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[2022] ZAECELLC 36
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S v Ntombana (54/2022) [2022] ZAECELLC 36 (29 December 2022)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION
(CIRCUIT
COURT HELD AT KOMANI)
NOT
REPORTABLE
Case
no: 54/2022
In
the matter between:
THE
STATE
and
AKHONA
NTOMBANA
Accused
JUDGMENT
Govindjee
J
Background
[1]
Mr Ntombana pleaded not guilty to four
counts of rape, two counts of attempted rape, a count of theft and a
count of assault with
intent to do grievous bodily harm.
[2]
His identification as the perpetrator of
many of these offences rests on the clothing and headgear allegedly
worn during the commission
of the offences. The clothing consisted,
in particular, of a khaki pants, black short-sleeve top and dirty
All-Star takkies (‘the
clothing’). The perpetrator also
usually wore a homemade balaclava, consisting of a pantyhose with
cut-outs for the eyes
(‘the balaclava’), when attacking
his victims. It is alleged that Mr Ntombana was arrested wearing the
clothing and
that when a beanie was removed, the balaclava was
discovered underneath. In certain instances, it is alleged that the
perpetrator
used a knife to subdue his victims, and that the knife
was discovered in Mr Ntombana’s possession at the time of his
arrest.
The evidence
[3]
Ms ML says that she noticed a person alone
at a bus stop a month or two after she had been raped, when she was
driving with her
boyfriend (‘Mr L [....]’). That person
was wearing the clothing, which she recognised, and had the tall,
slender build
of her attacker. She and her boyfriend decided to
telephone the investigating officer, Detective Warrant Officer
Mokheseng (‘DWO
Mokheseng’), and inform him. They also
approached the person at the bus stop and told him he looked
familiar. DWO Mokheseng
advised them to park their vehicle at a place
he would meet them, and to drive with him in his vehicle. The man who
had been seated
at the bus stop was no longer present by time they
returned to that spot with DWO Mokheseng. They searched for him and
eventually
spotted the man, who was still wearing the same clothing.
The man denied having been at the bus stop. Ms ML and her boyfriend
pointed
out the person to DWO Mokheseng as the person who had been
seated at the bus stop. When the beanie he was wearing was removed,
the balaclava was visible on his head. Mr L [....] searched the
pockets of the man and removed a knife. Ms ML recognised the
balaclava
and the knife as having been used at the time she had been
raped, and confirmed this with reference to a photograph submitted
into
evidence.
[4]
The rape occurred on 3 December 2021,
before 11h00 close to Egqili High School, Hilton, Aliwal North. A man
carrying a knife and
stick, wearing the balaclava and the clothing,
grabbed Ms ML on her neck and dragged her towards nearby bushes. Her
face was covered
with a jersey she was wearing and she was made to
lie on her back. Ms ML removed the jersey after her dress had been
lifted and
panty removed, while the man was wearing a condom and
kneeling on top of her. He had lifted the balaclava off his face and
placed
it on top of his head. Ms ML managed to see the perpetrator’s
face through the jersey, and noticed his big eyes, his hairstyle
and
that he was dark skinned. Having instructed her to cover her face
with the jersey again, the man proceeded to rape her, also
performing
fellatio on her after having penetrated her with his penis. While he
did so, Ms ML pleaded with him, fearing for her
life. The man had
used the balaclava to cover his face by time he had removed the
jersey from her face, and they parted ways.
[5]
Ms ML reported her rape to Ms M [....] M
[....] 1 immediately thereafter, before borrowing a telephone to call
her boyfriend, as
confirmed by Ms M [....] 1. She later identified Mr
Ntombana as her rapist during an identification parade, and pointed
him out
in court. She explained that she had taken a minute to do so
at the parade in order to be deliberate and make doubly sure that the
correct person was pointed out. She disputed that Mr L [....] had
produced the knife and had lied by saying he had found it on
Mr
Ntombana, or that Mr Ntombana had been wearing a ‘mouth and
nose’ mask (‘the mask’) underneath his beanie.
Mr
Ntombana’s version of what he had been wearing at the time of
his arrest was also disputed.
[6]
Ms ML was an excellent witness who had no
difficulty in conceding that she was uncertain whether the black
T-shirt she identified
in the photograph was the same as that worn on
the day of her rape. It was the khaki pants and identical shoes that
had caused
her to stop the vehicle driven by Mr L [....] when they
saw Mr Ntombana at the bus stop. Any doubts had been removed when
they
discovered the balaclava and knife on him. Ms ML had confirmed
that the clothing worn by Mr Ntombana on the night of his arrest
as
being that worn by her rapist the following day, when she had been
called to the police station to view the clothing, as confirmed
by
photographs accepted into evidence.
