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[2019] ZAKZDHC 36
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S v Chonco (CCD35/19) [2019] ZAKZDHC 36 (11 December 2019)
In
the High Court of South Africa
KwaZulu-Natal
Local Division, Durban
Case
No. CCD35/19
In
the matter between:
The
State
and
Simiso
Sibusiso
Chonco
Accused
Judgment
Lopes
J
[1]
The
accused in this matter, Simiso Sibusiso Chonco was charged with three
counts:
(a)
Rape,
in that upon or about the 9
th
December, 2018 and at or near the Lindelani Cemetary in Ntuzuma he
vaginally and anally raped Sinethemba Ngubo.
(b)
Murder,
in that on the same date and at the same place he wrongfully and
intentionally killed Sinethemba Ngubo in circumstances
where the
murder was planned or premeditated and that her death was caused by
Mr Chonco in committing or after having committed
rape and robbery
with aggravating circumstances.
(c)
Robbery
with aggravating circumstances, in that in or about the same day and
place he used force and violence to induce Ms Ngubo
to submit to his
taking of a motor vehicle, a Kia picanto bearing registration mark
NJ4665, together with other personal belongings
of Ms Ngubo.
[2]
Mr
Chonco pleaded not guilty to the count of rape, guilty to what he
described as the unintentional murder of Ms Ngubo, and theft
of her
motor vehicle. Mr
Mlotshwa
,
who appeared for Mr Chonco recorded that the plea on count one was in
accordance with his instructions, but that the pleas on
counts two
and three were not. Mr Chonco intervened at that stage to say that he
intended pleading guilty to both counts two and
three.
[3]
Thereafter,
and in terms of
s 112(2)
of the
Criminal Procedure Act, 1977
, Mr
Mlotshwa
submitted a statement made by Mr Chonco setting out the basis upon
which he pleaded guilty to counts two and three. Ms
Dube
,
who appeared for the State, recorded that the State did not accept
the factual matrix set out in the
s 112
statement. Accordingly, in
terms of
s 113
of the Act, I entered a plea of not guilty on behalf
of Mr Chonco for counts two and three.
[4]
Ms
Dube
then applied to have the
s 112
(2) statement admitted in terms of
s
220
of the Act. Mr
Mlotshwa
confirmed that the defence had no objection to such an order. This
was confirmed by Mr Chonco himself. I accordingly made an order
in
terms of
s 220
that the
s 112
(2) statement was to be recorded as
admissions of Mr Chonco.
[5]
The
State witnesses then testified, the first of which was Ms Nondumiso
Nzama, whose evidence may be summarised as follows:
(a)
By
the 9
th
December 2018 she had been in a six-year relationship with Mr Chonco,
who was the father of her minor child.
(b)
On
that night she and Mr Chonco were in a room at his home when Ms Ngubo
arrived and knocked at the door. They kept quiet
and did not
respond, but Ms Ngubo continued knocking and eventually kicked-in a
window.
(c)
At
that stage Mr Chonco got up, opened the door, and chased after Ms
Ngubo. He returned with her, and entered the room with
her.
At that stage Mr Chonco got dressed and left again with Ms Ngubo,
telling Ms Nzama that he would be back.
(d)
Mr
Chonco and Ms Ngubo walked out of the yard and stood on the road.
Ms Nzama, who was by then standing outside the room holding
her baby,
could see them both. She could see they were quarrelling, but
could not hear what they were saying. She walked
back into the
room because the weather was inclement, and she went out again after
putting a jacket on her child. Mr Chonco and
Ms Ngubo were no longer
there.
(e)
She
then went back into the room and phoned Mr Chonco who answered, spoke
quickly, and said he would be back soon. He then hung
up.
(f)
As
Ms Nzama was afraid, she took her child and repaired to the main
house on the property. Twenty minutes later she again
called Mr
Chonco and he said that he was on his way back. Some 20 minutes
later he arrived and called her. They went back
into the outside room
where he asked her for water to wash his hands. She asked where
he had been, and he said that he had
been with Ms Ngubo and he had
killed her.
