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S v Mahumane (CCD7/19) [2019] ZAKZDHC 37 (10 December 2019)

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Criminal Law
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Brief Summary

Criminal Law — Rape and Robbery — Accused charged with multiple counts including rape, robbery, and immigration violations — Accused pleaded guilty to immigration charge but not guilty to other counts — Six complainants testified to similar modus operandi involving deception and violence — Accused's denial of involvement contradicted by compelling evidence — Court found sufficient evidence to convict on counts of rape and robbery — Accused convicted on multiple counts including rape and robbery with aggravating circumstances.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was a criminal trial in the KwaZulu-Natal Local Division, Durban, in which the High Court determined the guilt of the accused, Frans Mahumane, on a series of charges involving immigration contravention, sexual violence, and acquisitive offences. The proceedings were brought by the State against Mahumane as the accused.


The matter came before the High Court on an indictment comprising 14 counts. At the commencement of the trial, Mahumane pleaded guilty to count 1 (contravening the Immigration Act 2002) and pleaded not guilty to the remaining counts. Following the guilty plea, the court convicted him on count 1 in terms of section 112(1)(a) of the Criminal Procedure Act 1977, read with section 49(1)(a) of the Immigration Act 2002.


The general subject-matter of the dispute concerned whether the State had proved beyond reasonable doubt that Mahumane was the perpetrator of multiple incidents in which women were allegedly lured under pretences of employment and then assaulted, raped, and robbed. A further issue arose concerning the correct legal characterisation of certain rape allegations for purposes of the minimum sentence regime in the Criminal Law Amendment Act 1997, specifically whether particular conduct constituted one continuous act of rape or multiple acts.


2. Material Facts


The court relied on a body of evidence from six complainants, supported by testimony from additional witnesses, police witnesses (chiefly relating to the handling of forensic exhibits), medical practitioners who examined complainants, and a forensic analyst who testified to DNA results. The court described the complainants’ accounts as uncannily similar in their description of the accused’s modus operandi.


In broad chronological sequence, the complainants’ evidence, accepted by the court, established that Mahumane repeatedly approached women by offering or facilitating purported job opportunities (often domestic work in areas such as Ballito, Salt Rock, or nearby locations). The complainants were then led, typically using taxis, trains, or by walking, to secluded areas such as forests or sugar-cane fields. There, they were threatened, physically assaulted (including strangulation and slapping), and subjected to sexual violence, and property such as cellphones and cash was taken. The complainants’ evidence included consistent features such as the accused introducing himself using names such as “Frans,” “Albert,” or “Julius,” and making representations about employment, wages, and transport arrangements.


The court treated as significant that, in relation to five of the rape complainants, medical examinations were conducted at the Thuthuzela Clinic attached to Stanger Hospital and swabs were taken and sealed in Sexual Assault Kits. Police witnesses testified to the collection, storage, and transfer of exhibits. Importantly, the court recorded that no objections were raised by the defence alleging any break in the chain of custody for the forensic evidence.


A forensic analyst, Warrant Officer PAC Mogoshoa, testified that DNA profiles generated from complainants’ samples matched buccal samples taken from Mahumane. The analyst expressed the probability of another person having an identical DNA profile as one in 2.2 trillion, and the court accepted this evidence as establishing a link between the accused and the five rape complainants beyond any doubt.


The court also relied on the manner in which the complainants’ evidence was challenged. It recorded that the complainants were subjected only to short and cursory cross-examination, and that the defence case, as put to them, was essentially that the accused denied ever seeing them before and that some were mistaken in identification. The court found that the complainants testified in an honest and forthright manner and were clearly distressed by the experience of testifying.


Mahumane testified in his own defence. The court characterised him as a hopeless witness who refused to answer most questions put by his own counsel, the prosecutor, and the court, and whose limited explanations contradicted what had been put to State witnesses during cross-examination. The court concluded that his obstructive manner was an act intended to avoid confronting the truth of his conduct.


A further factual aspect addressed by the court concerned the administration of the investigation and prosecution during 2016–2017. Evidence was led about how Mahumane had been arrested in October 2016 but was later released after cases were provisionally withdrawn when complainants and an investigating officer did not attend a pre-trial hearing. The court strongly criticised the conduct of Warrant Officer Blose in failing to secure attendance at court and described the consequences as tragic, given that further offences occurred in August 2017 after the accused’s release.


3. Legal Issues


The central legal questions the court was required to determine were whether the State had proved beyond reasonable doubt that Mahumane committed the alleged offences, including multiple counts of rape, robbery, and theft, and whether he should be convicted as charged or on competent verdicts arising from the proven facts.


A key issue involved the application of law to fact in relation to one of the rape counts and the sentencing framework: whether the evidence established two separate acts of rape (potentially engaging a different part of Schedule 2 to the Criminal Law Amendment Act 1997) or whether the conduct constituted one continuous act, thereby affecting the part of the schedule applicable to that count.


There was also an issue of whether the evidence supported the kidnapping charge (count 2). On the State’s own concessions, the court held there was no basis for a conviction on that count and entered an acquittal.


Finally, the court dealt with the appropriate competent verdict on one of the robbery-related charges. It accepted a concession that a particular count fell to be reduced from robbery with aggravating circumstances to theft, indicating a legal classification exercise based on what was proved.


4. Court’s Reasoning


The court approached the case primarily as one of evaluating the credibility and reliability of witness testimony, the extent (and nature) of any challenge in cross-examination, and the strength of corroboration furnished by forensic evidence. It emphasised the striking similarity in the complainants’ accounts of the accused’s modus operandi, and it regarded the complainants as credible witnesses who were visibly distressed when recounting events.


The court placed considerable weight on the fact that the complainants’ evidence was effectively unchallenged in material respects. While the defence stance was that the accused denied prior acquaintance and contended mistaken identification in some instances, the court found that the complainants’ descriptions of the attacks, together with subsequent identifications (including identity parades in some cases), supported the State’s case. The court rejected the defence position in light of the overall evidentiary picture, including the accused’s own unsatisfactory testimony.


A central component of the reasoning concerned the DNA evidence. The court recorded that the chain of custody for exhibits was not attacked and that medical practitioners testified to the proper collection and sealing of swabs. It accepted the forensic analyst’s evidence that the DNA profiles matched, and it treated the statistical strength of the match as compelling corroboration linking Mahumane to the rapes of five complainants. On this basis, the court found the connection between the accused and those complainants established beyond doubt.