[7]
Mr L [....] and DWO Mokheseng corroborated
Ms ML’s testimony. They were both strong witnesses who
testified with apparent
honesty and credibility, providing crisp,
reliable accounts of what they had observed at the time of the
arrest. When Ms ML had
spotted the familiar-looking person at the bus
stop, Mr L [....] had turned his vehicle so that the lights shone on
the person.
Ms ML had then been convinced that this was her rapist
based on his attire. Approximately five minutes later, when
travelling with
DWO Mokheseng, they had come across the same man who
had been at the bus stop, who was now walking towards Joe Gqabi
Location.
He was wearing the same attire and Ms ML had again
recognised him while DWO Mokheseng had grabbed hold of him. Mr L
[....] had
been asked to assist in apprehending the person. DWO
Mokheseng had removed the hat and the balaclava had then been
visible. Mr
L [....] had searched the person and discovered the
knife, which Ms ML recognised as that produced during the time of her
rape.
According to Mr L [....], that person was Mr Ntombana, whom he
pointed out in court, and the item found on top of his head was the
balaclava, not a different mask. Mr L [....], while readily conceding
that the pants he had observed that night might be described
as
brown, rather than khaki, confirmed the items depicted in a
photograph as those worn by Mr Ntombana at the time of his arrest,
including the balaclava. The knife he had found on Mr Ntombana was
also identified in this manner.
[8]
DWO Mokheseng, stationed at Aliwal North’s
Family Violence, Child Protection and Sexual Offences Unit, is a
detective with
20 years’ experience, and the officer assigned
the investigation of a number of rape cases that occurred between
2021 and
2022. He largely confirmed Ms ML’s and Mr L [....]’s
version of events on the evening Mr Ntombana was arrested. He
explained that the bus stop that had been referred to was close to
Egqili High School. Both Ms ML and Mr L [....] had pointed out
a
person walking on a path. This turned out to be Mr Ntombana, who was
wearing the clothing. As DWO Mokheseng was conversing with
Mr
Ntombana, Ms ML had exclaimed ‘This is the person’,
prompting him to grab Mr Ntombana tightly on his waist, instinctively
using his other hand to remove the beanie on his head. He called Mr L
[....] to assist him and had observed the balaclava on Mr
Ntombana’s
head. Mr L [....] had conducted a search and found a knife with a
black handle, which was subsequently recognised
by Ms ML as the knife
her rapist had held.
[9]
DWO Mokheseng had taken Mr Ntombana to his
home to fetch spare clothing and said he had been given another knife
by Mr Ntombana
while there. He had requested Mr Ntombana to change
clothing when they had returned to the police station, and bagged the
clothing
he had been wearing. That clothing had subsequently been
shown to various rape complainants, who had positively identified the
items.
[10]
The clothing and beanie had also been shown
to Ms Rehatile Mokwane. She has been Mr Ntombana’s girlfriend
since at least 2021.
When the clothing had been shown to her, she had
recognised the pants, T-shirt and shoes and confirmed that these
items belonged
to him. She testified that the two knives that had
been shown to her were used in their home, the second knife being
plastic and
the property of their child. She had confirmed to DWO
Mokheseng that she recognised those items of clothing and that they
belonged
to Mr Ntombana. During cross-examination the witness
testified that she may have been mistaken in believing that those
items of
clothing belonged to Mr Ntombana. She clarified this to
explain that she believed it was possible that somebody else had
possessed
identical pants, T-shirt and knife. She said she had
discarded the shoes herself in December 2021.
[11]
Ms
NM (‘NM’) had been walking on a path behind Egqili High
School on 17 January 2022 at 14h00. She was 12 years old
at the time.
A male person wearing brown pants, a black T-shirt, old-looking, torn
All-Star takkies, a black object, seemingly
a pantyhose, on his
forehead, above his eyebrows and wearing a hat, had appeared. She had
run away but was caught by the man. The
man had taken out a black
knife and threatened her if she did not accompany him ‘up the
mountain’ to a gravesite area.
He then raped her four times,
causing her to bleed, and had also slapped her.
