detail of the
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. It is indeed permissible to
test the accused’s version against the inherent probabilities.
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.”
[19]
In assessing the evidence, a court must in the ultimate analysis look
at the evidence holistically
in order to determine whether the guilt
of the accused is proved beyond reasonable doubt. This does not mean
that the breaking
down of the evidence in its component parts is not
a useful aid to a proper evaluation and understanding thereof. In
S
v Shilakwe
[3]
at
page 20, para [11], the Supreme Court of Appeal approved of the
following
dictum
:
“
But
in doing so, (breaking down the evidence in its component parts) one
must guard against a tendency to focus too intently upon
the separate
and individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in the trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood from the trees.”
See
S v
Hadebe and others
[4]
and
S v
Mbuli
[5]
.
[20]
The same principles apply when an alibi defence is relied upon by an
accused. The acceptance
of the evidence on behalf of the State cannot
by itself be a sufficient basis for rejecting the alibi evidence.
Something more
is required. The evidence must be considered in its
totality. In order to convict there must be no reasonable doubt that
the evidence
implicating the accused is true which can only be done
if there is at the same time no reasonable possibility that the
evidence
exculpating him is not true. See
S
v Van Aswegen
[6]
and
S v
Liebenberg
[7]
.
The
effect hereof is that once the trial court accepts the evidence in
support of an accused’s alibi as reasonably possibly
true, it
follows that the court should find that there is a reasonable
possibility that the evidence led on behalf of the State
is mistaken
or false.
[21]
Bearing in mind the above, the correct approach is to consider the
alibi in the light of the
totality of the evidence in the case and
the court’s impression of the witnesses. See
R
v Hlongwane
[8]
.
In doing so, the trial court should remind itself that no onus rests
on an accused and that the State must prove that the accused
committed the crime and it must therefore disprove the alibi.
[22]
It is acceptable in evaluating the evidence in its totality to
consider the inherent probabilities.
Heher AJA (as he then was) dealt
with this aspect as follows:
“
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.”
See
S v
Chabalala
[9]
.
[23]
I am mindful of the basic principles to be applied when evaluating
evidence. In this regard,
it is trite that evidence must be weighed
in it’s totality and that probabilities and inferences must be
distinguished from
speculation and conjecture.
Navsa
JA in
S
v Trainor
[10]
stated
as follows: “A conspectus of all the evidence is required.
Evidence that is reliable should be weighed alongside such
evidence
as may be found to be false. Independently verifiable evidence, if
any, should be weighed to see if it supports any of
the evidence
tendered. In considering whether evidence is reliable, the quality of
that evidence must of necessity be evaluated,
as must corroborative
evidence, if any. Evidence, of course, must be evaluated against the
onus on any particular issue or in respect
of the case in it’s
entirety”
[24]
The quote from the judgment of Malan JA in R v Mlambo
[11]
at 738 A and B is apposite:
‘
In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has committed
the crime
charged. He must, in other words, be morally certain of the guilt of
the accused. An accused’s claim to the benefit
of doubt when it
may be said to exist must not be derived from speculation but must
rest upon a reasonable inference which are
not in conflict with, or
outweighed by, the proved facts of the case. Moreover, if an accused
deliberately takes the risk of giving
false evidence in the hope of
being convicted of a less crime or even, perchance, escaping
conviction altogether and his evidence
is declared to be false and
irreconcilable with the proved facts; a court will, in suitable
cases, be fully justified in rejecting
an argument that,
notwithstanding that the accused did not avail himself of the
opportunity to mitigate the gravity of the offence,
he should
nevertheless receive the same benefits as if he had done so’.
[25
]
I
pause to mention that there are no eye-witnesses who actually saw the
assault of the deceased by the accused. Hence, the State
has relied
to a certain extent on circumstantial evidence, the testimony and
version of the accused, as well as the objective medico
legal
evidence; in order to prove the allegations against the accused, and
in an attempt to prove it’s case against the accused.
I am
therefore required to objectively and in an impartial and balanced
manner, consider all the evidential material in coming
to a
decision.
[12]
[26]
It is trite that once a court is faced with circumstantial evidence
it naturally flows that it
is duly called upon to draw inferences
from the evidence thus presented.
“
In
reasoning by inference there are two cardinal rules 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 doubt whether
the inference sought to be drawn is correct.”
[13]
[27]
The value of circumstantial evidence is often found in a whole range
of independent circumstances,
all giving rise to the same conclusion.
It is imperative for the court to consider all these circumstances as
a whole and not to
assess each in isolation.
“
The
court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one so taken. It must carefully weigh the cumulative effect
of all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be drawn. To put the matter in another way, the
Crown must satisfy the court,
not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond reasonable
doubt inconsistent with such
innocence.”
[14]
[28]
In De Villiers supra at 508 it is said: “…even two
particles of circumstantial evidence-though
taken by itself weigh but
as a feather – join them together, you will find them pressing
on the delinquent with the weight
of a millstone….”
