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[2019] ZAECMHC 39
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S v Dyosi (CC19/2017) [2019] ZAECMHC 39 (17 July 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
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE
NO. CC19/2017
In
the matter between:
THE
STATE
VS
HEADMAN
DYOSI
JUDGMENT
JOLWANA
J
Introduction
[1]
The accused stands arraigned on multiple counts being six counts of
rape, four counts of murder and one count of attempted murder.
These offences were committed over a period of about three years from
April 2012 to May 2015 at certain locations in Lady Frere.
All
the victims were women who were all raped and four of them were also
murdered. The other two were lucky not to have been
killed.
There were no eye witnesses to any of these crimes and the two
victims who were not killed could not identify the
person who
attacked and raped them.
[2]
The accused pleaded not guilty to all the charges and declined to
disclose the basis of his defence.
Summary
of substantial facts
[3]
The indictment also contained the following summary of substantial
facts:
“
1. On 7 April 2012
the complainant in count 1 and count 2 was raped and severely
assaulted by an unknown male.
2. On 7 December 2012 the
body of the deceased in Count 3 and Count 4 was foud lying on the
ground, hands also tied up and the deceased
was raped.
3. The deceased died of
“
HEAD INJURIES
”
4. On 21 July 2014 the
complainant in count 5 was near the Lady Frere Day Care Centre when
at about 19h00 an unknown male grabbed
the complainant from behind,
dragged her to a dark place and raped her.
5. On 15 May 2015 the
deceased in count 6 and 7 left her home never to return, the family
phoned and looked for the deceased but
to no avail, on 21 May 2015
the deceased’s body was found.
6. The deceased was raped
and died of “
HEAD INJURY
”
7. The accused was
arrested on 5 June 2015, as cell phone records linked him; the
accused was found also in possession of the deceased’s
cell
phone and is also linked with positive DNA results.
8. The deceased in Count
8 and 9 was raped and murdered cause of death, “
MANUAL
STRANGULATION AND HEAD INJURY
”. Accused is linked
with positive DNA results.
9. The deceased in count
10 and 11 was raped and murdered cause of death, “
HEAD
INJURY AND STAB NECK
”. Accused is linked with positive DNA
results.”
Case
for the state
[4]
The state called Ms A[...] N[…] F[…], the complainant
in counts 1 and 2 who resides at P[…] M[…]
l[…]
in Lady Frere. She stayed at home with her brother and her
child. On the 07 April 2012 she had knocked
off from a part
time job and returned home with some basic groceries. The
family’s electric stove had broken down and
she therefore used
a three legged pot to cook a meal for her family outside in a
fireplace. The sun had already set when
she made the fire and
her brother was in the house. At some point she called on her
brother to bring her a spoon. However,
he did not come out of
the house. She later noticed that there was someone next to her
whom she assumed was her brother.
When she looked at this
person she realized that it was not her brother. It was an
unknown man who had covered his head with
a hood. She did not
know this person.
[5]
He hit her on the face with a clenched fist and she fell down next to
the pot. She was hit again on the left cheek with
a sharp
object and she bled. She struggled with this person who
continued hitting her and dragged her away from the fireplace.
He tied her hands with some shoemaker strings. He pressed her
down with his knee and forcibly pulled off her panty.
He
unbelted himself and lowered down his trousers and raped her.
When he finished raping her he pulled up his trousers and
went away.
With great difficulty she slowly walked into the house where she
found her brother sitting on a sofa next to a
radio. She was
thereafter assisted by her brother to lie down on a sponge on the
floor. She slept and police came the
following morning and she
told them what happened. She was taken to Glen Grey Hospital in
an ambulance where she received
treatment. She was discharged
from hospital about three weeks later.
[6]
Constable Yamkela Maliwa testified that in the morning on 08 April
2012 her commander told her that there was a rape victim
who had been
admitted at hospital. She went to see the complainant A[…]
F[…] at Glen Grey hospital to open
a rape case. She had
taken with her a rape kit which she handed it to Dr Mlindwa who
examined and took DNA samples from the
complainant. She
thereafter received the sealed rape kit from the said doctor. She
took it back to the police station
and made SAP13 entries.
[7]
Dr Bulelani Christopher Mlindwa, testified that on 8 April 2012 he
attended to and examined Ms AF who had been beaten up and
sexually
assaulted. She had sustained an occipital fracture with ragged
laceration. This means that the back of her
head was
fractured. Her skull was cracked and had a penetrating injury.
She had a 4cm laceration on her forehead.