(g)
Ms
Nzama did not believe him because she did not think he was capable of
doing such a thing. He offered to show her that he had
done so, and
she agreed to go with him, and they travelled for a short distance in
Ms Ngubo’s motor vehicle, Mr Chonco having
returned with the
car keys to that vehicle when he returned.
(h)
They
drove to some nearby houses where Mr Chonco showed Ms Nzama the body
of Ms Ngubo. She was not wearing anything on the
lower half of
her body. Ms Nzama was afraid and requested that they leave
immediately. When they returned to the room
Ms Nzama collected
her belongings and those of her child, and they were taken back to
her home in Ms Ngubo’s motor vehicle.
(i)
Ms
Nzama then retired for the evening, but was in a state of shock. She
was later phoned by Mr Chonco who said he wanted to dispose
of Ms
Ngubo’s body. He later phoned Ms Nzama again and confirmed that
he had done so, and had left the body of Ms Ngubo at
the cemetery
near the Ntapo School.
(j)
The
next morning Mr Chonco phoned her and said that he was at Folweni
trying to find someone who could remove the tracker from the
motor
vehicle, so that he could sell it. Later on that day he again
phoned Ms Nzama and said that he had been unable to find
someone to
remove the tracker, and he had been unable to sell the motor vehicle.
He arrived back at the home of Ms Nzama between
6:00 and 7:00pm that
evening.
(k)
Mr
Chonco then asked Ms Nzama whether she knew anyone who could remove
the tracker and buy the motor vehicle. She said she
did not,
but because she was afraid of him she communicated with Ms Menzi
Ndlovu, who is also known as Panstula, via Whatsapp.
She thought that
Ms Ndlovu might be of assistance.
(l)
Ms
Ndlovu said that she knew someone who could assist her and Ms Nzama
and Mr Chonco then travelled in Ms Ngubo’s car to see
her.
(m)
They
met Ms Ndlovu at Ntuzuma, and she then travelled with them to attempt
to see a person who could deal with the tracker and who
was known to
Ms Ndlovu. She was unable to get hold of that person
telephonically, and they proceeded to what Ms Ndlovu described
as his
parental home. Eventually they reached the parents’ home
of the person who was supposed to assist them, one
Ngosh. He
was not at his parent’s home and Ms Ndlovu spoke to his
brother, Jojo, who came out of the house and sat
in the car and spoke
to the other three.
(n)
At
first Mr Chonco would not disclose to Jojo why he wished to sell the
motor vehicle. He then said he had had a quarrel with
the owner
of the motor vehicle and killed her. In response to further
questioning by Jojo, Mr Chonco stated that he had throttled
Ms Ngubo
until she died. Mr Chonco said that he wished to dispose of the
body of Ms Ngubo but Jojo was adamant that Mr Chonco
must hand
himself over to the South African Police Services.
(o)
At
some stage Ms Ndlovu was able to get hold of Ngosh and they bid Jojo
goodbye and left to see Ngosh. They eventually met
him, and at
approximately midnight at the graveyard, at or next to the Ntapo
School, the tracker was removed.
(p)
At
that stage Ms Nzama confirmed that she had asked Mr Chonco why Ms
Ngubo had no clothes on the lower half of her body. She
said
that he had told her that Ms Ngubo’s clothes had come off when
they were fighting.
(q)
During
cross-examination, Ms Nzama confirmed that she had not seen any
physical exchange between Mr Chonco and Ms Ngubo, and had
not been
able to hear what they were saying, but that she was aware that they
were arguing. She did not see any injuries on Mr
Chonco when he
returned to her after killing Ms Ngubo. She confirmed that Ms
Ngubo had entered the room whilst Mr Chonco
was getting dressed, but
she had not said anything. She accepted that Ms Ngubo would
have been angered by her presence in
the room. She also
confirmed that when Ms Ngubo had kicked in the window, Mr Chonco had
chased after her.
(r)
Ms
Nzama disputed the suggestion put to her by Mr
Mlotshwa
that it was Jojo’s idea to put the body of Ms Ngubo inside her
house and then set it alight. This was suggested as
a plan to
cover-up the murder. Ms Nzama said that Jojo had not said that, and,
instead, had insisted that Mr Chonco report the
matter and surrender
to the police. When it was suggested to her that she had differed
from what she had said in her written statement,
she conceded that it
was possible, but said she had been in shock at that time.
