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[2018] ZAMPMBHC 1
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S v Ndziyane and Others (Roelofse AJ) [2018] ZAMPMBHC 1; CC101/2017 (18 October 2018)
REPUBLIC OF
SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
(CIRCUIT
LOCAL DIVISION OF THE EASTERN CIRCUIT DISTRICT)
(GAUTENG
DIVISION, MPUMALANGA)
CASE NO:
CC101/2017
In the matter
between:
THE
STATE
and
BONGANI
NDZIYANE
Accused
1
CHARLES
NGWENYA
Accused 2
JUDGMENT
Roelofse
AJ:
[1]
The State alleges that the accused went on a wild crime spree
which lasted just over a week. The State alleges that the accused:
broke into a home where they stole a firearm and other items
belonging to a member of the SAPS; shortly after the theft, broke
into another home, raped two women in the home, robbed one of them of
her cell phone, compelled a man, who was also present in
the home, to
have intercourse with one of the woman and attempted to kill one of
the woman as she escaped the ordeal; and, that,
approximately one
week later, robbed two persons, attempted to kill one of those
persons during the robbery, kidnapped a woman
who was present at the
robbery, where after, one of the accused, raped the women.
[2]
The inditement consists of twelve counts. The counts relate to
offences committed at three occasions and at three locations. The
counts include housebreaking, robbery, rape, compelled rape,
attempted murder, kidnapping and the unlawful possession of a fire
arm.
[3]
The housebreaking charge in Count 1 was allegedly committed at
Mganduzweni Trust on 24 April 2015.
[4]
The housebreaking (Count 2), rape (Counts 3 and 5), compelled
rape (Count 4) and attempted murder (Count 6) were allegedly
committed
at Chochocho Trust on 25 April 2015 (hereinafter referred
to as “the first incident”).
[5]
The robbery (Counts 7 and 8), attempted murder (Count 9),
kidnapping (Count 10), rape (Count 11) and the unlawful possession of
a fire arm were allegedly committed at Mganduzweni on 2 May 2015
(hereinafter referred to as “the second incident”).
[6]
There are two accused. Accused 1 is indicted on all the
counts. Accused 2 is indicted on Counts 1, 2, 4, 5, 6 and 10.
[7]
I proceed to summarise the charges relating to the house
breaking and the first and second incidents.
[8]
The State alleges that on 24 April 2015, the accused
unlawfully and intentionally and with intent to steal, break open and
enter
the house of Constable Thula Bethule Mlimi and stole his
service pistol to wit a 9mm Parabellum Calibre Barretta model 92FS
semi-automatic
pistol with serial number P88687Z together with 15
rounds ammunition, two 2l cold drinks, two loaves of bread and half a
braaipack
together with an Alcatel Vodafone cellular telephone and a
GPS.
[9]
In respect of the first incident, the State alleges that: both
accused unlawfully and intentionally broke open and entered a
residence
with the intent to commit robbery; they robbed Ms. Zanele
[………] of her Nokia Lumia 520 cell phone; Accused
1 raped Zanele; both the accused compelled Mr. Hendry Nighty [………..]
to commit an act of sexual penetration
with Zanele; both accused
raped Ms. Prudence […………..]; and that
both the accused attempted to kill
Prudence by shooting in her
direction with a fire arm. The State alleges that the offences were
committed at the residence the
accused allegedly broke into.
[10]
The State alleges that, during the second incident: both
accused robbed, Mr. Mr. Vusi Mnisi and Mr. Sydney Mpho Mashego of
money,
cigarettes and their cell phones at gun point; Accused 1
attempted to kill Mr. Mashego by firing at him with a firearm; both
accused
kidntapped Ms. Prudence M[………..];
Accused 1 raped Prudence M; and that Accused 1 was in unlawful
possession
of the firearm stolen from Constable Mlimi.
[11]
The State relied upon the provisions of Section 51(1) of Act
105 of 1997 in respect of Counts 4, 5 and 11, and upon the provisions
of Section 51(2) of the same Act in respect of Counts 2, 3, 7 and 8.