She also had
bilateral and orbital haematoma with bilateral subconjunctival
haemorrhage. He described this to mean that she
had blood
outside the blood vessels, meaning the blood vessels had raptured and
the blood oozed inside the skin. She also
had a red eye.
There was also a 3cm laceration on the chin. He testified that
a skull is an extremely hard bone.
That it was fractured meant
that maximum force was use with a sharp or blunt object.
[8]
The vaginal examination revealed a semen like discharge at cervical
level with blood stains which was a sign of forceful penetration.
The perineum also had a semen like discharge. He collected
swabs with a sexual assault kit which he had received from a police
officer. After taking all the swabs and sealing them
individually, he placed all of them in an evidence collection
kit bag
which was then sealed and given to the police officer, constable
Maliwa.
[9]
The complainant in count 5, AOT testified that she is a resident of
K[..] l[..] in Lady Frere. On 21 July 2014 at about
19:00 she
walked from work place on her way to see her boyfriend at Veza
location in Lady Frere. Her boyfriend was going
to meet her
halfway. When she had just spoken on the phone with her
boyfriend she heard some footsteps after which she was
grabbed with
her clothes. It was dark but the streetlights were on.
Her assailant was wearing a balaclava with only
his eyes being
visible. He demanded her phone and money and pulled her to a
shrubby area away from the road. He forced
her to undress and
assaulted her within a stick. He also undressed himself
and raped her. When he finished raping
her both vaginally and
anally he told her to go away.
[10]
She proceeded to her boyfriend’s homestead where she reported
the incident. An ambulance was called and she was
taken to
Queenstown Private Hospital. She was later taken to Thembeni
Care Crisis Centre where swabs were taken from her.
[11]
Nokufika Eunice Qoba testified that she is a professional nurse
trained in general nursing, community, physical and midwifery
and had
specialized in forensic nursing. On 21 July 2014 she was on
duty at Komani Thuthuzela Care Crisis Centre where she
completed a
J88 pertaining to AT after examining her. She concluded that
there were injuries that were consistent with sexual
assault.
On an anal examination she concluded that there was forceful anal
penetration. She collected DNA specimens
which she placed in a
adult sexual assault evidence collection kit, sealed it and gave it
to a police officer who had brought the
kit.
[12]
Mfusi Magobotiti testified that he resides at Ngcuka locality in Lady
Frere. He is the paternal uncle of N[…]
Q[…], the
deceased in counts 6 and 7. He had last seen the deceased on 15
May 2015 saying she was going to attend
a night vigil. The
deceased had a little baby whom she left with her wheelchair bound
elder sister. The following morning
she had not returned home
and her phone was off. When he called her again on Monday the
phone was answered by a male person.
He assumed that it was her
boyfriend and told him that they must fetch the baby. When he
phoned again later that day the
phone was again picked up but the
person who answered the phone did not talk.
[13]
The following Thursday he received a call informing him that a body
had been found near Mthwakazi River and that he should
come and
identity the body. He proceeded there and found police
officers at the crime scene. He identified
the deceased
as N[…] Q[…]. The skin from her forehead and face
had been peeled off. Her lower body up
to the waist was covered
with soil. Her breasts were cut. In short her body had
been mutilated.
[14]
Nande Raphael Keswa, testified that on 12 April 2014 he had been with
B[…] V[...], the deceased in count 8. They
were
neighbours and they met in town when he was on the way to Spar
Supermarket. He later left for his rural home at Zingqolweni
with his other friend Zingiswa leaving the deceased at Tullz Barber
shop. The following day he was informed by his mother
that she
had been found dead.
[15]
Thandiswa Alicia Mpatheni, a professional nurse at Thembeni Care
Crisis Centre testified that she holds a diploma in nursing,
midwifery, psychiatry and community. She also did forensic
training. On 05 June 2015 she was at work when Mr Nzube,
a
police officer arrived with the accused. Mr Nzube gave her a
crime kit and asked her to take buccal samples from the accused.
After introducing herself to the accused she told him that she was
going to take saliva samples from him. She asked him if
he
agreed to the taking of the saliva samples and he agreed.
[16]
She took the crime kit and showed him that it was sealed. She
took three samples from the accused. She placed the
sealed
samples in the evidence collection kit which she also sealed,
completed all the necessary details and asked the accused
to sign for
the samples. She handed all the DNA collection kits to Mr
Nzube.