(s)
In
further cross-examination by Mr
Mlotshwa
,
Ms Nzama stated that she had also been able to see the top which Ms
Ngubo had been wearing when she first saw her. This
was at the
stage when Ms Nzama had witnessed her body lying near Mr Chonco’s
home.
[9]
The second witness for the State was Xolani Ngema, also known as
Jojo:
(a)
He confirmed that he had been at home in E Section, Ntuzuma between
10:00 and 11:00pm on the 10
th
December 2018. Ms Ndlovu arrived at their doorstep looking for
his brother Ngosh. He had enquired as to why Ms Ndlovu
wanted
to speak to Ngosh and she said that they were selling a car. Mr Ngema
was interested because he was looking a car to purchase.
He then went
outside and got into a Kia picanto in which were sitting Mr Chonco
and Ms Nzama. Ms Ndlovu had climbed into the backseat
as well.
(b)
He tried to discuss the purchase price, but the driver, Mr Chonco,
was evasive. Mr Ngema realised
that there was a problem and
asked Mr Chonco to be honest with him and tell him what was going
on. Eventually Mr Chonco admitted
that the owner of the motor
vehicle was his girlfriend and he had killed her. (Mr Chonco
previously told Mr Ngema that the
vehicle belonged to someone who had
died in Johannesburg and he had returned with the car and wished to
sell it).
(c)
Mr Ngema was extremely shocked by this revelation and afraid that he
could be implicated in the murder, because
he was sitting in the
deceased person’s car. Mr Chonco had told Mr Ngema that
he had left the body of Ms Ngubo at a
place where no one would ever
find her. This alarmed Mr Ngema who then tried to get more
information in order to ensure that
someone would in fact find the
body of Ms Ngubo.
(d)
He asked why they wanted to use the services of his brother Ngosh,
and Mr Chonco said he wanted the
tracker in the motor vehicle
removed. When Mr Chonco explained that he had travelled to
Folweni in the car and had gone to
petrol stations, Mr Ngema
explained to Mr Chonco that a tracker would have already recorded
where he had been, and that that it
is likely that surveillance
cameras at the petrol stations would have done the same. Mr
Chonco then made a suggestion that
he put the body of Ms Ngubo back
into her house and make it look like a robbery, and leave the car in
her yard. There was
also a suggestion by Mr Chonco that they
could set the house alight.
(e)
Mr Ngema listened to what Mr Chonco said and raised the various
problems which Mr Chonco would experience
if he tried to do what he
had suggested. Mr Ngema then suggested that the best avenue was
for Mr Chonco to surrender himself
to the South African Police
authorities. Mr Ngema then became afraid that he would be
linked to the stolen car and began
to erase any possible fingerprints
he may have left in the car using the long sleeve of a t-shirt he was
wearing.
(f)
He then alighted from the car, which was driven away.
(g)
Mr Ngema then went back to his house but was unable to fall asleep.
Eventually he phoned a friend, one
Sizwe Manzini who operated a
security company in Ntuzuma, and told him what had transpired. Mr
Manzini came to fetch him, and at
about 06:00am Mr Ngema phoned his
brother Ngosh and established where Mr Chonco had been sleeping. They
proceeded to that place
and Mr Chonco was arrested by the security
guards. Mr Chonco had then pointed out the place where he had
left the body of
Ms Ngubo. Mr Manzini then phoned the South African
Police Services who eventually arrived with numerous other personnel.
[10]
After the above witnesses had testified Mr
Mlotshwa
indicated that he needed to take certain instructions
from Mr Chonco, because Ms Dube had handed to him the results of DNA
tests
performed by the State. These related to count one (rape). Mr
Mlotshwa
then sought leave to withdraw as the legal
representative for Mr Chonco. He told the court that Mr Chonco had
lost confidence in
his ability to represent him. Mr Chonco also
insisted that there had been a conspiracy between the police
officials who had taken
the buccal samples from him, and the
officials who had prepared the laboratory results. Mr Chonco stated
that he wished to brief
his own DNA expert to testify on his behalf.