[12]
Both the accused were represented by counsel on Legal Aid
briefs.
[13]
The accused made certain admissions in terms of Section 220 of
the Criminal Procedure Act 51 of 1977 (“the Act”). In
their combined Section 220 statement, the accused admitted the
authenticity and correctness of the photo albums, sketch plans and
keys of the crime scenes relating to the first and second incidents.
The accused also admitted the ballistic reports compiled by
police
experts.
[14]
During the trial, the prosecutor presented evidence in terms
of Section 212 of the Act relating to ballistic and DNA tests and
chain
evidence relating thereto. There was no objection from the
defence to the ballistic and DNA evidence being admitted into
evidence.
Further concessions were also made by the accused. I shall
return to these issues later in the judgment. The purpose of the
forensic
evidence was to link the accused to the housebreaking in
Count 1 and the first and second incidents.
[15]
I proceed to deal with the evidence.
Housebreaking
and theft of the fire arm (Count 1)
[16]
Constable Mlimi is stationed at the Flying Squad at the SAPS
in White River. Constable Mlimi testified that he left his service
pistol on a fridge in his home on 24 April 2015. He did so in order
to take a bath. Constable Mlimi left his house for his parents’
residence but forgot his pistol on the fridge. Upon his return, he
found that the security door as well as the door to his home
were
forced open. He found his house in disarray. His service pistol was
removed from the top of the fridge and certain food items
were also
removed from the fridge. He testifies that his Nokia cellphone as
well as a GPS was also removed from his home.
[17]
On 2 May 2015, Constable Mlimi received a call from Constable
Joseph Smanga Mnisi. Constsable Minisi informed him that he has
information
concerning people who was in possession of Mlimi’s
service pistol. Mnisi called on Mlimi at night and picked him up to
follow
up on the information Mnisi had received. They travelled in a
police vehicle. Mlimi and Mnisi stopped at a house. The home
consisted
of two rooms. Mlimi and Mnisi stopped outside the gate of
the house. Mlimi and Mnisi alighted from the police vehicle and
walked
to the home. Mnisi told Mlimi to guard a window that was at
the back of the house. Mlimi went to the window and waited. He heard
noises in the house and knew that Mnisi had kicked open the door to
the home. Mlimi heard Mnisi saying that Accused 1 must get
up. Mnisi
mentioned Accused 1 by his name. Mlimi went into the home through the
door and found Mnisi, Accused 1 as well as a woman
in the room. The
woman was half naked. She was standing in a corner. When Mlimi saw
the woman, he asked her what she was doing
with this scum. He
referred to Accused 1. Mlimi testifies that the woman told him and
Mnisi that she was there by force. Mnisi
and Mlimi took accused as
well as the woman to the police station. Constable Mlimi’s
evidence also has a bearing on the second
incident. As will appear
from what is set out below, the woman that was found with Accused 1
is one of the victims of the second
incident.
The
first incident (Counts 2 to 6)
[18]
Ms. Zanele [……….] is the complainant in
the housebreaking, robbery, rape charges (Counts 2 to 4). Zanele
testified
that she was at Chochocho on 25 April 2105. She went to Ms.
Zandile Maphaga’s home together with Nighty (the complainant in
the compelled rape charge - Count 4). Zanele and Nighty are cousins.
They went to Ms. Maphaga’s home in order to study for
the
exams. When they arrived, Ms Prudence [……….]
(the complainant in Count 5), one Lotacia and Ms. Maphaga
were at
home. Prudence, Lotacia and Ms. Maphaga left so that they would not
disturb Zanele and Nighty while they were studying.
They closed the
front door of the house when they left. Zanele and Nighty proceeded
to study at the kitchen table in Ms. Maphaga’s
kitchen.
Zanele’s Nokia cell phone was on the kitchen table.
[19]
The front door of the house was kicked open by the accused.