[1]
[12]
NM clarified that the perpetrator’s
face had not been covered when she had been accosted, when she had
been chased and taken
to the gravesite area. He had subsequently
dropped the pantyhose to cover his face, barring his eyes. She
identified him as being
slender, with coffee-coloured skin and thick
eyebrows, and had pointed him out, following a two-minute period,
during an identification
parade.
[13]
Ms
SS (‘SS’), 16 years of age at the time, had been walking
close to a gravesite area when a male person appeared. He
had called
her, she had run away, slipped and been caught. She was dragged to
nearby bushes and told to undress. Having refused,
the perpetrator
removed her clothing and then raped her once without a condom.
[2]
He then suggested that she accompany him to another secluded area and
wanted her to add his telephone number to her mobile phone.
She gave
him the phone. He returned it to her when the number did not save and
took it back to try again. SS managed to flee while
he was tying his
shoes, and while he was in possession of the phone.
[14]
SS described her attacker’s dress.
Her description matched that of the clothing. The perpetrator had
also worn the balaclava
and carried two sticks. SS was able to
confirm her description of the clothing and balaclava with reference
to a photograph accepted
into evidence. She had also done so when
called to the police station to view the clothing. The complainant
added that the perpetrator
had been neither tall nor short, and had
been slender and dark in complexion. The cell phone she had been
carrying was never recovered.
Ms K Kahlu testified that the incident
had been reported to her by SS, who was her cousin.
[15]
Ms AS (‘AS’), fourteen-years of
age at the time, had needed the toilet during the early evening of 21
November 2021.
She asked her cousin, Ms AY S (‘AY S’) to
accompany her. While relieving herself she heard footsteps, followed
by the
sound of her cousin crying. She saw a male person holding her
cousin, who managed to free herself. The girls ran away. AY S was
caught and the man threatened to kill her if AS did not return. They
were taken to a secluded spot and he covered the girls with
a blanket
so that they could not see him. They undressed after being told to do
so. Both girls were then raped, she said. AS was
subsequently raped
for a second time. The man left them covered by the blanket and, when
they eventually departed the scene, AS
left her panty behind.
[16]
AS described the rapist as a slender person
of average height. His clothing matched the clothing that had been
recovered and photographed.
The person had also been wearing the
balaclava, without any beanie. AS had been able to see the face of
the perpetrator just prior
to being raped, as the balaclava had been
folded up his forehead at that time. She explained that there had
still been sufficient
sunlight at the time for her to do so, even
though she had been looking through the blanket. At some point she
suggested that the
blanket had dropped for a few seconds allowing her
to see his face. AY S had been close by, approximately a metre away,
and they
had been jointly covered by the same blanket.
[17]
The person carried a knife and had threated
to stab the girls. AS had subsequently pointed out Mr Ntombana during
an identification
parade, following a period of a minute and a half,
and again in court, as the person who had raped her. Photographs of
the clothing
were confirmed as being photographs of what the attacker
had worn at the time she had been raped.
[18]
AY S, who had been fifteen at the time,
confirmed much of her cousin’s testimony. The perpetrator,
whose face was covered
with the balaclava at the time, had placed a
knife on her forehead. She had heard AS crying after AS had been
taken to a nearby
stone. Thereafter, and having covered AS with the
blanket, the perpetrator had made AY S lie on her back. He had tried
to insert
his penis into her vagina but was unable to do so as he was
not erect. She had been crying and scared and had begged him to leave
her alone. She was again covered by the blanket and heard AS crying
again thereafter.
[19]
The attacker was described as being of
average built, slender with big eyes. He had been wearing the
clothing and the balaclava
and those were recognisable to AY S from
the photographs of the clothing shown to her. As with AS, she had
been photographed in
a room with that clothing. She also indicated
that one of the knives that had been recovered had been placed on her
forehead.
[20]
Eventually
they were left covered by the blanket and they left the scene,
reporting the incident to AS’s mother, Ms BS, who
confirmed
this when she testified. She also said that AS had been full of blood
on her dress when the incident was reported.
[3]
[21]
Ms KM (‘KM’) had been 13-years
old when she had asked her boyfriend, Mr AN S (‘AN S’) to
accompany her to
relieve herself. A male person had appeared and
pulled her towards him, trying to lower her panty while she lay on
her back, and
pulling her legs towards him. She had tried to fight
him off and called AN S to assist. He managed to remove the assailant
from
her body and KM ran away. When she next saw him, he was bleeding
from the head. KM said that the attacker had covered his face but
was
able to match what he had worn to the clothing, beanie and balaclava
later shown to her, which she had recognised, as confirmed
by
photographs accepted into evidence. She described the person as tall
and slender.