[17]
Dr Fuzani testified that he worked at Queenstown Forensic
Laboratory. He was at work on the 15 April 2014 and conducted
a
post-mortem examination and compiled a report in respect of Buyelwa
Veyi. His chief post-mortem findings were:
1. Degloving Injury of
Sculp frontally and occipital area with heamatoma
2. Cerebral Oedema
3. Petechia in heart,
lungs, trachea and thymus
4. Strangulation abrasion
around neck above thyroid cartilage
5. Bruising of introitus
at 6 o’clock position.
[18]
He then concluded that the cause of death was manual strangulation
and head injury.
[19]
He also took some specimens which he handed over to the investigating
officers.
[20]
He also testified about the post mortem examination and his report
thereon in respect of N[…] S[…] J[…],
the
deceased in counts 10 and 11 which he conducted on the 16 January
2015. Her body was recovered at Phumla Mqeshi locality
in Lady
Frere. His chief post mortem findings were:
1. Extensive scalp
haematoma with massive subdural and subarachnoid haemorrhage.
2. Multiple stab wounds
in neck severing major vessels and penetrating chest.
3. Bilateral heamothorax.
4. Subendocardial
heamorrhages left ventricle
5. All organs pale.
[21]
He then concluded that the cause of death was head injury and stab
neck. He also took specimens for DNA analysis which
he sealed
and gave to constable Qwanya.
[22]
Luvuyo Nzube testified that he is a member of the SAPS and that at
one stage he was the investigating officer of in respect
of the death
of N[…] Q[…]. Her body was found near a river at
Ngcuka locality in Lady Frere. As part
of his investigation he
attended a post mortem examination conducted by Dr Mbotya in
Queenstown. He received collection kits
from Dr Mbotya and
entered them in their exhibit register SAP13 at Lady Frere police
station.
[23]
He also consulted with the father of the deceased who told him that
he had bought a cellphone for the deceased before her death.
He
gave him a box for the phone which had the details of the phone.
He then contacted their local intelligence unit in Queenstown
to
establish if the phone was being used. He received a report
from them which showed that the phone was being used as well
as a
list of numbers that were being called by that phone.
[24]
The analysis of the said phone records revealed that there was one
number that was being called regularly using that phone.
The
lady who was being called with N[…]’s cell phone told
him that the person who had been calling her was the accused.
Further investigations revealed that the accused was working at a
certain home in Lady Frere. They proceeded to that home and found
him
there. They searched him and found the cell phone in question
in his possession. He discovered that the IMEI number
of the
cell phone matched the one written in the box that he got from the
deceased’s father.
[25]
The accused told them that he bought that cell phone from one Bhabhu
who had a shop in town. They proceeded to Bhabhu’s
shop
with the accused. Bhabhu told them that he did not sell any cell
phones and only repaired cell phones and that the accused
was lying
in saying he bought a cell phone from him. It became clear to
him that the accused was lying in saying he bought
the cell phone
from Bhabhu. He then concluded that the accused could be a
suspect in the murder of N[…].
[26]
He then arrested the accused for the murder of N[…] Q[…].
He took the accused to Thembeni Care Crisis Centre
in Queenstown for
DNA samples to be taken from him. The reason he asked for three
DNA samples to be taken was that there
were also other undetected
cases similar to the one of N[…] Q[…]. He was
with sergeant Prusent and sergeant
Qwanya when the samples were
taken.
[27]
The forensic nurse who took the buccal samples sealed them and gave
the sealed kits to him. He and his colleagues played
no role in
sealing the kits and did not assist the nurse in doing so. He
took the kits and entered them in the SAP13/169
register at Lady
Frere police station.
[28]
Under cross examination he testified that they were shown phones for
repairs by Bhabhu and that there were no cell phones that
were for
sale in the shop. He confirmed that Bhabhu told them that he
did not sell any cell phones, there was no display
for phones for
sale in Bhabhu’s shop and he said he was only repairing the
cell phones.
[29]
He denied that he or any of his two other colleagues assisted the
nurse in the process of taking buccal samples. The
nurse did
everything on her own and after she had finished she handed the
buccal samples to them having sealed them herself.
He took the
sealed buccal samples to Lady Frere Police Station where he entered
them in the SAP13 register.
[30]
The state called Thoko Qaliwe who testified that he is the father of
the deceased N[…] Q[…]. He bought
a cell phone
from Jet Stores for his daughter N[…]. He gave the box
and proof of purchase of the said cell phone to
sergeant Nzube for
further investigations.