Accused 1 had a firearm and Accused 2 had a knife. Accused 1 pointed
the firearm at Zanele and Nighty. Accused 2 pointed a knife at them.
The accused hurled insults at them. The accused wanted money
and
asked Zanele and Nighty to help search the home for money. Zanele and
Nighty proclaimed that they do not live there and do
not know where
money could be. Nevertheless, the accused forced them to search for
money.
[20]
After the house was searched, Accused 1 sat on a couch and
ordered Zanele to sit on her knees in front of him. Accused 1 pointed
the fire arm at Zanele. He ordered Zanele to kiss him. She did so.
Accused 1 told her that it was not a good kiss and told her
to kiss
him as if he was her boyfriend. While this was happening, Nighty was
kept at knife point by Accused 2. Accused 1 took Zanele
and Nighty
into a room in the house. The accused ordered Zanele and Nighty to
undress. They did so until they were completely naked.
[21]
The accused ordered Zanele to lie on the bed and instructed
Nighty to have intercourse with her. Nighty refused to do so. He was
forced to have intercourse with Zanele by the accused. He mounted
Zanele but did not succeed to have intercourse with her because
he
was unable to get an erection. Accused 2 was holding the knife on
Nighty’s buttocks while he attempted to have intercourse
with
Zanele. Accused 2 told Nighty that he will injure him if he did not
have intercourse with Zanele. Accused 1 pulled Nighty
off Zanele.
Accused 1 opened his trousers, produced his penis and told Zanele
that he would show her what good sex is. Accused
1 raped Zanele.
Nighty was forced to watch.
[22]
After raping Zanele, Accused 1 took Zanele and Nighty to
another room. The accused once again forced Nighty to have
intercourse
with Zanele. The accused covered Zanele and Nighty with a
blanket. They were still naked. Zanele lay on her back with her legs
apart. Nighty lay on top of her. Zanele and Nighty were completely
covered with the blanket, but they could still see through a
small
opening between the blanket and the bed. Zanele testified that Nighty
had an erection and that he made thrusting movements
on top of her.
Zanele does not know if Nighty ejaculated.
[23]
While Zanele and Nighty were still covered with the blanket,
Zanele heard footsteps outside of the house. She also heard Lotacia
and Prudence’s voices. She heard that Prudence had entered the
house and heard her screaming. Next, Zanele heard what sounded
like
people running away from the house and a gunshot. After the gunshot,
all went quiet. After a few minutes, Zanele and Nighty
took the
blanket of themselves and got dressed. They went outside. They found
people outside of the house. The accused were no
longer there. The
police were called. Zanele, Nighty and Prudence were taken to the
police station and the Temba hospital where
they were examined.
[24]
Zanele testified that Accused 1 took her cell phone during the
incident. She was called by Constable Mnisi to identify the cell
phone. She still has the packaging the cell phone came with. She gave
the IMEI number on the packaging to Constable Mnisi.
[25]
The State called a professional nurse, Ms. Lindiwe Julia
Ngobeni. She is stationed at the Temba Hospital. She conducted the
examinations
on Zanele and Prudence. She completed the J88 forms of
Zanele and Prudence. The defence did not dispute the findings made by
Ms
Ngobeni as recorded upon J88 forms. Nothing turns on the J88 forms
in respect of Zanele and Prudence. Ms Ngobeni was questioned
over the
DNA evidence that was collected from Zanele and Prudence. Her
testimony accords with the serial numbers that was given
in respect
of Zanele and Prudence as indicated on their respective J88 forms.
The samples taken were the usual samples in rape
cases. This included
swabs from Zanele and Prudence’ genitals. The originals of
formes called “Adult Sexual Assault
Evidence Kit” in
respect of the DNA samples that were collected from Zanele and
Prudence’ genitals were handed in as
exhibits without any
objection from the defence.
[26]
The State called Nighty to testify. Nighty testified that he
went with Zanele to Zandile’s house to study. Nighty’s
testimony over the events accords in most respects with Zanele’s
testimony. His testimony differs however in one respect.