[22]
AN S confirmed much of KM’s
testimony. He had noticed a man, whose face was uncovered, walking
past him while he waited for
KM to relieve herself. When he was later
summoned by KM, that man had been kneeling on top of her, wearing the
clothing and the
balaclava, without any beanie. They had fought once
he had removed the man from on top of KM. The slightly tall man,
slender built
and dark skinned, attempted to stab him when he slipped
and then repeatedly hit his head with a stone, causing open injuries.
AN
S did, however, manage to prevent the man from stabbing him by
holding the man’s hand which was holding the knife, sustaining
only a slight cut. He eventually managed to escape and ran away.
[23]
AN S identified the clothes worn by his
assailant when they were shown to him, but had not seen the person’s
face. He had
specifically noticed the All-Stars, having owned a pair
of those shoes, when fighting with the man.
[24]
DWO Mokheseng had explained, during his
testimony, that he was properly trained to collect buccal samples and
certified to do so
during 2014. He explained the process he had
followed in collecting these samples. The pack would have been opened
in the presence
of Mr Ntombana. The inventory form would then be
completed and signed, with Mr Ntombana’s thumbprint affixed.
Due process
had been followed and a witness had been present. The
samples, which had been sealed in Mr Ntombana’s presence, had
been
registered in the SAP 13 register and packed in a sealed bag
before being dispatched to the laboratory in Gqeberha. He insisted
that, in the absence of any other trained individual being present,
he was permitted to take the samples even though he was the
investigating officer of the case.
[25]
Mr Ntombana repeatedly indicated that he
had no knowledge of the various incidents in question. His defence
rested on the version
that he barely left his home and, therefore,
could not have been at the places the crimes had been committed. He
acknowledged having
been pointed out at various identification
parades but denied knowledge of any of the associated crimes.
[26]
He provided various details about what had
occurred at the time of his arrest. DWO Mokheseng had grabbed him
roughly and he had
been taken inside their motor vehicle. He had
noticed Ms ML crying in the back seat of that vehicle. When his navy
hat had been
removed by DWO Mokheseng, the mask was visible and had
been removed. It had been Mr L [....] who had planted the knife in
his pocket
while they were seated in the backseat of the vehicle,
before removing it and showing it to the others.
[27]
Mr Ntombana said that he was wearing a
‘Dickies’ brown trouser, black short-sleeve T-shirt,
‘navy-white’,
new All-Star takkies and the mask. When
shown the picture of the clothing accepted into evidence, Mr Ntombana
denied that the pants
depicted belonged to him. The T-shirt depicted
was, he said, unclear so that he denied owning that item. He denied
wearing the
balaclava or having it in his possession and also denied
owning the shoes depicted in the photograph. As for the hat depicted,
he denied ownership on the basis that his hat was navy in colour. He
had no knowledge of the knives in the photograph shown to him,
had
not given DWO Mokheseng the second knife and had not been tested for
saliva. He also disputed his signature on the inventory
document
pertaining to the buccal sample, stating that if what was depicted
was ‘NA’ then it would be his signature,
but because the
signed lettering appeared to read ‘ND’ he required
further clarification. In any event, he said he
had been made to sign
a document without any explanation being provided to him.
[28]
Mr Ntombana had little to add during
cross-examination. He seemed to agree that it appeared as if the same
person had committed
the various crimes, which had all occurred in
the vicinity of Egqili High School towards the mountain. He was
indeed slender in
build, and tall, but that was not unusual. He could
not dispute the description of the clothing worn by the perpetrator
and agreed
that he had been pointed out at various identification
parades. He could not comment on the size of his eyes and testified
that
he could also not comment on the skin colour of his face, as he
was only able to see his hands, which were dark brown in colour.
He
nevertheless denied that he fitted the description provided by the
various complainants.
[29]
As to the clothing that had been linked to
him, he denied ever possessing a khaki trouser. He only had a brown
Dickies trouser and
these trousers had paint on the side. While he
possessed All-Star takkies, his were navy-white and new, unlike those
depicted in
the photographs. His girlfriend had been mistaken when
she identified the clothes in the photograph as belonging to him and
recognised
the two knives depicted. He could not offer any reason why
she would have lied about this.