In relation to the dispute about whether a complainant’s evidence reflected one rape or two, the court accepted argument that, on the specific evidence, the complainant described an incident in which the accused raped her until he ejaculated and then “started again,” but that there was little to indicate a clear break between acts beyond ejaculation itself. The court accepted that ejaculation alone was insufficient to justify treating the conduct as two distinct acts for legal purposes, and it aligned this conclusion with the approach taken in the authorities it cited. As a result, the court treated the relevant rape count as falling under Part III of Schedule 2 rather than Part I.


The court also dealt with concessions made by the prosecution. It accepted that there was no basis for a conviction on the kidnapping count, and it accepted that one count required adjustment to a competent verdict of theft. These determinations were presented as flowing from the evidentiary foundation before the court and the parties’ concessions.


Although not determinative of guilt, the court made evaluative remarks about police performance in earlier proceedings that resulted in the accused’s release. It found that an investigating officer failed in duties to complainants and the public, and it connected that failure to the fact that additional rapes occurred after the accused had been released. These comments formed part of the court’s broader assessment of the case history and were not framed as a legal basis for conviction, which rested on the complainants’ testimony and corroborating forensic evidence.


5. Outcome and Relief


The court convicted Mahumane on count 1 following his guilty plea, in terms of section 112(1)(a) of the Criminal Procedure Act 1977, for contravening section 49(1)(a) of the Immigration Act 2002.


After trial on the remaining counts, the court found Mahumane not guilty and discharged on count 2 (kidnapping). It convicted him on the remaining offences, subject to two adjustments reflected in the judgment: the rape count concerning Ms N[....] was treated as falling under Part III of Schedule 2 (not Part I) on the basis that the evidence did not establish two clearly separate acts of rape, and count 12 was reduced to the competent verdict of theft.


The judgment excerpt provided does not record any sentence imposed, nor does it contain any order as to costs.


Cases Cited


S v Tladi 2013 (2) SACR 287 (SCA)


S v Mavundla 2012 (1) SACR 548 (GNP)


Legislation Cited


Immigration Act 13 of 2002 (section 49(1)(a))


Criminal Procedure Act 51 of 1977 (sections 112(1)(a), 256, 260, 261)


Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (section 3)


Criminal Law Amendment Act 105 of 1997 (section 51; Schedule 2 Part I; Schedule 2 Part II; Schedule 2 Part III)


Rules of Court Cited


No rules of court are cited in the judgment excerpt provided.


Held


The court held that the State proved beyond reasonable doubt that the accused committed multiple offences involving the rape of five complainants (with one complainant subjected to three acts of rape on the evidence accepted), an attempted rape of one complainant, and associated robbery or theft of property. The court accepted the complainants’ evidence as credible and found it effectively unchallenged, and it treated the DNA evidence as establishing a conclusive link between the accused and five of the rape complainants.


The court held further that there was no basis for a conviction on the kidnapping charge, resulting in an acquittal on that count. It also held that, on the evidence and concessions made, one count originally framed as robbery with aggravating circumstances fell to be reduced to theft.


On the classification of one rape count for purposes of the Criminal Law Amendment Act 1997, the court held that the evidence did not show a sufficient break between two alleged acts to justify treating them as separate acts of rape, and therefore treated that rape as falling under Part III of Schedule 2 rather than Part I.


LEGAL PRINCIPLES


The judgment applied the principle that criminal liability must be established beyond reasonable doubt, with careful attention to the credibility of witnesses, the nature and extent of cross-examination, and the availability of corroboration. Where complainants’ testimony is found credible and is not meaningfully challenged on material aspects, and where it is corroborated by objective evidence, it may be accepted as sufficient to prove guilt.


The judgment applied principles governing the interpretation of evidence describing repeated penetration during a single incident. In particular, it applied the approach that closely connected penetrations, without a clear break demonstrating separate intentions, may constitute one continuous act rather than separate acts for purposes of classification under the minimum sentencing schedule, and that ejaculation alone does not necessarily establish a separable second rape.


The judgment further reflected the evidentiary principle that forensic DNA evidence depends on establishing and maintaining an intact chain of custody, and recorded that where the defence does not challenge the chain and the scientific evidence is properly presented, DNA matches with extremely high statistical weight may provide powerful corroboration linking an accused to sexual offences.

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[2019] ZAKZDHC 37
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S v Mahumane (CCD7/19) [2019] ZAKZDHC 37 (10 December 2019)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
In
the High Court of South Africa
KwaZulu-Natal
Local Division, Durban
Case
No. CCD7/19
In
the matter between:
The
State

Applicant
and
Frans
Mahumane

Accused
Judgment
Lopes
J
[1]
The
accused in this matter, Frans Mahumane, was charged with 14 counts:
̶
Count
1 - Contravening the provisions of the
Immigration Act, 2002
in that
he entered the Republic of South Africa without permission, and
remained in the Republic in contravention of the Act.
̶
Count
2- The kidnapping of N[....] M[....] M[....]on the 23
rd
June 2016.
̶
Count
3 - Contravening s 3 of the Criminal Law (Sexual Offences and Other
Related Matters Amendment Act, 2007) (‘the Act’)
–
the rape of N[....] M[....] M[....]on the 23
rd
June 2016.
̶
Count
4 - The robbery of N[....] M[....] M[....]on the 23
rd
June 2016.
̶
Count
5 - The sexual assault, as defined in s 3 of the Act, of K[....]
N[....] M[....]on the 10
th
July 2016.
̶
Count
6 - The robbery of K[....] N[....] M[....]on the 10
th
July 2016.
̶
Count
7 - The rape, in terms of s 3 of the Act, of S[....] M[....] on the
19
th
August 2016.
̶
Count
8 - The robbery of S[....] M[....] on the 19
th
August 2016.
̶
Count
9 - The rape, in terms of s 3 of the Act, of S[....] H[....]on the 12
October 2016.
̶
Count
10 - The theft of a tablet/mobile device and money from S[....]
H[....]on the 12 October 2016.
̶
Count
11 - The rape, in terms of s 3 of the Act, of N[....] N[....]on the
6
th
August 2017.
̶
Count
12 - The robbery with aggravating circumstances of N[....] N[....]on
the 6
th
August 2017.
̶
Count
13 - The rape, in terms of s 3 of the Act, of N[....] N[....] M[....]
on the 15
th
August 2017.
̶
Count
14 - The robbery with aggravating circumstances of N[....] N[....]
M[....] on the 15
th
August 2017.
The
charges in counts 3, 7, and 9 (rape) are all read with the provisions
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act, 2007
,
ss 256
,
260
and
261
of the
Criminal Procedure Act, 1977
,
and
s 51
and
Part 3
of Schedule 2 to the
Criminal Law Amendment Act,
1997
.
Counts
11 and 13 (rape) are read together with the provisions of
s 51
and
Part 1
of Schedule 2 to the
Criminal Law Amendment Act, 1997
.
Counts
12 and 14 (robbery with aggravating circumstances) are read with the
provisions of
s 51
and
Part II
of Schedule 2 to the
Criminal Law
Amendment Act, 1997
.
[2]
Mr
Mahumane pleaded guilty to count one, and not guilty to the remaining
counts.  Mr
Mlotshwa,
who appeared for Mr Mahumane, confirmed that the pleas were in
accordance with his instructions.  Accordingly, in terms of
112
(1)(a) of the Criminal Procedure Act, 1977 Mr Mahumane was convicted
of contravening
s 49
(1)(a) of the
Immigration Act, 2002
.
[3]
The
six complainants listed in the counts set out above all testified.
I shall provide but a brief summary of the evidence
of each of them,
because their evidence was uncannily similar when testifying to the
modus
operandi
of Mr Mahumane. All the witnesses were subjected to a short and
cursory cross-examination, recording in each case that Mr Mahumane