[31]
The state called Nosipho Ncanywa–Mvula who testified that she
stayed at Makome Street in Lady Frere. She knew the
accused as
he worked as a gardener in the premises in which she stayed as a
tenant. She met with Mr Nzube on a Friday morning.
He was
asked by Mr Nzube about a cell phone number he had on a certain cell
phone. Because she did not know if she knew that
number, Mr
Nzube suggested to her that she must dial that number from her
phone. She dialled the number it showed up on her
cell phone as
a number that belonged to the accused. Nzube asked him where he
could locate the accused and she told him the
address which is Makoma
Street in Lady Frere.
[32]
Muhammed Shafique testified that he works in town in Lady Frere.
He is generally called Bhabhu. He did not know
the accused.
He did not sell cell phones and he only repaired them. Under
cross examination he confirmed that police
did come to his shop with
the accused and he told them that he did not sell any cell phones.
He testified that he never put
any phone on display for sale in his
display counter since the time he opened the shop eight years ago
until now. He denied
that he sold a phone to the accused for
R300.00 as he did not sell any phones.
[33]
The state called sergeant Sizwe Gaika, a member of the SAPS stationed
at the provincial office of the Family Violence Child
Protection and
Sexual Offences (the FCS). He testified that he is a serial and
electronic crime investigator which is under
the FCS unit. On
25 May 2016 he was on duty and was present when buccal samples were
taken from the accused by sergeant Dlomo
using a DNA reference sample
collection kit.
[34]
The state called sergeant Sonwabile Dlomo a member of the SAPS
stationed at King Williamstown FCS. He testified that
at some
stage he was the investigating officer in respect of the cases before
this court. He was a member of a task team
that dealt with
serial rapes and killings. He received a DNA lead from their
DNA data base in Pretoria in terms of which
some cases were linked to
the case of N[...] Q[…]. Five cases were linked with
this case making a total of six cases
with the DNA profile of the
accused. When he received the link he collected all the
relevant dockets and visited the accused
who was in prison at the
time. The other five cases were unsolved cases when the link
was made and they had no suspect for
them at that stage.
[35]
The accused was in prison in respect of the case of N[…]
Q[…]. He asked the accused for a confirmation
DNA
sample. The accused refused to give him a confirmation sample
and became rude, stood up and left him sitting there.
He then
decided to requisition the accused to be brought to court.
However, it turned out that he was due to appear in court
in respect
of the case of N[…] Q[…]. He approached the
accused on the date of his court appearance and asked
him for a
buccal confirmation sample and on this occasion he agreed.
[36]
He took buccal samples from the accused using a sealed kit which he
opened in front of the accused and sealed them and placed
them in a
sealed bag. He then took the DNA sample reference collection
kit bag to Lady Frere police station and registered
it in the SAP13
register. He thereafter took the said kit bag with him to his
King Williamstown Office. He kept it
and the following day he
personally took the samples to a laboratory in Port Elizabeth.
[37]
When all of this was happening swabs from the victims and
complainants had already been taken and testing done in the other
five cases from Lady Frere. It is the arrest of the accused and
the taking of the sample from him that created a link with
the DNA
that had been found in the other five undetected cases. Having
submitted the samples he had taken from the accused
he waited for a
report of the DNA results from all the cases. He received the
said report and found that all the other cases
were linked with the
accused’s DNA. This resulted in the accused being charged
also in respect of the other unsolved
cases which had his DNA
profile.
[38]
The state called lieutenant colonel Sharlene Otto, a chief forensic
analyst based at the Forensic Science Laboratory in Plattekloof,
Cape
Town. Her qualifications and experience are fully detailed in
her report and are not in dispute. She testified
that on 28
August 2017 she received case files in respect of two Lady Frere
cases being that of N[…] S[…] J[…]
and N[…]
Q[…]. This followed an investigative hit led
report issued by the National Forensic DNA database
in Pretoria
linking four cases that had already been analysed and reported on.
The case of J[…] is peculiar in that
of the six cases it is
the only one in which the crime sample also had one allele which did
not belong to the accused. For
this reason it is to it that
specific focus will be given when I later analyse the evidence.
[39]
Colonel Otto testified that the National Forensics DNA database
worked independently on their database and looked at cases
that had a
link with one another. Such cases are then flagged and an
investigative hit led report is issued. This happens
for
instance when different cases which had been dealt with independently
and at different times reflected the same DNA profile.