[30]
Mr Ntombana said that a photograph had been
taken at the police station during the early morning hours following
his arrest. He
could not explain why this had not been put to any of
the witnesses who had testified about his attire at that time. The
complainants
who had seen the face of the person who had attacked
them had all been mistaken. This, he said, was because he had a gap
in his
teeth that should have been identifiable to anybody who saw
his face. He also denied the DNA results on the basis that no blood
had been drawn from him.
[31]
He also disputed the evidence of Ms ML, DWO
Mokheseng and Mr L [....] in respect of the discovery of the
balaclava under his hat
on the night of his arrest, even though he
could not explain why they would have all accused him falsely. He
recalled being made
to sign four pieces of paper, and affixing his
thumbprint on a document, but claimed that no buccal swab had been
taken.
[32]
As to his movements, Mr Ntombana claimed to
be at home for each and every day unless somebody called on him to do
some work. He
was self-employed he said, and could not recall when he
had left home to perform any work. On the day of his arrest, he was
on
his way to visit a person named Vuyani. He added that this was the
first occasion he had exited his home for this reason. He had
been
wearing his brown Dickies pants, with red paint on the side or front,
a navy hat, the mask, a short-sleeve black T-shirt and
new navy-white
takkies at that time, and not the clothing depicted in the various
photographs.
Analysis
[33]
An
accused person may only be convicted if, after proper consideration
of all the evidence presented, his guilt has been established
beyond
reasonable doubt. It follows that an accused person must be acquitted
if it is reasonably possible that he might be innocent.
[4]
Before rejecting an accused’s version on the probabilities, the
court must be able to find, as a matter of probability, that
the
accused’s version is simply not reasonably possibly true. If
the accused’s version is reasonably possibly true
in substance
the court must decide the matter on the acceptance of that
version.
[5]
[34]
Where
there is a conflict of fact between the evidence of the state
witnesses and that of the accused, the court is required to
consider
the merits and demerits of the state and defence witnesses, as well
as the probabilities of the case, before concluding
whether the guilt
of an accused has been established beyond reasonable doubt.
[6]
[35]
It
is necessary to adopt a holistic approach to analysing the available
evidence in this matter.
[7]
In
S
v Chabalala
,
[8]
the SCA explained this 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 count 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.’
[36]
The
Court’s conclusion must account for all the evidence, whether
it is found to be false, unreliable or only possibly false
or
unreliable, and the appropriate process of reasoning depends on the
nature of the evidence before the Court.
[9]
While it is necessary to critically analyse each component in the
body of evidence presented, it is also necessary to consider
the
picture as a whole.
[10]
[37]
As
the SCA confirmed in
Kotze
v S
[11]
where a trial court is faced with two mutually destructive accounts,
logic dictates that both cannot be true. In order to determine
the
objective truth of the one version and the falsity of the other, it
is important to consider not only the credibility of the
witnesses,
but also the reliability of such witnesses. Evidence that is reliable
should be weighed against the evidence that is
found to be false and,
in the process, measured against the probabilities. In the final
analysis the court must determine whether
the state has mustered the
required threshold proof beyond reasonable doubt.
[38]
Given that the state’s case rests on
the identification of Mr Ntombana as the perpetrator of the various
crimes, which depends
on disputed human observation, also as to the
clothing worn by Mr Ntombana on the night of his arrest, this court
is obliged to
carefully consider all the surrounding circumstances
before deciding whether the state has proved beyond reasonable doubt
that
he is indeed the perpetrator.
[39]
As
the SCA held in
S
v Mthetwa
:
[12]
‘
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is
not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various
factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation, both as to
time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused’s
face, voice, build, gait, and dress; the result of identification
parades, if any; and, of course, the evidence
by or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case
are not individually decisive,
but must be weighed one against the other, in the light of the
totality of the evidence, and the
probabilities …’
[40]
As indicated, Ms ML, Mr L [....] and DWO
Mokheseng were particularly impressive witnesses. They corroborated
one another’s
evidence in material respects as to the events
leading to the arrest of Mr Ntombana. That corroboration came
naturally as they
all testified in a manner that conveyed the clear
impression of witnesses speaking the truth. That impression is
enhanced when
considering the slight differences in their versions of
what occurred. Crucially, their evidence, taken together, confirms
unequivocally
that Mr Ntombana was wearing the balaclava underneath
his navy beanie at the time he was arrested. The explanation that he
was
in fact wearing the mask, and not the balaclava, is contrived,
particularly when considering the plethora of other evidence
available.