denied having ever seeing any of them before they testified in court.
It was a significant feature of the evidence of all six witnesses

that the giving of the evidence presented a most unpleasant ordeal to
them, and they were all emotional when describing what had
happened.
I have set out the evidence of the six complainants below.  I
have done in the order they were attacked, and not
in the sequence in
which they gave evidence.  I have done so in order to present a
more logical timeline.
[4]
On the
23
rd
June 2016:
(a)
N[....]
M[....] M[....]was on her way home from her boyfriend’s house.
On the way she met Mr Mahumane who was in the
company of her
neighbour, Mrs N[....].  Mr Mahumane referred to himself as
Frans.
(b)
Mrs
N[....] told her that Mr Mahumane was looking for an employee for his
employer, and Ms N M M[....] said that she was looking
for a job.
(c)
Mr
Mahumane then wanted to take her to see his employer but she replied
that she had to take her child home.
(d)
Ms
M[....] then went to her home leaving Mr Mahumane in the company of
Mrs N[....]. She fetched money, her bag and cell phone and
returned
to go with Mr Mahumane to his employer.
(e)
Mr
Mahumane then said he first had to fetch something at his house at a
nearby primary school.  Ms N M M[....] went with him
to some
cottages where he said he lived.  He went into the premises and
Ms N M M[....] waited on the road.  When he returned
he said
that they must go to Gledhow Station. Ms  N M M[....] refused to
do so because Mr Mahumane had said that the job was
at Ballito, and
why were they going to Gledhow.  Mr Mahumane retorted that they
had to do so in order to take a taxi to Ballito.
Ms N M M[....]
then said that she had no money to pay for a taxi and Mr Mahumane had
to pay for the taxi fare.
(f)
When
they alighted from the taxi, they walked some distance past a
football ground until they reached a residential area where Mr

Mahumane greeted people as they passed him, as if he knew them.
Eventually they reached a secluded forest and Ms N M M[....]
asked
why he had brought her there.  He explained that the only other
way was by car which was a long way around.  Ms
N M M[....] then
decided that she wanted to return, but Mr Mahumane grabbed her by the
neck and dragged her into the forest and
told her to undress.
Mr N M Mahumane then raped her. Mr Mahumane left Ms N M M[....]
sitting naked in the forest and said
that he was going to call a
friend to fetch them by car.  As he was speaking on the phone Ms
N M M[....] sneaked her dress
on, and ran towards a nearby church. As
she was running screaming towards the church a man came out of the
church and asked her
what was wrong.  She told him and he
pressed the alarm and the security guards arrived and pursued Mr
Mahumane.  Ms N
M M[....] and her rescuer then telephoned the
South African Police Services.  She was taken to a doctor who
examined her and
took swabs from her.  No condom was used in the
assault.
(g)
Ms N M
M[....] testified that Mr Mahumane had taken her Nokia cell phone
which she had purchased for R1200.
(h)
Sometime
later Ms N M M[....] heard news that someone had been assaulted at a
taxi rank for raping women after offering them jobs.
She went
down to the court where the person was appearing to see if it was the
same person.  When she realised that it was,
she told the
investigating officer in her case.  This was approximately three
to four months after the incident.
[5]
On the
9
th
July 2016 K[….] N[….] M[....]:
(a)
Told
her sister that she was looking for a job.
(b)
On the
10
th
July 2016 she was told by her sister that someone was offering three
job opportunities, one of whom had to start work on a Sunday.