He testified
that he did not have an erection on both occasions he was ordered to
have intercourse with Zanele. He was adamant
that he could not have
an erection as, so he explained, for a man to have sex with a woman,
his mind and body must be prepared.
He was not “ready”
because of the circumstances and because Zanele is his niece. He
testified that while he was lying
on top of Zanele during the first
occasion he was ordered to have intercourse with her, Zanele was
lying on her back and her legs
were flat on the bed slightly spread
out. Nighty testified that he saw Accused 2 taking Prudence to
Zandile’s bedroom. He
testified that after some ten to twenty
minutes under the blanket, he heard Lotocia’s voice outside.
She was calling out
Nighty, Zanele and Prudence’ names. While
under the blanket he heard Prudence saying: “
Sister come in,
come in
”. He then heard footsteps in the home. After some
time, the footsteps he had heard stopped. He heard a gunshot.
According
to Nighty, it felt to him as if the gun was fired in the
house.
[27]
The State called Prudence. In her testimony, Prudence gave
more detail to what transpired before she came across the accused at
Zandile’s house. The testified that she, Zandile and Lotacia
left because Zanele and Nighty wanted to study. She, Zandile
and
Lotacia went to a tavern nearby. It was approximately at 18:00. She,
Zandile and Lotacia went somewhere else. She noticed that
Accused 1
was following them. Accused 1 proposed love to Prudence. She told
Accused 1 that she was on her way to see her boyfriend.
She did not
know Accused 1 before then. It was the first time that she saw him.
Prudence, Zandile and Lotacia returned to the first
tavern and found
the accused sitting under a tree where Prudence, Zandile and Lotacia
were seated previously. Because the accused
were sitting where they
were seated before, Prudence, Zandile and Lotacia went to sit
somewhere else. The accused followed them.
The accused wanted to join
them. They refused and went to sit at a different place at the
tavern.
[28]
Prudence developed hiccups. She decided to go to Zandile’s
house to get some water. When she arrived at Zandile’s house,
she found the door open and the house in disarray. She went into the
house. Accused 2 appeared from the bathroom. He pointed her
with a
knife. Accused 2 took Prudence to a bedroom in the house. Accused 2
told Prudence to undress. She refused. Accused 2 slapped
her in the
face with his open hand. She fell down and kneeled. Zanele appeared
with Accused 1. Zanele was pointed with a firearm
by Accused 1.
Zanele was naked. The accused instructed Zanele to get onto the bed
in the room. Nighty was already lying on the
bed. Zanele and Nighty
were instructed to cover themselves with a blanket.
[29]
Prudence was taken to another bedroom by the accused. Accused
1 pointed Prudence with a firearm. He again ordered her to undress.
She again refused whereupon Accused 1 hit her with the firearm on her
head. She still refused. Accused 1 forcefully took off her
pants. He
opened her legs and he called Accused 2. Accused 2 unzipped his
trousers and inserted his penis into her vagina. While
Accused 2 was
still busy having intercourse with her, Accused 1 removed Accused 2
from her. Accused 1 unzipped his trousers and
inserted his penis into
her vagina. When he was done, he requested a t-shirt to wipe himself.
Prudence identified the red striped
garment appearing on photograph 4
in Exhibit “B” as the t-shirt he took to wipe his penis.
[30]
Lotacia entered the house with another lady. She called
Prudence, Zanele and Nighty. Accused 1 told Prudence to respond. He
said
that she must say “
Sister, come in”.
She did
so at gunpoint. Prudence saw Lotacia and the other lady running away.
She also got a opportunity to run away. She heard
a shot fired. She
does not know who fired the shot, because she was running away.
Prudence fell near the door of the house. She
thought that the
accused wanted to finish her. She got up and ran to the tavern where
she cried out for help. She told people that
people had raped them in
the house. The people came but the accused had already left the
scene. The SAPS arrived. Zanele, Prudence
and Nighty were taken to
the police station where statements were taken down from them.