Mr Chonco stated that he and his family had sufficient resources to
brief both a private
legal representative and a DNA expert.
[11]
Mr Chonco then indicated to the court that he had in fact briefed his
own private legal representative
who would have appeared on the 2
nd
December 2019, when the trial was scheduled to be heard. However, as
the trial had been brought forward, Mr Chonco had used the
legal-aid
services of Mr
Mlotshwa
. Mr
Mlotshwa
recorded
that although he had, on the instructions of Mr Chonco, prepared the
s 112
(2) statement after lengthy consultations, Mr Chonco had not
mentioned the existence of a private legal practitioner who was to
appear for him.
[12]
I accordingly granted an order adjourning the trial to the 2
nd
December 2019, and directed Mr Chonco to have his private legal
representative present on that day, together with the name of his
DNA
expert, and a time-line for the preparation of any DNA tests or
reports. As there appeared some doubt about the ability of
Mr Chonco
to finance these aspects, I directed that the Investigating Officer
contact the family of Mr Chonco in order to apprise
them of Mr
Chonco’s predicament, and to ascertain whether they were
willing and able to assist him. Mr Chonco undertook to
provide the
names and addresses of his family members to the Investigating
Officer.
[13]
On the 2
nd
December 2019 Ms
Dube
informed the Court
that the Investigating Officer had visited the paternal uncle of Mr
Chonco, Mr Thulani Chonco. He was unwilling
and unable to assist Mr
Chonco. Ms
Dube
confirmed that she had spoken to Thulani
Chonco telephonically, and he had confirmed what the Investigating
Officer had told me.
The Investigating Officer also stated that
he had spoken to other members of Mr Chonco’s family (not names
given to
him by Mr Chonco). They apparently indicated that Mr
Chonco’s father, who was on military deployment in the
Democratic Republic
of Congo, had stated that the family was not to
assist Mr Chonco.
[14]
Mr Chonco told the Court that the Investigating Officer had told his
family members not to assist him
because he would not be acquitted.
He then clarified that this had happened when he still imprisoned at
the police station. Mr
Chonco also said that his uncle had visited
him in Westville Prison on the 27
th
November 2019, and had
said that he would visit Mr Chonco ‘when he gets time’.
Mr Chonco also conceded that he would
no longer be able to employ his
own attorney or DNA expert. The trial continued the next day
with Mr
Mbili
who was appointed by Legal Aid South Africa
(Judicare), representing Mr Chonco.
[15]
The next State witness was Warrant Officer Motjile Oduetse Chriswell
Makapan, who told the Court that:
(a) He
is a forensic analyst in the South African Police Forensic Science
Laboratory in Pretoria. He set out his qualifications
and training,
including twelve years’ in the Biological Health Sciences.
(b) He
had analysed the DNA results from tests conducted by technicians
working under him in the laboratory. He explained
that the results of
all the samples taken from Ms Ngubo and submitted for analyses had
perfectly matched the two separate buccal
‘Reference Samples’
taken from Mr Chonco. He stated that no two persons would have the
same results, and that Mr Chonco’s
DNA had been found in
samples taken from both the vagina and anus of Ms Ngubo.
[17]
In cross-examination by Mr
Mbili
it was put to the witness
that Mr Chonco had had consensual sexual intercourse with Ms Ngubo at
approximately 3.00pm on the day
of her murder. Warrant Officer
Makapan confirmed that he had not been involved in the investigation
of the matter, and, prior to
appearing in Court in this matter, had
not met the Investigating Officer.
[18]
Doctor Lesego Ipeleng Tsikwe testified that:
(a)
She was a registered medical practitioner, employed by the State as a
forensic pathologist, and had been working
in the Tugela District as
Senior Registrar in the Nkosi Albert Luthuli Hospital mortuary in
December 2018.
(b)
She had conducted a post-mortem examination report on the body of Ms
Ngubo. Her principal findings were:
(i)
The cause of Ms Ngubo’s death was strangulation, with blunt
force trauma and constriction
of the upper neck structures.
(ii)
Ms Ngubo sustained numerous, significant and extensive injuries to
her genitalia and perianal
areas, but they were not fatal.