The balaclava was an item that had been modified to serve
a particular purpose and it is unsurprising that each of the
complainants
recalled it and recognised it when given the opportunity
to do so, given that this either covered the face of the person who
was
accosting them, or was placed on his forehead.
[41]
It must also be accepted that Mr Ntombana
was wearing the clothing and beanie at the time of his arrest. That
clothing was taken
from him after he had been taken to his home to
fetch other attire. The clothing was photographed and various items
were recognised
by Ms Mokwane as belonging to Mr Ntombana when they
were shown to her at the time by DWO Mokheseng. Her plain attempt to
distance
herself from this, by suggesting during cross-examination
that she may have been mistaken, and during re-examination that she
had
thrown away the All-Star takkies herself, does not alter the
position. She clarified her about-turn by explaining that her
‘mistake’
was based on the possibility that somebody else
might have possessed identical clothing to Mr Ntombana. Given the
dirty state of
the pants and tattered footwear, that possibility is
remote. It is apparent that Mr Ntombana was wearing the clothing,
which belonged
to him, at the time of the arrest. Ms Mokwane’s
testimony, taken in its entirety, supports that conclusion, which has
as
its foundation the strong testimony of Ms ML, Mr L [....] and DWO
Mokheseng. That clothing was the reason he was recognised by Ms
ML
prior to his arrest, leading to the discovery of the balaclava, which
itself was a particularly recognisable and memorable item.
It is the
same clothing that was recognised when shown to the various other
complainants. Mr Ntombana’s explanation that
he was wearing
similar, but different, clothing at the time of his arrest, must be
rejected as a fabrication. He claimed that a
photograph had been
taken of him in the clothing in the hours following his arrest. Yet
this was never put to DWO Mokheseng and
appears to have been an
afterthought.
[42]
In addition, Mr L [....]’s
explanation as to his discovery of the knife must be accepted. He had
assisted DWO Mokheseng with
the arrest and, considering his
suspicions and that he would be seated in the back of the vehicle
with him, had searched Mr Ntombana.
DWO Mokheseng had placed the
knife on the dashboard, where Ms ML had recognised it. That knife was
also identified by Ms Mokwane
as a utensil that was familiar to her
and was used in their home. Any suggestion that Mr L [....] would
have conspired with DWO
Mokheseng by carrying a knife, which happened
to be of the kind used by Mr Ntombana and Ms Mokwane, and using it to
falsely implicate
Mr Ntombana, must be rejected.
[43]
Given
those findings, and as argued by
Mr
Mgenge
for the state, the circumstantial evidence connecting Mr Ntombana to
the various counts is overwhelming. This despite the fact
that some
of the charges are based on the testimony of single witnesses, most
of whom are children, so that the necessary caution
must be applied
in evaluating the evidence in respect of those counts. As will be
apparent, their evidence is consistent with all
the proved facts that
he was the person who preyed on vulnerable victims in the area close
to Egqili High School. While I accept
that there may have been some
suggestibility regarding the pointing out of the clothing by the
complainants, the proved facts are
such that they exclude every
reasonable inference save this outcome, so that there can be no doubt
that his guilt has been established.
[13]
[44]
The state has proved, on this basis, that
it was Mr Ntombana who raped Ms ML, also by performing fellatio on
her without her consent
and against her will, on 3 December 2021.
Even when applying the necessary caution to her testimony, given that
she was a single
witness to her rape, her description of the person
who raped her was reliable when considering the various factors
listed in
Mthetwa
,
particularly the recollection of the dress and the close proximity of
the person to her. I accept
Mr
Geldenhuys’
submission that the
outcome of the identification parade must carry less weight in the
case of Ms ML, given that she had identified
Mr Ntombana based on the
clothing he was wearing just prior to the identification parade.
[45]
It has similarly been proved that Mr
Ntombana repeatedly raped NM on 17 January 2022. In addition to the
compelling circumstantial
evidence related to his clothing, she
recognised his face and was able to point him out at an
identification parade. I accept that
she had seen his face only
briefly before having done so. But this was at close quarters at a
time of the day when it would have
been light, and with some
opportunity for her to have observed his face and build prior to the
time he covered his face with the
balaclava, so that her evidence is
accepted as reliable and consistent with the probabilities.
[46]
Importantly,
Mr Ntombana’s guilt in respect of count 8 is further supported
by the available DNA evidence. DWO Mokheseng’s
detailed
explanation of the process he followed prior to obtaining the buccal
sample, including how Mr Ntombana’s signature
and fingerprint
would have come to be on the inventory document, must be accepted.