[40]
She testified that at locus D19S433 there were three alleles being
13.2, 14:14.2 and 14:14.2. This means that it is a
mixture in
respect of vestibule swab DNA which is the case whenever there are
more than two alleles at a locus. This means
that at that locus
there is a DNA of another person other than the accused. The
mixture result was in respect of the DNA
obtained from the vaginal
swab of the victim. She went on to say that it may very well be
that 13.2 was from the victim herself
for the simple reason that the
vestibule swab or sample was taken from an intimate part.
[41]
The DNA extraction process at the laboratory which is a DNA analysis
on the vaginal swabs includes trying to remove all the
female DNA.
This is not always successful resulting in the result being a mixture
but sometimes they do end up with a single
male profile. If the
DNA from the swab is a mixture they then check to see if in all of
the alleles, all of the DNA from
the suspect is represented in that
mixture. It is only when the complete DNA from the suspect is
represented in all the loci
that the suspect is included in respect
of the swab from the victim.
[42]
Her conclusion therefore was that the DNA result of the reference
sample H. Dyosi 15DBAJ4875 can be read into the mixture DNA
result on
the swab vestibule PA4000987435. The most conservative
occurrence for the mixture DNA result on the swab vestibule
PA4000987435 for all the possible contributors is one person in every
1 104 trillion people.
[43]
Under cross examination she conceded that it is possible that 13.2
can be a male allele. However, she went on to say
that it being
only one allele she would expect it to be from the victim’s
intimate part. She added that in any event
the suspect’s
DNA is also present even in that marker with an unknown allele.
[44]
A number of other state witnesses testified in respect of each of the
charges. Documentary evidence and certain admissions
were
handed up by agreement. It would, therefore, serve no purpose
to summarise all of this evidence as it was never disputed
or
challenged. Most of it related to crime scene visits by police
officers and the collection of exhibits and the taking of samples
which were later analysed at the forensic laboratory. The state
thereafter closed its case and the accused testified in his
defence.
The
defence case
[45]
The accused started his evidence with a bold assertion that he never
committed any of the offences for which he was charged.
He knew
only two of the victims being N[…] Q[…] and N[…]
N[…] being the deceased in counts 3 and 4
and counts 6 and 7.
He testified that he and N[…] stayed in the same locality.
He had a love relationship with
N[…] and that relationship
never stopped until she died.
[46]
On 05 June 2015 he was at work at N[…]’s place when
three police officers arrived. They asked him for his
cell
phone and he told them that it was being charged. Mr Nzube took
it and said that was the cell phone they had been looking
for.
They thereafter took him to Lady Frere police station. On their
arrival there at the police station they assaulted
him asking him why
he killed N[…]. He told them that he did not kill N[…].
They asked him where he got
his cell phone from and he told them that
he got it from Bhabhu. He was taken to Bhabhu where Mr Nzube
asked Bhabhu if he
knew him and Bhabhu said he did not know him.
He then said to Bhabhu that he was the one he had sold a cell phone
to.
Bhabhu said he did not sell cell phones, he was merely
fixing them. He then asked Bhabhu about the cell phones which
had
price tags in the glass counter. Bhabhu then said he did
not sell fake cell phones.
[47]
He testified that he had seen the cell phone that the police were
interested in from that glass counter and had bought it for
R300.00
from Bhabhu. However, he never got a receipt. Bhabhu had
lied when he testified that he was not selling any
cell phones.
He was arrested on 5 June 2015 and he had had that cell phone for
about a month at the time of his arrest.
When he bought that
cell phone he did not check its IMEI number as all he wanted was to
buy a cell phone as his other phone had
a problem. He could not
dispute that the cell phone which he said he bought from Bhabhu
belonged to N[…]..
[48]
They left Bhabhu’s shop and returned to the police station.
He was thereafter taken to a hospital in Queenstown.
When they
arrived at the hospital they were attended to by a nurse, Miss
Mpatheni who took buccal samples from him. The nurse
was
assisted by the police officers in sealing the buccal samples who
then showed him that they were sealed. He disputed Miss Mpatheni’s
evidence, the nurse and the police’s evidence that police did
not assist her in sealing the buccal samples.
[49]
He also disputed Ms Mpatheni’s evidence that she only took
three buccal samples from him. After the samples were
taken he
was taken back to the police station. He testified that he did
not know how his DNA got to be linked to the rape
and murder victims
and complainants. He did not rape any of them and he did not go
to Phumla Mqeshi locality.
[50]
On the date on which N[…] was raped and killed, he did not go
to Ngcuka Mountain where she was found dead. On
21 July 2014,
the date on which A[…] O[…] T[…] was raped near
Lady Frere Day Care Centre he was not there.