[29]
Circumstantial evidence is indirect proof from which a court is
required to draw inferences which,
when weighed with all other
evidence, may contribute towards proving a fact in issue. The
inference must comply with certain rules
of logic.
[15]
The reasonable inference has to be drawn only from proved facts and
not from facts based on suspicion.
[16]
Circumstantial evidence
has on occasion been described as a chain, the links of which consist
of pieces of evidence. This is not
correct as it implies that the
chain will be broken once one piece of evidence is rejected. It is
better to compare it with a braided
rope: as the strands break, the
rope weakens and conversely, as strands are added, the stronger it
gets. The gist of the matter
is that one piece of circumstantial
evidence may be inconclusive, but once other evidence is added, it
gains probative force.
[30]
The principles that are to be applied in assessing circumstantial
evidence were re-stated as
follows in
S
v Reddy & others
1996 (2) SACR 1
(A)
8 at c-h
:
“
In assessing circumstantial
evidence, one needs to be careful not to approach such evidence upon
a piece-meal basis and to subject
each individual piece of evidence
to a consideration of whether it excludes the reasonable possibility
that the explanation given
by an accused is true. The evidence needs
to be considered in its totality. It is only then that one can apply
the oft-quoted dictum
in R v Blom
1939 AD 188
at 202-3, where
reference is made to two cardinal rules of logic which cannot be
ignored. These are, firstly, that the inference
sought to be drawn
must be consistent with all the proved facts and, secondly, the
proved facts should be such 'that they exclude
every reasonable
inference from them save the one sought to be drawn’.”
[31]
The
ratio
of Hendricks J in
S v Nkuna
2012 (1) SACR 167
(B)
sets out the approach to circumstantial evidence, at paragraph 121 as
follows:
“
The
evaluation of circumstantial evidence must be guided by a test of
reasonableness. The onus on the State is not that it must
prove its
case with absolute certainty or beyond a shadow of a doubt. All that
is required is such evidence as to satisfy the court
and prove its
case beyond a reasonable doubt. It is trite law that the accused is
under no legal obligation to prove his innocence.
The State must
prove the guilt of the accused beyond a reasonable doubt”.
[32]
Having carefully considered the totality of the evidence and the
mosaic of proof before me, as
well as the admissions that have been
made by the accused in terms of
section 220
of the CPA, I do not deem
it necessary to individually traverse the evidence of all the
witnesses that testified during the trial,
for the sake of brevity
and to avoid unnecessary prolix.
[33]
I pause to mention that upon a conspectus of all the evidence before
me, the following can be
regarded,
inter alia
, as common cause
between the parties, as there is no evidence to the contrary:
[a]
That the deceased died on 15 October 2019 at Tonga Hospital, as a
result of injuries she sustained
during the early hours of 13 October
2019.
[b]
That the deceased was assaulted and in furtherance of such assault
upon the deceased, a wooden
spoon was inserted into her vagina, which
resulted in severe bleeding from her private parts.
[c]
That the deceased was still alive, but severely injured, when she was
discovered in Vuma’s
house; and that a few days later she
succumbed to her injuries.
[34]
The following facts are in dispute
:
[a]
Whether the accused committed the offences as alleged in the
indictment?
[b]
Whether the accused was at the scene of the crime?
[35]
Essentially, having distilled all the common cause facts between the
parties, the only dispute
to be adjudicated upon is the determination
of whether the accused was involved in the commission of the crimes
as charged.
[36]
I have carefully listened to the evidence of the State witnesses, and
taken cognisance of their
conduct and behaviour when they testified,
and it is clear in my mind that their evidence clearly has a ring of
truth. I did not
gain the impression at any stage that the witnesses
had come to falsely implicate the accused in the commission of the
crimes.
All the State witnesses gave their evidence in a clear,
concise and uncontradicted manner, and in my view were impressive
witnesses.
The accused on the other
hand did not convince this Court regarding the veracity of his denial
in respect of the allegations against
him. In addition, he was unable
to produce his wife as an alibi witness. I have further noted that
the other State witness, Jacobs,
who could be construed as an alibi
witness, simply did not support the accused’s version at all.
It was clear to this Court
that the accused tried his level best to
continually spin a yarn, by changing his version, so as to facilitate
the means to extricate
himself.
[37]
It is clear from the viva voce testimony of the State witnesses that
they had positively identified
the accused as the one who was at the
tavern during the afternoon of 12 October 2019, as well as being in
the company of the deceased
in the tavern during the early hours of
13 October 2019. Having carefully analysed their evidence, I am
satisfied that their identification
is both credible and reliable,
having due regard to the fact that they were able to provide
sufficient detail regarding their individual
observations of the
accused, time and the situation at hand. Their individual
observations are further strengthened by their subsequent
identification of the accused, at the respective identification
parades.