They called the person concerned and asked how they should meet him
in Ballito.  She was then told not to take transport to
Ballito
but rather to meet him at 7:00am in Stanger. When Ms K[....] M[....]
arrived there she waited at the Ntshaweni Taxi rank,
from 7:00am to
8:30am, when Mr Mahumane phoned and said she must go to the Maphumulo
Taxi rank.  She waited there for a few
minutes, and Mr Mahumane
again called her and asked her where she was.  He said she must
take the road in the direction of
Hesto. She did so, and as she was
walking there she met Mr Mahumane near the fire station.  A
motor vehicle then arrived and
took them in the direction of
Stanger.  It appeared to Ms K[....] M[....] afterwards that Mr
Mahumane must have arrived in
that vehicle and then sought her on
foot.  He introduced himself as ‘Frans’ and gave no
surname.  At Stanger
they turned off onto a gravel road and she
asked Mr Mahumane where they were going.  He said that they were
going to Gledhow
to pick up his employer and some employees.
They then drove for a long distance between cane-fields. The motor
vehicle stopped
and Mr Mahumane alighted. Thinking that he was simply
going to urinate K[....] M[....] remained in the car.  Mr
Mahumane then
returned to the car and told her to accompany him.
She was uncomfortable about going in the direction of the forest and
asked
him what he was doing. He then grabbed her by the hand and
dragged or moved her away from the car.  After a distance they
reached a place where he had prepared a place by flattening the sugar
cane.  He told her to lie down and she refused.
He then
grabbed her by the neck with both hands, and she did the same to him
and held on until they both fell down.  Ms K[....]
M[....] was
the first to rise up and Mr Mahumane stood in front of her with his
fists raised - he hit her and she did the same.
He hit her again and
she retaliated again. He then kicked her and she kicked back with her
right foot.  At that stage Mr Mahumane
moved back and grabbed
her by the neck as he had done the first time.  She again
grabbed him by the neck and they both fall
backwards.  He fell
on top of her and she pushed and kicked him away.
(c)
At
that stage Ms K[....] M[....] was able to stand up, and started
screaming, crying and praying.  Mr Mahumane again came to
her
and said that she must lie down or give him ‘her back’.
She refused and said that he had not told her what
he really wanted
and she was not going to comply.  Mr Mahumane then moved a
distance away, and then ran at and kicked her.
She stood up and
he asked what was in her handbag.  He insisted that she had
money in her bag but she indicated that she only
had R26 and bank
cards.  He then told her to switch on her phone which she did.
He told her to take out her sim card
and throw it away.  As she
was doing so Mr Mahumane was distracted and Ms K[....] M[....] placed
her sim card in her breast.
She then switched the cell phone
off and gave it to him.  He insisted that she switch it on
because of the pin code.
She again switched it on and gave it
to him.  When she had given him the cell phone Mr Mahumane moved
away.  Ms K[....]
M[....] quickly collected her items and slowly
moved away from the place, but watching out for Mr Mahumane who went
and got back
into the motor vehicle from which he had alighted.
The motor vehicle travelled back towards Stanger with the people who
had
accompanied them in the car.  He had taken her cell phone
and R20.
(d)
Ms
K[....] M[....] had hidden in the sugarcane a short distance from the
motor vehicle, peeping through to see what was happening.
She
related that Mr Mahumane had spoken in the Zulu language, although
she could detect that his Zulu usage was incorrect. They
were,
nonetheless, able to understand one another.
(e)
From
there Ms K[....] M[....] walked to the freeway and a private car was
parked there with a male alongside, urinating.  He
asked her
what she was doing there because, he said, the place was dangerous.
She told him what had happened to her and he
conveyed her to the
Stanger Taxi rank.
(f)
The
next time she saw Mr Mahumane was when she was called by the South
African Police to attend an identity parade in November of
2017 when
she identified Mr Mahumane.  She stated that she remembered his
face.
(g)
She
never recovered her cell phone. She did not sustain any open wounds
when Mr Mahumane kicked her, but her body was swollen and
painful for
a long time.  She had not seen a doctor because of a lack of
money.  She said that she had reported the matter
to the South
African Police Services but they had not done anything.
(h)
In
cross-examination, Ms K[....] M[....] said she able to identify Mr
Mahumane by the gaps in his teeth and the fact that they were
black,
as if rotten. But she said she could never forget his nose.  She
reiterated that she had pointed Mr Mahumane out at
the identity
parade because he was the man who had attacked her.
[6]
On the
19
th
August 2016 S[....] M[....]:
(a)
Was
sitting under a tree with her friend, a hair dresser.  Mr
Mahumane arrived in the company of another lady to whom Ms M[....]

referred to as an ‘Aunt’.  Mr Mahumane had offered
her Aunt a job, which she had been unable to accept, and she
was
referring him to her.  Mr Mahumane said that there was a job
available at his employer for whom he worked as a gardener.
(b)
Ms
M[....] immediately went and got ready and went off with Mr Mahumane
to speak to his employer.  Although somewhat apprehensive,
she
had relaxed when Mr Mahumane said that they must take a taxi to
Ballito. They alighted at a taxi stop near the Spar in Ballito
and
went up a series of stairs to a park-like arena. Ms M[....] then
became apprehensive because they were near a church and had
not
reached the employer’s home. Near the church she could hear the
voices of people talking and Mr Mahumane instructed her
to stop to
enable him to urinate.  Ms M[....] walked on a little so as to
avoid embarrassment and Mr Mahumane grabbed her
from behind around
the neck so hard that she could not breathe or scream.
(c)
As he
attacked her she fell and her cell phone started ringing.  Mr
Mahumane threw the cell phone a distance away, undressed
Ms M[....]
and then raped her.  He then picked up her cell phone, said she
must look the other way as he dressed, and then
left.
(d)
Ms
M[....] then ran towards the church premises where she found a family
having a picnic and a male cleaner at the church.
When the male
cleaner saw her running, he stopped her and asked what had happened
to her. The family who were picnicking came over
and enquired as
well.  One of the family members gave her the use of a cell
phone and Ms M[....] phoned her father.
At that stage she was
extremely traumatised.  The South Africa Police Services were
then contacted.
(e)
The
journey from Shakashead, where she had been sitting under the tree
with her friend, to Ballito, had taken approximately 15 minutes.

The cell phone which was taken from her was a Nokia valued at
approximately R500.  At the church local security officers
arrived at the scene and started searching for her attacker, but
never found him.  The South African Police Services then
subsequently arrived. Ms M[....] was then taken to a doctor to be
examined.
(f)
Approximately
two months after the incident.  Ms M[....] was at a taxi rank in
Stanger where she witnessed Mr Mahumane being
assaulted by other
people. After the assault Mr Mahumane had been taken by ambulance to
a hospital which was a short walk from
where he had been assaulted.
Ms M[....] followed the ambulance on foot and stood outside. She
phoned the Investigating Officer.
When he arrived they went
together into the hospital and she was able to confirm that Mr
Mahumane was the man who had raped her.
When she identified
him, Mr Mahumane turned his face away and would not look at her. This
was a matter upon which the nurses, attending
upon Mr Mahumane,
remarked at the time.
(g)
No
condom was used by Mr Mahumane when he raped Ms M[....]. When she was
attended to by the doctor, samples were taken from her.
[7]
S[....]
H[....]testified that:
(a)
On the
12
th
October 2016 she had been on her way to the shop when she met Mr
Mahumane.  He told her that he was looking for a person to
go
with him to his employer to obtain a job.  He said that he had
spoken to one Maria but could not find her.  When he
did so he
pointed to a nearby place where people rent cottages.
(b)
Ms
Hlongwane had never met Mr Mahumane previously, and did not know who
the person Maria was, to whom he was referring.  Mr
Mahumane
told Ms Hlongwane that he was working for an elderly couple and that
they needed a domestic worker.  She then returned
to her home
together with Mr Mahumane in order for her to bathe and prepare to
meet his employer.  At her home she introduced
Mr Mahumane to
her mother, who asked him to clarify the position.  Mr Mahumane
repeated to Ms Hlongwane’s mother what
he had told her.
He also told Ms Hlongwane’s mother that he worked for the
elderly couple as a gardener. He advised
Ms Hlongwane to take more
clothes with her because her employer may require her to live in. He
told Ms Hlongwane that her starting
salary would be R3000 per month.
Whilst Ms Hlongwane was changing, her mother made tea and bread for
Mr Mahumane.  He
told them that they would proceed to Ballito by
way of taxi, and when she was ready, Ms Hlongwane left with him.
On the way
he received a phone call and spoke to someone. He then
told Ms Hlongwane that the call had been from a secretary of the
company
owned by his employer.  They were to go to Tinley Manor,
collect a motor vehicle there, and then proceed to his employer.