On 15 May 2015,
the date on which N[…] was raped and killed at Ngcuka locality
he never went there. He only heard
that N[…]was found
there. On 12 April 2014 the date on which Buyelwa Veyi was
raped and killed at Ngcuka locality
he was not there. However,
he was present when her body was removed as he stayed in that
locality. On 9 January 2015
the date on which N[…] S[…]
J[…] was raped and killed at Phumla Mqeshi locality he never
went there.
[51]
Under cross examination he confirmed that before his arrest he
resided at Ngcuka locality and he was born there. He knows
Phumla Mqeshi locality and it is about 10km from Ngcuka locality.
On 7 April 2012 the date on which Ms Angelina Fose was
attacked and
raped he did not remember where he was but normally would be at
home. He saw A[…] F[…] for the
first time when
she testified in court. He never had sexual intercourse with
her. He did not know how his DNA was found
from a swab that had
been taken from her cervix. He, however, could not deny that
his DNA was found from that swab.
[52]
He confirmed that he knew N[…] N[…] as they had a love
relationship. They had that relationship for about
a year or a
little bit longer than a year from 2013 to 2014. They were in a
sexual relationship until she died. When
it was put to him that
N[…] died or her body was found on 7 December 2012 at Ngcuka
Mountain in Lady Frere he testified
that he was not sure about the
period in which they were in a relationship. The last time he
saw her was on the day she was
killed and he had sex with her.
He was still wondering how his DNA was found on the cervical and
vaginal swab of A[…]
O[…] T[…] who was raped on
21 July 2014 near the Lady Frere Day Care Centre as he did not rape
her.
[53]
He had known N[…] Q[…] for a long time. He had no
relationship with her. He could not dispute that
his DNA was
found on her pants.
[54]
He did not know B[…] V[…] and he was not in town on the
day she was last seen alive. He heard when the
evidence was
given that his DNA was also found on her genitalia. He also did
not know N[…] S[…] J[…]
whose body was found on
9 January 2015 at Phumla Mqeshi locality. He never met her as
he did not even know her. He
did not know how it is that his
DNA was found on her vestibule swab.
[55]
He testified that he did not know N[…]i’s cell phone and
therefore could not dispute that it is the one that was
traced to him
through the IMEI number. He heard from sergeant Nzube that the
phone which he said he bought it from Bhabhu
was N[…]’s
cell phone. He confirmed that before his arrest he had had that
cell phone for about a month.
It was put to him that N[…]
went missing on the 15 May 2015 and he was found in possession of the
cell phone on 5 June 2015
which is about three weeks. He said
he did not know when he brought the cell phone and the time line that
he gave was just
an estimation. He also confirmed that he was
not given a receipt when he bought the cell phone from Bhabhu.
He was
surprised that his DNA profile was also found in her and she
had also been killed. He said he was also confused about the
fact that six different women who had been raped on different days
were found with his DNA.
[56]
After the evidence of the accused the defence closed its case without
calling further witnesses.
The
analysis of the evidence
[57]
The evidence against the accused is circumstantial. The state
had no direct evidence of anyone having seen the accused
person
committing any of the crimes for which he was charged. Most
victims in this case were raped and killed. Even
the victims
who did not die, A[..] F[…] and A[…] O[…] T[…]
did not see the person who assaulted and
raped them. Therefore
there was no direct evidence.
[58]
In respect of each rape and murder victim swabs were taken from their
private parts and certain items of clothing found at
crime scenes for
DNA analysis. Initially when the five victims, A[…]
F[…], A[…] O[…] T[…],
who were
raped but were not killed, N[…] N[…], B[…] V[…]
and N[…] S[…] J[…] who
were raped and killed
there was no suspect and therefore the DNA collected could not be
compared with any suspect’s DNA.
[59]
It was the rape and the murder of N[…] Q[…] that linked
all the other five cases through the DNA. The evidence
of the
state is that N[…]’s father had bought her a cell phone
from Jet Stores. He had kept the box which came
with that cell
phone at home. When he came back from Gauteng where he worked
he told the police that he had bought N[…]
a cell phone which
was never found with her when her body was found at Ngcuka Mountain.
The police used the IMEI number found
on the box of that phone to
trace that phone’s activity. They established that that
phone was being used with a different
sim card.
[60]
Further investigations led to the accused and that phone was found in
possession of the accused person. He claimed to
have bought it
from Mohammed Shafique (Bhabhu). However, Bhabhu denied that he
ever sold the said phone to the accused.