[31]
Prudence testified that it was still light when they left the
house. Under cross-examination, Prudence confirmed that she made a
statement and the statement that she made was produced and shown to
her. It was put to her that in her statement she said that
only one
accused had sexual intercourse with her. She confirmed that she said
this. In her reply, she repeated that Accused 2 raped
her and
thereafter Accused 1. It was put to her that in her statement she
described the one of the persons who had raped her as
having scars.
She denied that she said this to the police.
[32]
Both accused’s version of a total denial of any presence
at the scene or the rape was put to her. Prudence maintained that
both accused had raped her. The notes made by Ms Ngobeni on the J88,
was put to Prudence. Ms. Ngobeni recorded under paragraph
5 of the
J88 that Prudence had reported to her that:
“…
..on
the 25
th
of April 2015 at about to twelve
midnight one of the two unknown men raped me - without using a
condom……”
It was put
to Prudence that this constituted a discrepancy in her evidence
because she testified that both accused had raped her.
Prudence
explains the discrepancy that the nurse might not have understood her
well.
[33]
With the court’s leave Prudence was recalled. This was
done after Accused 2’s counsel indicated that has omitted to
put Accused 2’s version to Prudence. It was put to Prudence
that Accused 2’s version is that he had a relationship with
her, after they met at a tavern about three weeks before the first
incident. She was confronted with Accused 2’s version
that he
wanted to propose love to her but did do so because her boyfriend was
related to him; that Prudence agreed to have a secret
relationship
with him; that he had slept with Prudence; and that she falsely
implicated her because she was pregnant and Accused
2 told her that
he does not take responsibility therefore. Prudence emphatically
denied Accused 2’s version. During her testimony
it appeared
that she became extremely emotional and showed sighs of total disgust
over Accused 2’s version.
[34]
The State called Mr. Dumisani Masuku. He testified that he
knows Accused 1. Accused 1 is a neighbour of his wife. They live in
Chochocho.
He has known Accused 1 for a long time. Mr. Masuku
testified that on 25 April 2015, both accused came to his home at
about 06:00
to 07:00. It was the first time he saw Accused 2. Mr.
Masuku testified he had a hangover on that morning. He and the
accused smoked
cigarettes. He went to a tavern to buy beer. Mr.
Masuku testified that the accused had two cell phones with them. It
was a waterproof
Sony phone and a cell phone which was blue in
colour. They also had Nike bag in their possession. Accused 1 was in
possession of
the bag. The three of them drank beer and the accused
told him that they wanted to sleep because they were tired. He left
them
at his house and came back that afternoon between 14h00 and
15h00. When he came back, they were sleeping. He opened the bag to
see what was in it. He saw a firearm in the bag. They all went to a
tavern at about 18h00 to 19:00. He had one beer and left for
home.
When he arrived at home he wanted to listen to music off his USB. He
could not find it. He alleges that the accused stole
the USB. The
following morning Constable Mnisi paid him a visit to enquire over
the whereabouts of the accused.
[35]
The State called Zandile. She testified that she is the owner
of the house at which the first incident took place. In her evidence,
she identified photo 1 in Exhibit “B” as her home. She
testifies that the front door as well as the bedroom door of
the
house were found to be damaged after the incident. She confirms that
when she arrived at the house on the night of the first
incident, the
house was ransacked. A table and two tea cups were broken. In
addition, everything in the house was scattered around.
[36]
The State called Mr. Boy Reanot Malethe. Mr. Malethe, during
the time of the first incident, owned a shop in Mganduzweni. He
testified
that he knows the accused from Mganduzweni. On 27 April
2015, Accused 2 came to his shop. Accused 2 had Nokia cell phone with
him.
He wanted to sell the cell phone to Mr. Malethe. Mr Malethe
agreed to give Accused 2 R100,00 as a deposit and keep the cell phone
for a week before he pays the remaining asking price of R500,00. Mr.
Malethe asked Accused 2 to explain where the cell phone came
from.