[38]
I now turn to the circumstantial evidence of Vuma, when he testified
that he had given his house
keys to only the accused and no one else,
and who was going to later sleep in his house. Further, I have noted
Vuma’s evidence
that he had observed the keys hanging on the
open bedroom door, at the time when he entered the house and
discovered the deceased.
He was clear that it was only the accused
who had the keys to his bedroom, and who could have opened that door.
In addition, I have taken
cognisance of the declaration by the deceased who stated that it was
‘Mlungu’, Vuma’s
friend who was responsible for the
vicious assault upon herself. It is clear in my mind that there was
no other White person who
was Vuma’s friend, and who was
present at the tavern that day, and in the deceased’s company,
except for the accused.
I have absolutely no reason to doubt the
veracity of the information provided by the deceased, to the State
witnesses, regarding
the identity of her assailant.
[39]
I have carefully analysed the evidence before me and applied the
necessary caution where required,
and accordingly am unable to find
any reason to doubt the
ipsissima verba
of the State
witnesses. They gave their evidence in a clear and concise manner
without any material contradictions. On the other
hand the accused
made a very poor impression on this Court during his testimony. His
version/s seemed to be very far fetched on
the available evidence,
and on any analysis of his evidence it simply cannot be believed.
[40]
After careful consideration of the evidence of all the State
witnesses, and the totality of the
circumstantial evidence in support
of the charges, I am satisfied that the evidence of the State is
satisfactory in all material
respects to sustain a conviction on the
charges. The State witnesses made a good impression on this court,
whilst the accused was
unimpressive and an unsatisfactory witness.
[41]
I have weighed all the elements that points towards the guilt of the
accused against those which
are indicative of his innocence, taking
proper account of the inherent strength and weaknesses, probabilities
and improbabilities
on both sides, and having done so, I find that
the balance weighs so heavily in favour of the State, so as to
exclude any reasonable
doubt of the accused’s guilt.
[42]
In conclusion, I find that on a consideration of the totality of the
evidence the prosecution
has discharged the onus to prove beyond
reasonable doubt that the accused has committed the crimes as
charged. On the other hand
the accused has failed to give an
explanation of innocence which is reasonably possibly true. and his
version is accordingly rejected
as beyond false.
[43]
I am of the firm view, after a careful analysis of all the viva voce
and objective documentary
evidence, that the only reasonable and
inescapable conclusion is that the accused is the person who
viciously assaulted the deceased
during the early hours of 13 October
2019. Nothing more! Nothing less!
[44]
In the result, the accused is found guilty as follows:
[a]
COUNT 1
:
MURDER READ WITH THE
PROVISIONS OF SECTION 51(1)(a) AND PART 1 OF SCHEDULE 2 OF ACT 105 OF
1997
[b]
COUNT 2
:
RAPE READ WITH THE
PROVISIONS OF SECTION 51(1) OF ACT 105 OF 1997
__________________________
C
I MOOSA
JUDGE
OF THE HIGH COURT
MPUMALANGA
DIVISION
MBOMBELA
FRIDAY,
01 APRIL 2022
Counsel
for State:
Adv TSJ Bekwa
Instructed
by:
Director of Public Prosecutions
Mbombela
Mpumalanga
Counsel
for Accused
Adv K W Manzini
Instructed
by:
Legal Aid South Africa
Mbombela
Mpumalanga
Dates
of hearing:
15 November 2021
16 November 2021
17 November 2021
25 November 2021
02 December 2021
03 December 2021
10 January 2022
28 March 2022
29 March 2022
01 April 2022
Heads
to be filed on:
29 March 2022
Date
of judgment:
01 April 2022
[1]
2003
(1) SACR 97
(SCA); See also S v Trickett 1973 (3) SA 526 (T)
[2]
Susha
v S 2011 JOL 27877 (SCA)
[3]
2012
(1) SACR 16 (SCA)
[4]
1998
(1) SACR 422
(SCA) at 426 F – H
[5]
2003
(1) SACR 97
(SCA) at 110, para [57]
[6]
2001
(2) SACR 97
(SCA) at paras [7] & [8], 100f - 101e
[7]
2005
(2) SACR 355
(SCA) at 358H – 359E, paras [14] and [15]
[8]
1959
(3) SA 337
(A) at 341A
[9]
2003
(1) SACR 134
(SCA) paragraph [15]
[10]
2003
(1) SACR 35
(SCA) at 9
[11]
1957
(4) 727 (AD)
[12]
S
v Ntsele 1998 (2) SACR 178 (SCA)
[13]
S
v Blom
1939 AD 188
at 202; See also S v Mtsweni
1985 (1) SA 590
(A)
at 593
[14]
S
v De Villiers
1944 AD 493
at 508-509
[15]
S
v Burger 2010 (2) SACR 1 (SCA)
[16]
S
v Mseleku
2006 (2) SACR 574
(D)