His evidence was that
he had a cell phone repair business in town in Lady Frere. He,
however, did not sell any of the cell phones
that he repaired and did
not sell any cell phones at all.
[61]
That led to the arrest of the accused from whom a buccal sample was
taken. That buccal sample was compared to the male
DNA found in
the swabs taken from N[…] and it was a positive match.
The accused’s DNA also had a hit with other
male DNA found in
other victims of crimes being rapes and murders in this case.
This necessitated a confirmation sample to
be taken from the accused
and the evidence of the state is that the DNA of the accused was
found in the swabs taken from all the
victims of rape and murder in
this case.
[62]
The evidence of the accused amounted to nothing more than his denial
that he is the person who raped and killed the deceased
and raped and
assaulted two other victims in respect of the rape and murderous
crime spree. He claimed to have had consensual
sexual
intercourse at his homestead with N[…] N[…] whom he
said was his girlfriend, during the day, on the very day
of her rape
and murder. He also testified that having been in a
relationship with her for more than a year, nobody, at least
not from
his side knew about their relationship. There were two reasons
for this, the first one was that it was a secret
love affair as he
had a love relationship with one Kholeka. Secondly he had no
close friends who knew about this relationship.
He basically
was the only one other than the deceased herself who knew about their
relationship.
[63]
My assessment of the evidence is that the accused lied about a love
relationship with N[…] which never existed.
He also lied
about the consensual sexual intercourse which he claimed happened
during the day on the day in which N[…] was
killed. He
was very strangely unable to give details about their love affair
which he conveniently said nobody knew about
it. I accept the
evidence of the state that N[…] N[…], like all the
other victims was raped. In respect
of all the other victims of
rape and some were subsequently murdered he made no attempt to
challenge the DNA evidence which linked
him to all those victims, all
of whom had been raped and some of whom were also murdered after
being raped. His evidence
was so improbable as to be false and
an afterthought. The same applies to his evidence about how he
got to be in possession
of the phone belonging to N[…] which
was found by the police in his possession three weeks after she was
raped and killed.
I must emphasize that his DNA was also
inexplicably found in the case of N[…].
[64]
I must point out that all the chain evidence led by state witnesses
from all the crime scenes and from all the victims was
not questioned
or called into doubt. A number of state witnesses were called
who gave evidence about the collection of DNA
samples from all the
victims of these crimes and various crime scenes. The chain
evidence from each victim and crime scene
was accounted for through
proper procedures that were painstakingly and vigorously observed
until that evidence was scientifically
analysed by appropriately
qualified and experienced DNA analysts. All that process having
been observed the results of the
DNA analysts about the DNA samples
taken from all the victims all came to the same conclusion
implicating the accused. Having
listened to all the witnesses
of the state about the collection and preservation and transportation
of the evidence to the final
DNA forensic laboratory in Cape Town
where it was analysed, was handled with great care and integrity.
This explains why
the accused did not and I add could not challenge
that evidence on any cogent basis.
[65]
Mr Gxaba, counsel for the accused conceded, correctly so, during
argument that there was no challenge mounted by the accused
against
the manner in which the chain evidence in this case was handled.
There was also no challenge to the DNA forensic
analysis evidence of
the DNA analysts who analysed the DNA samples collected from the
accused and the victims.
[66]
In
Bokolo
v S
[1]
the court pronounced decisively on how DNA evidence should be
assessed and dealt with in our courts. The court said:
“
[17] Evidence of
DNA profiling may be of great significance in a given case. It
is important, however, that evidence of DNA
profiling be viewed in a
proper perspective in each case.
[18] Evidence that the
STR profile of an accused person matches that of a sample taken at
the scene, or can be included there, is
circumstantial evidence.
The weight therefore depends on a number of factors. These
include:
(i) The establishment of
the chain evidence, ie that the respective samples were properly
taken and safe guarded until they were
tested in the laboratory.
(ii) The proper
functioning of the machines and equipment used to produce the
electropherograms.
(iii) The acceptability
of the interpretation of the electropherograms.
(iv)The probability of
such a match or inclusion in the particular circumstances.
(v) The other evidence in
the case -
[19]
Paragraphs (i) and (ii) speak for themselves. Analysts provide
interpretations of electropherograms referred to in paragraph
(iii).
The weight of such expert opinion (and of conflicting opinions)
depends on the extent to which the opinions are founded
on logical
and cogent reasoning.