Because there were no taxis travelling to Tinley Manor, they
travelled there by train and alighted.  Mr Mahumane then pointed

out a factory building and he told Ms Hlongwane that that was where
they would fetch the motor vehicle.  It was raining at
the time,
and to avoid the muddy path, Mr Hlongwane suggested they walk along
the railway line to reach their destimation.
(c)
At
some stage along their journey Ms Hlongwane became concerned because
they were going through a place with bushes on each side.
She
expressed her concerns to Mr Mahumane who told her to relax because
whilst she was with him she was safe.  Mr Mahumane
then pointed
out a place with trees and bushes and said that that is where they
were going.  Ms Hlongwane then became suspicious
and afraid.
She told him that she was not going to continue and that he could
fetch the car and return to the station to
find her.
(d)
Whilst
talking to him Ms Hlongwane was in front of him and she then turned
and noticed that he was carrying a gun in his hand which
he pointed
at her and ordered her to go where he commanded her to go.  They
then went through a bushy area on the side of
the railway line and
then along a path into the sugar cane.  They entered a thick
forest and he told her to go into the forest
and then suggested to
her that it was time that they had sex there.  Ms Hlongwane then
became afraid, threw aside her bag
and started crying and screaming.
He said that her crying and screaming would not help her because
there was no one there
to assist her.  He said that if she
resisted him he would kill her and no one would ever find her body.
She agreed that she
would do what he wanted, but asked him to put the
gun away which he did.  When Mr Mahumane put the firearm down,
Ms Hlongwane
started running away but the grass was wet and slippery.
He pursued her, and grabbed her and struck her in the face with his
open
hand.  He then pulled out a screw driver and scratched her
with it and said he would kill her, dig a hole and bury her, and
no
one would ever find out.  He then pulled her back to where they
had left her bag and his gun.  He then raped her,
penetrating
her from behind.  When he was finished Ms Hlongwane rose up,
pushing him away and ran away. As she ran she could
hear his
footsteps from behind her. Eventually she reached a thick bush of
thorny shrubs, and she ducked and crawled under them
until she saw a
rivulet which she then crossed.  She continued until she emerged
from the forest and saw an electronic fence
around the buildings of
the company which Mr Mahumane had been indicating to her.  Ms
Hlongwane then grabbed the fence, slid
underneath and entered the
premises. She then ran to where the security officers of the company
were situated.
(e)
The
security officer immediately queried how she had got into the
premises and she pointed out the place to him. She then explained
her
story to him and he told her how lucky she was, because they were
about to arm the electric fence, and because everything was
wet, she
could have died.  He then took her to the security office and
called his boss.  After relating her story to
the security
officers they called the South African Police who arrived and took
her to Umhlali Police Station where a case was
opened.  She was
then taken to the Thuthuzela Clinic which forms part of Stanger
Hospital.  She was examined there by
a doctor who took swabs
from her. No condom had been used by Mr Mahumane when he raped her.
(f)
After
three days Ms Hlongwane returned to the scene of the crime together
with the investigating officer Warrant Officer Blose.
There
they found her bag, and the only items which were missing was her
tablet or phone and the amount of R100 which Ms Hlongwane
had
intended to use for transport.
(g)
The
next time Ms Hlongwane saw Mr Mahumane was at an identity parade at
the Inanda Police Station where she was able to point out
Mr
Mahumane.
[8]
W[....]
N[....] N[....]testified that:
(a)
On
Sunday the 6
th
August 2017 she was at home when she received a call from a friend
T[....] S[....]who told her that ‘a brother’ with
her
needed a domestic worker for his employer.  She asked where the
job was and was told that it was in Salt Rock.  After
receiving
information from T[....] , Ms N[....]  took a taxi to Ntshaweni
to meet the person looking for an employee at the
home of T[....] .
(b)
Ms
N[....]  was uneasy because the person to whom she was
introduced was a stranger, and she asked why he had not dealt with

his own community in seeking to find an employee.  He told her
that he was not a criminal and they would go to see one Philo
where
he had rented a place.  They went there and Ms N[....]  asked
Philo whether she knew the person concerned and she
said yes.
She asked her whether she knew anything bad about him, and she
confirmed that she did not.  All the while,
Ms N[....]  had
been accompanied by T[....] S[....]who now went home, and Ms N[....]
went off in a taxi with the man
to Tinley Manor. He had
introduced himself to her as Albert, but given her no surname.
At Tinley Manor she was taken to a
sugar cane field which led to a
forest.  Ms N[....]  became suspicious and afraid when she
saw that the area led to a
dead end.  The male person told her
that he did not have an access ticket to the area which could be
accessed from the road,
and they had to use an unofficial entrance.
Ms N[....]  was concerned but as she did not know the way to
Salt Rock, she was
not certain where they were going.  When they
entered the forest the male person told her to take off her clothes
and when
she refused he started hitting her with his clenched fists
and started strangling and kicking her.  He then pulled off her