(c) She
had taken vaginal and anal swabs which were properly sealed in the
Sexual Assault Kits with which she had been
provided.
(d) She found
that the internal injuries which Ms Ngubo sustained in her vaginal
and anal areas were the result of the use
of tremendous force. This
was most unlikely to have occurred pursuant to consensual
intercourse. She testified in detail why this
was so. The injuries
were so severe that they would not even have been sustained in what
she referred to as ‘rough, but consensual
sex’, or under
intoxication. Significantly, she doubted whether Ms Ngubo would have
been able to walk unaided after the intercourse,
describing the idea
as ‘fantastical’. Driving a motor vehicle and kicking-in
windows would have been ‘unheard
of in my profession’
after the assault. She described the probability that the
intercourse was not consensual as ‘99%’.
(e) She
also testified to the existence of bite marks to the inner cheeks and
lips of Ms Ngubo, which were consistent
with someone clamping a hand
over her mouth, and a considerable struggle. This was also evidenced
by scratch marks on her face.
Dr Tsikwe discounted entirely the
suggestion put to her in cross-examination the Ms Ngubo had undergone
an asthmatic attack, and
without her medication, had passed away. She
stated that this was contradicted by the fact that Ms Ngubo’s
hyoid bone had
been fractured, she had deep and extensive bruising of
her neck structures, and she showed no signs of chronic asthma. In
addition,
asthma was not indicated because there were no crystals in
her airways, and no bronchial constriction.
[19]
The next witness was Xoliswa Fortunate Ndlovu. She confirmed that on
the 10
th
December, 2018, Ms Nzama had contacted her and
related to her a series of events. She was thereafter fetched by Ms
Nzama and Mr
Chonco (who was then unknown to her), and they drove to
Ntuzuma to find a mechanic who could remove the tracker from the
white
Pia picanto. Eventually they had reached the home of Jojo, to
whom Mr Chonco related the events of the previous evening. She
confirmed
the discussion which had taken place in the motor vehicle
between Mr Chonco and Jojo as had been testified to by Ms Nzama. She
also explained how the tracker had been found and removed at the
Lindelani Cemetery. At the graveyard Mr Chonco received a phone
call
when he told the caller where they were. The tracker was destroyed,
and Ms Nzama, Ms Ndlovu and two males left on foot. As
they did so
the security services and the police arrived.
[20]
Ms Ndlovu emphatically denied the suggestion in cross-examination
that Mr Chonco merely wished to speak
to Jojo and obtain advice from
him regarding what he should do. She reiterated that Mr Chonco had
wanted to have the tracker removed
from the vehicle so that he could
sell the car. She also reacted strongly to the suggestion that she
had been primed as to what
to say by the Investigating Officer.
[21]
Ms Nomalungelo Sanelesiwe Pearl Ngubo then
testified that she was the sister of Ms Ngubo. She had known
that her
sister had been in a relationship with Mr Chonco. She also knew that
he was aware that her sister was pregnant, because
he had told her so
himself. She had been fetched from her home by members of the South
African Police when they were searching
for Ms Ngubo. They eventually
went to the Lindelani Cemetery where she had identified the body of
her sister. It was obvious to
her that her sister was injured and the
lower half of her body was naked.
[22]
Sergeant Emmanuel Nkosinathi Madonsela told the Court
that he proceeded to the Lindelani Cemetery on the 11
th
December 2018 pursuant to a report he had received. There he was
shown the body of Ms Ngubo, and it was identified to him as such
by
her sister. He handed over the body to Dudu Nxumalo, the driver of
the Phoenix Mortuary van in which Ms Ngubo’s body was
removed.
He also confirmed the contents of a photograph album (Exhibit ‘C’)
which showed the body of Ms Ngubo, as well
as photographs of the
white Kia picanto.
[23]
Mr
Mbili
confirmed that the defence
had no issue with the removal of the body of Ms Ngubo until the
post-mortem examination report was completed.