[20]
If the STR profile of an accused person in fact differs from the
profile retrieved from the sample taken at the scene, even
in respect
of only one allele, the accused person must be excluded as a source
of the crime scene DNA. However, the converse
is not true.
Because only a limited number of STR loci are analysed, an STR
profile cannot identify a person. Therefore
the weight to be
attached to evidence of an STR profile match or inclusion in the
first place depends on the probability of such
a match or inclusion
occurring in a particular population. Without such evidence the
STR profile match or inclusion means
no more than that the accused
person cannot be excluded as a source of the crime scene DNA.
[21]
If the profile in question may be found in many individuals, a match
between the profile of the accused person and the crime
scene DNA
will have little or no probative value. This is of particular
importance where the crime scene DNA is a mixture,
which increases
the likelihood that the profiles of other members of the population
can be read into the mixture. On the
other hand an extremely
rare profile will strongly point to the involvement of the accused.
This essential component of DNA
evidence is usually presented in the
form of statistical analyses of a population database. This is
the complex topic that
does not in this case require further
elaboration than the following general remarks.
[22]
First the more loci are included in the profile the less chance there
is of another person adventitiously fitting the profile.
Second, statistical calculations of this nature generally make use of
the product rule. This rule postulates that the probability
of
several things occurring together is the product of their separate
probabilities. It calculates the numerical probability
that a
particular profile may occur in a population or, in its alternative
form, the numerical probability that a person randomly
chosen from
that population will possess the same genetic profile. The
important point is that the results of these calculations
are not
absolute.
[23]
This brings into play the other evidence in a case. I cannot
conceive of a criminal case where there is absolutely no
other
relevant evidence or evidentiary material. This may range from
direct eye witness evidence implicating the accused,
to
circumstantial evidence as mundane as the proximity of the home of
the accused to the scene of the crime. This may of
course also
include evidence pointing to the innocence of the accused. In
the final analysis this evidence determines whether
the guilt of the
accused has been proven beyond reasonable doubt or not.”
[67]
The evidence of the state that the deceased were raped and killed and
the two complainants who were not killed were assaulted
and raped was
never disputed. All that the accused was saying was that he was
not the person who committed those offences.
In his evidence he
made no serious attempt to dispute or put into doubt the evidence of
the state.
[68]
All the places in which the offences more committed were well known
to the accused which were all within close proximity of
his
homestead. All he said was that he was never in any of those
places on those days during which the crimes were committed.
It
is true that there is in fact no evidence by the state that he was
there on those days or at any time during which those crimes
might
have been committed.
[69]
Our law requires that all the evidence must be accounted for and
considered together. In
S
v Van der Meyden
[2]
the court stated the legal position in this regard as follows:
“
The
onus of proof in a criminal case is discharged by the state if the
evidence establishes the guilt of the accused beyond reasonable
doubt. The corollary is that he is entitled to be acquitted if
it is reasonably possible that he might be innocent.
These are
not separate and independent tests but the expression of the same
test viewed from opposite perspectives. In order
to convict,
the evidence must establish the guilt of the accused beyond
reasonable doubt, which will be so only if there is at
the same time
no reasonable possibility that an innocent explanation which has been
put forward, might be true. The two are
inseparable, each being
the logical corollary of the other. In which ever form the test
is expressed, it must be satisfied
upon consideration of all the
evidence. A court does not look at the evidence implicating the
accused in isolation in order
to determine whether there is proof
beyond reasonable doubt and so too does it look at the exculpatory
evidence is isolation in
order to determine whether it is reasonably
possible that it might be true.”
Conclusion
[70]
On the conspectus of all the evidence in this case. I have come
to the conclusion that the state has proved the guilt
of the accused
beyond reasonable doubt. The evidence of the state against the
accused was overwhelming. I am satisfied
that it is the accused
who assaulted, raped and in many cases killed the victims of those
crimes. The evidence of the state
that his DNA profile was
found in the swabs obtained in respect of the different crimes in
this matter corroborated each other.
That evidence by the state
could not be gainsaid by the accused in any meaningful way.
[71]
In the result the accused is found guilty of all the charges
preferred against him in the indictment.
_____________________
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the State: A. GOVENDER
Instructed
by: NPA
MTHATHA
Counsel
for accused: W.K.M. GXABA
Instructed
by: LEGAL AID SOUTH AFRICA
MTHATHA
Heard
on: 15 July 2019
Delivered
on: 17 July 2019
[1]
Bokolo v S 2014 (1) SACR 66 (SCA)
[2]
S v Van der Meyden
1999 (2) SA 79
(WLD)