clothes and told that her that her stubbornness, and not wanting to
do what she was told, would cause him to kill her.  He
then made
her lie down and raped her. He then did so again.  He then took
her cell phone, a Samsung and R500 in cash.
He then told her to
go back home and not to return to Ntshaweni.  He then gave her
R20 to be able to return home.  She
eventually found her way
back and boarded a taxi to the home of T[....] S[....]where she
related to her what had happened.
They then went to see Philo
and told her what had happened.  They asked her whether she knew
Mr Mahumane, because he had raped
her.  They then called the
police who arrived and took Ms N[....]  to the Thuthuzela Clinic
at Stanger Hospital where
she was seen by a doctor who took swabs
from her. Mr Mahumane had not used a condom when he raped her.
(c)
Ms
N[....]  testified that she had absolutely no doubt that the man
who raped her was Mr Mahumane. She said that she had seen
him after
the 6
th
August 2017 when she identified him at the Inanda Police Station at
an identity parade.  She never received her cellphone
back.
(d)
In
cross examination Mr
Mlotshwa
confirmed
to Ms N[....]  that Mr Mahumane had indeed been renting a place
at Philo’s house, but denied that he had at
any stage been
introduced by T[....] S[....]to her. He also confirmed that he had
been a suspect in an identity parade at the Inanda
Police Station and
did not know why she had pointed him out. Ms N[....]  replied
that she would never forget the man who had
done such a dreadful
thing to her.  It was put to her that she had mistakenly
identified Mr Mahumane.  Ms N[....]  then
stated that she
was not mistaken and referred to the rotten teeth in Mr Mahumane’s
mouth as part of the way in which she
identified him.  Ms
N[....]  confirmed that she had told the South African Police
that he had rented a cottage at Philo’s
place, but she did not
know whether they had followed up that lead.  It appears that he
was no longer residing at Philo’s
place when she had gone there
with Mr Mahumane and Ms T[....]  Sithole.
[9]
N[....]
N[....] M[....] testified that:
(a)
On the
15
th
August 2017 she had met Mr Mahumane on the road as she was returning
to her home after walking someway with a group of ladies who
had been
at her home.  Mr Mahumane was walking in the opposite direction
and blocked her path.  She moved aside and he
again blocked
her.  She asked him why he was doing so, and he said that she
looked like someone he used to know and he said
that person was
Mandisa Magubane.  Ms Magubane then said since he is able to see
that she is not Mandisa Magubane why was
he blocking her way.
He asked her whether she was working, and when she said no, he said
he would be able to provide her
with a job at Ballito where he was
employed as a driver.  She then asked him to go to a nearby
street light which was near
her sister’s home.  She then
called her sister who came out and she introduced her to Mr Mahumane
and she asked him
his name to which he replied that it was ‘Julius’.
(b)
Ms
Magubane then asked to see Mr Mahumane’s driver’s licence
and Mr Mahumane replied that he was normally a drinking
person and
that is why he had left his licence at work.  He said he was
working for an elderly person who needed a domestic
employee.
He said that the person who had been working for his employer was in
temporary employment because she was still
attending school, the
school had reopened, and she had returned to school.
(c)
Ms
Magubane asked him how she would get to his place of work and asked
whether he had a contact number.  He said he did not
but he
would meet her the next day at 5:30am and take her to the place.
(d)
Ms
Magubane returned home. She told her family that a man had given her
a job opportunity and he would take her on the 6:00am train
to
Ballito to meet his employer.
(e)
At
5:30am the next morning Ms Magubane was at her sister’s home
and approximately five minutes later Mr Mahumane arrived.
Mrs
Magubane was with her husband who had said that he wanted to see the
man himself.  Because he did not know Mr Mahumane,
he intended
to accompany Mrs Magubane and Mr Mahumane to the station.  Mr
Mahumane then said the he had forgotten something
at his home and he
would go and fetch it, and meet them at the station.  While he
was doing so Ms Magubane and her husband
continued to the station.
They had missed the 6:00am train and her husband returned home to
attend to their children. Ms
Magubane and Mr Mahumane waited together
for the 7:00am train.  They took the train and alighted at the
Tinley Manor station.
Mr Mahumane indicated to her that because
they had missed the 6:00am train they also missed his employer’s
motor vehicle
at Tinley Manor station, and they would now have to
walk on foot to the place of his employment.  As they were
walking along
on foot and having passed a hostel and a place where
ladies were watering flowers, Mr Mahumane picked up a dumpy bottle.
When she
enquired why he had done so, he said to her that the place
they are going through is scary and there are many criminals
loitering
there.  A short time after that he pointed to a white
building which was in the distance, and said that that was where they

were going.  There was a forest between them and the building
and he said that they should go through the forest.  At
that
stage he grabbed her from behind and dragged her into the forest.
(At this stage the witness demonstrated an arm locked
around her neck
from behind in a strangling motion.  The witness indicated
exactly the same motion which had been demonstrated
to the court by
Ms M[....]).
(f)
When
Ms Magubane tried to break away he slapped her in the face and she
fell down.  When she regained consciousness she started
crying
and screaming and said that he had promised to take her to a job but
there was no job there. Mr Mahumane then pulled off
her panties and
raped her.  All the while Ms Magubane was crying and screaming.
When he had finished doing so he slapped
her again and again. After a
while he started raping her again.  When he ejaculated for the
second time, Ms Magubane begged
him not kill her because he had said
he was going to do so right there.  He said that when he
normally rapes people they have
a tendency of laying charges against
him afterwards, and that is why he was going to kill her.  He
said he would take the
bottle, break it and use it to cut her throat
and kill her and no one would find her. Lions from the area would
come and eat her
body.  Having said all this, Mr Mahumane then
raped Ms Magubane for the third time.  He then asked her what
she had with
her and he went through her bag and removed her Samsung
J2 phone and cash of R80.
(g)
He
then told her to go off in a particular direction and he went off in
another direction.  When she was running away she became
aware
that he was following her, and he then told her to stop but she did
not and continued running.  He outran her and caught
her and
then asked her why she was running away.  They then walked
together to a road which was a long distance away.
(h)
They
went back along the road towards the hostel they had passed and Ms
Magubane saw two men standing there.  When they were
close to
them, she asked for water and one went to fetch her water and
returned.  When he did so and was to give it to her,
she grabbed
hold of Mr Mahumane crying and screaming and saying that this man had
been raping her in the forest and that her phone
and money are in his
pocket.  The two men tried to grab Mr Mahumane but he ran for
his life leaving his sandals behind.
The one who had assisted
Ms Magubane with water was shouting for assistance.  Another man
arrived and the three of them chased
Mr Mahumane but he escaped.
The man then took her to the Umhlali Police Station where she related
what had happened to her
and opened a case.  She was then taken
to the Thuthuzela Clinic at the Stanger Hospital where she was seen
by a doctor who
took swabs from her.
(i)
Thereafter
Ms Magubane had related to the ladies with whom she had been walking
after they had left her home, about what had happened
to her.
They had said to her that the rapist was Mr Mahumane, who stayed near
her home. She had then gone to the place where
he was allegedly
staying but he was no longer there. Eventually, members of the
community caught Mr Mahumane and called her and
she confirmed his
identity.  She then phoned the South African Police and Mr
Mahumane was arrested. This was approximately
a week after the
incident.  Her phone was never recovered.
(j)
It
was put to Ms Magubane in cross-examination that the ladies had been
mistaken in identifying Mr Mahumane as a rapist.  It
was put to
Ms Magubane that if he had been a rapist he would have been caught a
long time ago. It was put to her that she thought
he was her rapist
only because she had been through a traumatic experience.  Ms
Magubane denied this, and maintained that
Mr Mahumane was lying and
that he had raped her.  When Ms Magubane had phoned the South
African Police Services, they asked
her whether she had opened a case
and she gave them a case number, and they then came and arrested Mr
Mahumane.
[10]
In
addition to the complainants on the rape charges, the following four
witnesses testified:
(a)
Ms
Q[....] E[....]N[....] testified that she knew Nothando M[....] very
well. She told the Court that she had been doing her washing
in June
of 2016 when a man arrived in a working overall carrying some books.
He said that he was looking for a domestic employee
for his employer
in Ballito. Wanting to give the job to her own child, she tried to
find her contact number to phone her but could
not do so and she had
left her yard to look for her child, leaving the man behind. Because
she could not find her child, she had
spoken to various other
relatives to enable them to take up the employment.  She then
told Mr Mahumane that she wanted the
job herself but he said she was
too old.  As they were walking, they came across Ms M[....]
M[....] and she then spoke to
her about getting the job with Mr
Mahumane.  She told the Court that she had done so with a
jealous heart because she had
wanted the job for her own child.
When she heard that a man had been arrested for rape, she had gone to
the Umhlali Court
to see if it was the same person to whom she had
introduced to M[....] M[....]. She was unsure as to the identity of
that person.
She told the court that she had warned M[....]
M[....] to be sure that she that she knew where the man stayed before
leaving with
him to go and visit his employers.
(b)
T[....]
M[....]testified that she was the mother of S[....] H[....].  In
October 2016 S[....] had returned to her home with
a person who
introduced himself as Frans, who told her he was a looking for a
domestic worker for his employer, for whom he had
worked for 12
years.  He said his employer was willing to pay a salary of
R3500 per month.  She had asked him if he was
fooling them
because she had heard about women who get raped by people who offered
job opportunities and he said no he could not
have done such a
thing.  Whilst talking to her his phone rang and he had ignored
it.  S[....] had asked why he did not
answer and he said it was
his employer phoning to see where he was.  He told them that
elderly people give trouble calling
now and then. She was keen that
her daughter should get a job because she had been looking for a job
for five years’ after
she had left school.  When S[....]
was ready, Ms M[....] had walked half way to the gate with them.
She then asked her
daughter whether she had her identity card with
her, and she had gone back to fetch it.  At some stage she had
made coffee
and a polony sandwich for Mr Mahumane.  Although she
had last seen the man who had left with her daughter on that day, she