Ms
Dube
then
closed the case for the State. The links in the DNA chain, are
by virtue of the admissions by Mr Chonco and the other
evidence not
necessary to deal with. The DNA results had been adduced
because of the initial denial of intercourse implied
in the plea and
s 112
statement, because no admissions of intercourse had been made
at that stage. Only at the stage of the DNA results being
forthing
was the consensual intercourse raised by the defence.
[24]
Mr Chonco then testified. He was a very, very poor
witness. He was completely unable to deal with the contradictions
between his
s 112
statement and what his legal representatives put to
the various witnesses, the presence of his DNA in the vaginal and
anal samples,
and the horrific injuries suffered by Ms Ngubo as
testified to by Dr Tsikwe. His was deliberately vague when he could
not answer
questions, and this Court could not safely rely on
anything he said unless it was confirmed by other witnesses. His
evidence is
a matter of record, and it would serve no purpose for me
to troll through his evidence highlighting every dishonest
contradiction
and gross improbability. Mr
Mbili
closed the
defence case at the end of Mr Chonco’s evidence.
[25]
The State witnesses all gave their evidence in a
forthright and honest manner. Such contradictions as occurred
between
their various versions were only as to be expected of people
testifying about events which occurred over time and during
a
continuous sequence. The State witnesses were not in any way
discredited in cross-examination – their evidence was left
unshaken. The evidence of Dr Tshikwe was detailed and demonstrated
clearly why the defence of consensual intercourse was a hopeless
attempt at deception.
[26]
There is no doubt that Ms Ngubo went to the home
of Mr Chonco determined to confront him. She did so in
a most
insistent manner, breaking two windows when he would not respond to
her. Her confrontational behaviour was almost certain
to create a
row. Clearly she and Mr Chonco walked away from the house in order to
be able to debate their problem in privacy, and
out of the earshot of
Ms Nzama. What followed, however, was tragic. It is difficult to know
which one of the two started the physical
confrontation. What is
clear is the brutal reaction of Mr Chonco which followed, both in
raping Ms Ngubo twice, and in strangling
her to death.
[27]
That Ms Ngubo was raped twice by Mr Chonco, admits
of no doubt because of the combined evidential weight
of:
(a) The DNA
evidence.
(b) The inability of
the defence of consensual intercourse to stand up to the scrutiny of
the post-mortem examination report, and
the evidence of Dr Tshikwe of
the extent to which the injuries sustained by Ms Ngubo would have
disabled her.
(c) The state in
which the body of Ms Ngubo was seen by Ms Nzama, and the state it was
in when recovered at the Lindelani Cemetery,
as confirmed in the
photographs.
(d) The clothing of
Ms Ngubo which was recovered at the place where she was murdered.
[28]
Ms
Dube
, correctly in my view, conceded
that the murder was not premeditated. She submitted that it does,
however, fall into the category
of a murder committed after raping
the victim – thus falling into the category of those included
in
Part I
of Schedule 2 to the
Criminal Law Amendment Act, 1997
.
[29]
Ms
Dube
also conceded, again correctly in
my view, that the robbery charge could not succeed, and Mr Chonco was
guilty, at best, of the
theft of Ms Ngubo’s Kia picanto, cell
phone and other belongings. There is no doubt that he intended to
sell the vehicle,
and to that end, had the tracker device removed
from the vehicle.
[30]
In all the circumstances, I make the following
order:
(a)
Mr Chonco is guilty of Count 1 – the rape of Ms Ngubo on two
occasions.
(b) Mr Chonco
is guilty of Count 2 - the murder of Ms Ngubo in terms of
Part I
of
Schedule 2, subparagraph (c) of the Criminal Law Amendment Act, 1997.
(c) Mr Chonco
is guilty of the competent verdict of theft on Count 3, in relation
to the Kia picanto motor vehicle belonging to
Ms Ngubo, and her two
cell phones.
Lopes,
J
Date
of judgment:
11
th
December 2019.
Dates of
hearing:
19
th
and 20
th
November, 2019, and the 2
nd
,
3
rd
, 4
th
,
5
th
, 6
th
and 11
th
December, 2019.
For
the State:
Ms Dube.
For Mr
Chonco:
Mr Mlotshwa instructed by Legal Aid, South
Africa, and Mr
Mbili, instructed by Judicare.