Even though he was the only witness to testify
regarding the
administration of this procedure, his testimony was convincing. He
had been fully trained and certified to obtain
the sample and was a
seasoned, experienced officer. While I am alive to the fact that he
was also the investigating officer, it
was readily apparent that he
made no attempt to embellish the manner in which he would have
explained the checklist of information
to Mr Ntombana in summarised
fashion. The suggestion that Mr Ntombana, who by then was facing a
host of serious offences, would
have signed the document confirming
this, and affixed his thumbprint, without any indication of the
reasons for this, must be rejected
as not reasonably possibly true.
The accepted evidence links the sample, taken from Mr Ntombana’s
saliva and sent for analysis,
to NM’s vaginal swab and panty
stain.
[14]
For all these
reasons, and notwithstanding application of the necessary caution
considering that she was a single child witness
to her ordeal, it has
been proved beyond reasonable doubt that Mr Ntombana is guilty as
charged in respect of count eight.
[47]
The DNA evidence links Mr Ntombana directly
to count three in the same way, with a similar chain of evidence,
which has been accepted.
That link is supported by SS’s
recollection of the clothing worn by her rapist, her description of
his build, the modus operandi
of the attack and its location. Despite
applying the necessary caution in respect of her evidence as a single
child complainant,
the state has proved beyond reasonable doubt that
Mr Ntombana is guilty of this count, based on the accepted DNA
evidence as supported
by the other factors mentioned.
Mr
Mgenge
conceded, however, that the
charge of theft, in count four, had not been proved, given the
absence of proof of intention to appropriate
the property.
[48]
AS was also able to identify the clothing
and balaclava that has been linked to Mr Ntombana. She was an
intelligent witness who
spoke with a clear recollection. Her
description of her rapist’s build is consistent with his build.
She had managed to see
his face briefly, either through the blanket
or when it dropped from covering her, and pointed him out at an
identification parade.
Much of her evidence as to the clothing,
balaclava and build of the attacker was supported by that of AY S.
Given the findings
in that respect, this is sufficient circumstantial
evidence on its own to link Mr Ntombana to count one beyond
reasonable doubt.
It might be added that in respect of her facial
recognition, her evidence must be treated with the necessary caution,
given that
she was a single child witness in that regard. I
nevertheless consider her identification to be reliable, particularly
when considering
her close proximity to Mr Ntombana at the time, the
lack of mobility of the scene and her ability to point him out at the
identification
parade. In coming to this conclusion, I accept that
the lighting and visibility may have been somewhat compromised, and
that there
was some suggestibility in the clothing identification
process. Nevertheless, in all the circumstances the state has proved
beyond
reasonable doubt that Mr Ntombana is guilty of the charge in
count one.
[49]
It
must also be accepted that Mr Ntombana was the person who attempted
to rape AY S before raping AS for a second time. Her description
and
identification of his clothing, the balaclava and knife confirm this,
and is corroborated by the testimony of AS, who was mistaken
in
believing that AY S had actually been raped. Their evidence was
slightly different in respect of the way in which the blanket
had
been used to cover them, but this is not material to the evaluation
of their evidence and consistent with the type of contradiction
to be
expected of children testifying about a traumatic event. As to the
attempt itself, I am satisfied that Mr Ntombana’s
conduct went
beyond preparation. On the facts he tried to insert his penis into
her vagina unsuccessfully, thereby performing an
act of consummation,
and is guilty of attempted rape, as charged in count two.
[15]
[50]
KM and AN S corroborate one another in
respect of the clothing and balaclava they had observed, as well as
in respect of the alleged
attempted rape and assault with intent to
do grievous bodily harm charges. Both were good, cogent witnesses,
who testified honestly
and without any hint of exaggeration. It has
been proved beyond reasonable doubt that the clothing and balaclava
belonged to Mr
Ntombana. The modus operandi is also consistent with
that of the other incidents, as is the location of the crimes. I am
satisfied
that it has been proved beyond reasonable doubt that Mr
Ntombana was the perpetrator of these offences too, and that he
attempted
to rape KM. That attempt was prevented by AN S, who was
repeatedly assaulted with a stone on the head, with the intent to
cause
grievous bodily harm, by Mr Ntombana.
[51]
This judgment has found that the state has
proved beyond reasonable doubt that Mr Ntombana is guilty of all
charges, barring one.