was convinced that it was Mr Mahumane.  About two hours after
they had left she received a call from S[....] telling her that
the
man who had taken her away had raped her in a forest.  She was
at Ballito Crushers where she had obtained help after she
had been
raped.  In cross-examination T[....] M[....]was adamant that she
remembered Mr Mahumane very well because he had
taken away her
daughter and he had rotten teeth in his mouth.
(c)
T[....]
Z[....] S[....] told the court that on the 6
th
August 2017 she was at home doing her washing when a ‘brother’
arrived and told her he was looking for domestic workers.
She told
him that she could not take up the position because she was pregnant
and at school. He asked her if she knew any others
who could help
him, and if so, would she phone them. He even went to the lengths of
purchasing airtime for her to do so. She then
phoned W[....]  N[....]
N[....]who later arrived at her home. When Mr Mahumane arrived back,
N[....]  wanted to photograph
him because she did not trust him,
but he refused, saying that they should rather go to see someone who
knew him. They then walked
to the home of one Philo, who said she
knew him as ‘Albert’, and that he had once rented a room
from her.  She
returned home and phoned N[....]  who said
that she had got the job and was on her way to Doringkop, to fetch
her clothes.
Later N[....]  returned in a distressed state,
saying that Mr Mahumane had raped her and robbed her of her cell
phone and
money. Later, together with Philo they went to Qubo because
they had ascertained that Mr Mahumane’s brother lived there.
They saw Mr Mahumane, but he fled the scene.
(d)
Promise
Mbokazi told the court that she was also known as Philo. Her evidence
confirmed what Ms Sithole and Ms N[....]  had
told the court.
She was emphatic that she could identify Mr Mahumane as she knew him.
[11]
Some twenty-one police officers testified to the roles which each of
them played in their part in the investigations.
For the most part,
their evidence consisted of conveying samples taken from the five
rape complainants from the clinic at the Stanger
Hospital to the
police station, the storage of those exhibits and the eventual
delivery of the exhibits to the Forensic Science
Laboratory of the
South African Police. This included the taking of buccal samples from
Mr Mahumane and the conveyance of those
samples to the Forensic
Science Laboratory. There is no point in my trolling through their
evidence, save to state that no objections
were raised by the legal
representative of Mr Mahumane that the chain of evidence established
by the witnesses was not broken
[12]
Four medical doctors testified to their examination of the five rape
complainants at the Thuthuzela clinic attached
to the Stanger
Hospital. They had taken swabs from the five complainants, and sealed
those swabs in Sexual Assaults Kits provided
to them. The sealed kits
were delivered to police officers.
[13]
Warrant Officer PAC Mogoshoa testified to his analysis of the DNA
tests which were carried out on the samples taken
from the five
complainants who were raped, together with the analyses of the buccal
samples taken from Mr Mahumane. The samples
taken from Mr Mahumane
were taken on six occasions, and all they were all identical, and
matched the other samples. He expressed
the probability of another
person having the identical DNA to Mr Mahumane as one in 2.2 trillion
people. Considering that there
are only approximately 6 billion
people on earth, he stated that the DNA samples established a link
between Mr Mahumane and each
of the five rape complainants beyond any
doubt.
[14]
That was the case for the State. Each of the six complaints, and the
additional four factual witnesses gave their
evidence in an honest
and forthright manner. The complainants were clearly distressed in
having to do so, and I have absolutely
no hesitation whatsoever in
accepting their evidence. They were effectively unchallenged in
cross-examination, and it was put to
them that prior to their
testifying, Mr Mahumane had previously never met one, never set eyes
on three of them, and that the other
two were mistaken as to his
identity.
[15]
Mr Mahumane then testified. Suffice it to say that he was a hopeless
witness who refused to answer almost all the
questions put to him by
his legal representative, the prosecutor and the Court. I have no
doubt that his obtuse and obstructive
manner was an act in order to
avoid having to deal with the awful truth of his conduct. Such
explanations as he did proffer contradicted
what had been put to the
various witnesses by his legal representative.
[16]
It is necessary for me to comment on the evidence of one of the State
witnesses – Warrant Officer Vusumuzi
Ndodo Blose. He was
stationed at the Umhlali Police Station, and was part of the Family
Violence Child Protection and Sexual Offences
Unit. He has been in
the unit since it was formed in 2008. He had been extensively
involved in the transference of samples taken
from the complaints,
having carried those samples from the hospital to the police station,
as well as performing other duties relating
to the complainants and
the investigation of the case.
[17]
It was a curious feature of the case that the rapes had occurred in
2016 over a period of five months’, and then again
over a
period of two weeks’ in August 2017. Warrant Officer Blose
testified how he had gone to the assistance of Ms M[....]
on the 19
th
October 2016, at the Stanger Hospital. Pursuant to her report he had
arrested Mr Mahumane at the hospital. He was then asked how
it was
that more rapes had occurred in August 2017. His response was that
the present Investigating Officer, Warrant Officer Deepa
Naidoo would
explain how it came about that the cases against Mr Mahumane were
withdrawn, and he was released and able to commit
further offences.
[18]
When Warrant Officer Naidoo testified, she stated that in 2017, when
Mr Mahumane had to appear in court, Warrant
Officer Blose was the
Investigating Officer, and she had been off sick. She was told that
the witnesses did not attend the pre-trial
hearing at the Stanger
Magistrates’ Court, when the witnesses were to have been
interviewed by the public prosecutor. The
charges had then been
withdrawn and Mr Mahumane released. She was certain that by then
buccal samples had been taken from Mr Mahumane,
and a comparison of
them and the samples taken from the three 2016 rape complainants
would have proved a match (as they subsequently
did), and Mr Mahumane
would not have been released. The two complainants in the 2017 rapes
would have been spared their dreadful
ordeals.
[19]
I then requested that Warrant Officer Blose be recalled. He testified
that after the arrest of Mr Mahumane on the
19
th
October
2016, Mr Mahumane had been remanded in custody from time to time. No
bail was granted, and Mr Mahumane eventually abandoned
his
application for bail. Buccal samples were taken by Cst Mgobhozi on
the 6
th
February 2017. During the times of the various
remands Warrant Officer Naidoo was the Investigating Officer of three
cases against
Mr Mahumane, and Warrant Officer Blose was handling Ms
M[....]’s matter. Both the investigating officers were aware of
each
other’s cases. On the 2
nd
May 2017 Warrant
Officer Blose was notified that the pre-trial hearing would be held
at the Stanger Magistrates’ Court on
the 23
rd
May,
2017. He was required to present both himself and the complainants to
the prosecutor, for him or her to evaluate the merits
of the matter.
[20]
Despite being aware of the aforegoing, Warrant Officer Blose did not
appear at court himself, nor did he ensure
that the complainants were
present. Because of their non-appearance the learned magistrate
presiding refused a further remand,
and provisionally withdrew the
cases against Mr Mahumane, who was released. Warrant Officer Blose
expressed amazement that the
other three cases were not dealt with.
[21]
The excuse proffered by Warrant Officer Blose was that he had no
transport to fetch the complainant, or to take himself
to the Stanger
Magistrates’ Court. He related that he and Warrant Officer
Naidoo had been involved in a motor collision during
April 2017. In
May, 2017 she was still booked-off sick, but he was not. He had told
Captain ZV Mchunu of his transport problems
when Captain Mchunu had
brought him the docket on the 3
rd
May 2017. Warrant Officer Blose was based at Umhlali, but his
accounting station was Kwa Dakuza. He said that each unit was
allocated
motor vehicles and there were three vehicles between
fourteen officers. When he asked Captain Mchunu what he must do, he
was told
to sort it out. It was clear that Warrant Officer Blose made
no effort whatsoever to sort out the transport problems, not even
discussing it with his fellow officers. He then stated that there
were four or five vehicles, and that the Kwa Dakuza cluster had
ten
police stations.
[22]
Warrant Officer Blose miserably failed to fulfil his duties to the
complainants and the public by his supine attitude to his
work and
his responsibilities. His crass disregard for his duty has occasioned
tragic consequences.
[23]
Mr
Mlotshwa
submitted that the rape charge concerning Ms
N[....]  should only be read with the provisions of
Part III
of
Schedule 2 of the
Criminal Law Amendment Act 1997
, and not
Part I
,
because the conduct of Mr Mahumane, at best for the State,
constituted one continuous act of rape, and not two separate acts of