It is, in addition, appropriate to make some
additional remarks about Mr Ntombana’s denials and testimony,
which support
this outcome. The demerits of his evidence are
sizeable. He is 23 years of age and had written grade 11
examinations, suggesting
some level of school education and
intelligence. His testimony lacked candour and he appeared to be
determined to repeat stock
answers whenever possible. He refused to
concede basic matters, such as his own signature, and could not
provide an address for
his place of residence. At times his testimony
beggared belief, for example when he claimed not to have ever seen
his own face,
or to leave his home only very rarely. This affected
the assessment of his credibility negatively. While he consistently
made reference
to wearing a navy beanie at the time of his arrest, he
refused to concede that the beanie depicted in various photographs
was the
same item, even though it was clearly navy in colour, without
providing any real reason for this. He offered half-truths on
occasion,
admitting to wearing a mask underneath his beanie, but not
the balaclava, and suggesting that his clothing had been only subtly
different from the items he has been found to have worn. He belatedly
claimed to have been photographed wearing his ‘real’
clothing.
[52]
Importantly, there is no explanation as to
why his own girlfriend, who appeared to try to bend the truth to
support him, would have
lied when accepting that the clothing was
his. There is also no plausible basis for accepting that the key
state witnesses had
concocted a conspiracy of epic proportions to
blame an innocent person for the crimes. The suggestion seemed to be
that they had
done so despite obtaining the actual clothing worn by
the perpetrator. That man had been protected through the arrest of an
innocent
person who had coincidentally been wearing very similar, but
subtly different clothing. He had been photographed in his actual
clothing, but the police had never produced that clothing, instead
producing the clothing worn by the real perpetrator and contriving
to
have his girlfriend falsely identify that clothing, also in court.
Accepting that version implies that a buccal sample had been
drawn
from the actual perpetrator, only for all the paperwork to be
tampered with so that that sample was fraudulently linked to
Mr
Ntombana. It also suggests that each of the witnesses who had seen
his face and pointed him out at the various identification
parades
mistook him for the real perpetrator, who has been allowed to walk
free. That version is not reasonably possibly true in
substance and
must be rejected.
Order
[53]
The following order will issue:
1.
The accused, is found guilty on counts one,
two, three, five, six, seven and eight, as charged.
2.
The accused is found not guilty on count
four.
A
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard
:21-28
November 2022
Delivered
:29
November 2022
Appearances:
For
the State:
Adv S Mgenge
Director of Public
Prosecutions
Makhanda
046 602 3000
For
the defence:
Adv
D Geldenhuys
Legal Aid South Africa
Makhanda
046 636 9350
[1]
A
J88 medico-legal report was accepted into evidence, confirming that
NM had been raped.
[2]
A
J88 medico-legal report was accepted into evidence, supporting the
conclusion that SS had been raped.
[3]
A
J88 medico-legal report was also accepted into evidence, confirming
that AS had been raped.
[4]
S
v Van Aswegen
2001
(2) SACR 97
(SCA), with reference to
S
v Van der Meyden
1999 (2) SA 79 (W).
[5]
S
v Shackell
2001
(2) SACR (SCA) at 194
g-i
.
[6]
S
v Guess
[1976]
4 All SA 534
(A) at 537-538;
S
v Singh
1975 (1) SA 227
(N) at 228.
[7]
Van
Aswegen
op
cit fn 9. For an application of
Stellenbosch
Farmers’ Winery Group and Another v Martell et Cie and Others
to resolving two conflicting versions between the State and the
accused in criminal proceedings, see
Kuhlane
v S
[2020]
ZAECGHC 124 para 10 and following.
[8]
S v
Chabalala
2003
(1) SACR 134
(SCA) para 15. Also see
S
v Dlamini
2019
(1) SACR 467
(KZP) para 25.
[9]
Van
der Meyden
op
cit fn 9 at 81I - 82E.
[10]
S
v Mbuli
2003
(1) SACR 97
(SCA) para 57.
[11]
Kotze
v S
[2017]
ZASCA 27
para 17.
[12]
S
v Mthetwa
[1972]
3 All SA 568
(A) at 570;
1972 (3) SA 766
(A) at 768A – C.
[13]
See
R
v Blom
1939 AD 188
at 201-202.
[14]
Various
affidavits in terms of s 212(8)
(a)
of the Criminal Procedure Act, 1977 (Act 51 of 1977) were accepted
into evidence uncontested, confirming the proper handling
of the DNA
Reference Sample Collection Kit in respect of the complainants for
count three and eight.
[15]
See
S
v Schoombie
1945 AD 541.