rape. He sought support for this in the matter of S v Tladi
2013 (2)
SACR 287
(SCA), where the Court held that where there was evidence of
two acts of rape closely connected in time with no reason to
distinguish
the acts to show two different intents, the two acts of
rape should be considered as one. We have listened again in open
court
to the tape of the evidence of Ms N[....] . She stated that Mr
Mahumane raped her until he ejaculated, and then ‘started again

for a second time. When he started the second round, he took his time
until he ejaculated’. Ms
Dube
conceded (correctly in our
view) that there is little in this evidence to suggest a clear break
between the two acts of rape, save
for the fact that Mr Mahumane
ejaculated. There is even no evidence that he withdrew from Ms
N[....]  after ejaculating. Support
for the proposition that the
ejaculation of the rapist is, standing alone, insufficient to
conclude that two acts of rape had taken
place, is to be found in S v
Mavundla
2012 (1) SACR 548
(GNP).
[24]
Mr Mahumane has already been convicted on count one. Ms
Dube
(correctly in my view) conceded that there was no basis for a
conviction on count two, and count twelve fell to be reduced to the

competent verdict of theft. Taking into account the aforegoing, Mr
Mahumane is guilty of the following offences:
(a)
Count three – the rape of Ms N[….] M[....] M[....], as
charged, and read with
Part III
of Schedule 2 to the Criminal Law
Amendment Act 1997.
(b)
Count four – the robbery of Ms N[....] M[....] M[....]– a
Nokia cell phone worth R 1200.00.
(c)
Count five – the attempted rape of K[....] N[….]
M[....], as charged.
(d)
Count six – the robbery of Ms K[….] N[….] M[....]
– a cell phone and R20.00.
(e)
Count seven – the rape of Ms S[....] M[....] as charged, and
read with Part III of Schedule
2 to the Criminal Law Amendment Act,
1997.
(f)
Count eight – the robbery of Ms S[....] M[....] – a Nokia
cell phone worth R500.00.
(g)
Count nine – the rape of S[....] H[....]as charged, and read
with Part III of Schedule 2 to the
Criminal Law Amendment Act, 1997.
(h)
Count ten – the theft of a tablet/cell phone and cash of
R100.00.
(i)
Count eleven – the rape of N[....]  N[....] , as charged,
and read with Part III of
Schedule 2 of the Criminal Law Amendment
Act, 1997.
(j)
Count twelve – the theft of a Samsung cell phone and R500.00.
(k)
Count thirteen – the rape of Ms N[....] N[....] M[....], as
charged, and read with Part I of Schedule
2 of the Criminal law
Amendment Act, 1997 – three separate acts of rape.
(l)
Count fourteen – the robbery with aggravating circumstances of
Ms N[....] N[....] M[....]
– a Samsung J2 cell phone and
R80.00.  The aggravating circumstances was the threatened use of
a broken bottle.
Mr Mahumane is found
not guilty and discharged on count two.
Lopes
J
Date
of judgment:
10
th
December, 2019.
Dates
of hearing:
11, 12, 13, 14, 15, and 18
th
November, 2019, and the 4, 9
and 10
th
December, 2019.
For
the State:
Ms Dube.
For
Mr Mahumane:        Mr Mlotshwa,
instructed by Legal Aid South Africa.

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