Accused 2’s explanation was that he had broken up with his
girlfriend who he had bought this cell phone for and has,
a result of
their breakup, decided to take the cell phone back. Mr. Malethe kept
the cell phone and gave Accused 2 R 100.00. Accused
2 left. When
accused 2 left, there was another person with him. Mr. Malethe
testified that on 2 May 2015, the police came to his
shop. They asked
him about the cell phone. The police told him that the cell phone was
stolen. He gave the cell phone to the police.
Under
cross-examination, it was put to the witness that Accused 2 will say
that he has not sold anything to him.
The
second incident (Counts 7 to 12)
[37]
The State called the complainant in Counts 10 and 11, Ms
Prudence M[……..]. She testified that on 2 May 2015, she
left
her aunt’s house to go to an area near a taxi rank in
Mganduzweni where her boyfriend, Mr. Mpho Mashego, stays. Her
boyfriend
wanted her to hang out with him. It was past 18h00.
[38]
Prudence M and Mr. Mashego went to a barbershop where they
hanged out. They were chatting, dancing and having fun. At about
22h00,
she realized that it was late. She called her brother, Mr.
Vusi Mnisi, to come fetch her. Mr. Mnisi arrived. He decided to join
them. At about 24h00, the barbershop’s owner said that he was
closing down. Mr. Mashego and Mr. Mnisi decided to accompany
Prudence
M home. They walked along a tar road. They turned off the tar road
next a school’s fence. After walking about two
minutes after
they had turned off, Prudence heard a firearm being cocked. At that
stage she and Mr. Mashego were walking in front
with Mr. Mnisi
closely behind them.
[39]
After the firearm was cocked, Prudence M heard someone saying,
“
Piss off. Everyone must lie down
”. They looked
around. It was Accused 1. Accused 1 asked what they were looking at
and said that they must lie down. The three
of them lay on the
ground. Accused 1 instructed them not to look at him. Accused 1 was
continuously hurling insults at them and
wielding his firearm. While
Prudence M was on the ground, she removed her cell phone and hid it
in the grass next to her. Accused
1 started searching Mr. Mnisi.
After he had searched Mr. Mnisi, Accused 1 searched her and Mr.
Mashego. After searching them, Accused
1 went back to where Mr. Mnisi
was and asked if he was “Vusi”. Mr. Mnisi responded by
saying that he was not “Vusi”.
Accused 1 asked Prudence M
if it was not “Vusi”. She said that it was not. Mr. Mnisi
managed to escape. Accused 1 asked
where Mr. Mnisi was and became
angry. Accused 1 told Mr. Mashego to go. Mr. Mashego got up and
stepped back. Prudence M heard a
gunshot. She does not know where Mr.
Mashego was when the gunshot was fired.
[40]
Accused 1 said to her that they must go. She walked with
Accused 1 for about ten metres. Accused 2 appeared at the fence of
the
school. Prudence M testified that she did not walk with the
accused voluntarily but that she was forced by Accused 1 and Accused
2 who had an okapi knife. Accused 1 walked in the front, Prudence M
was in the middle and Accused 2 walked behind her. She stopped
near a
graveyard because she was tired. Accused 2 slapped her with an open
hand in her face.
[41]
The accused discussed that they wanted alcohol. They referred
to music that could be heard from a tavern known as “
Spar
”.
Both the accused decided to go there. However, they changed their
minds and decided rather that Accused 2 go and buy liquor
while
Accused 1 would stay with Prudence M. Accused 1 nudged her along and
they took a footpath to a big rock. There they waited
for Accused 2
to return with the alcohol. At some point Accused 2 phoned Accused 1
to enquire where they were. Accused 1 gave Accused
2 directions. He
joined them. Accused 1 told the witness that if she did not know
them, they would keep her alive. Prudence M told
the accused that she
was not from the area therefore did not know them. They proceeded
from the place where they waited for Accused
2.
[42]
Along the way, accused 2 took an empty bottle and hit Prudence
M on her forehead. She showed a scar above her right eye and
testifies
that it was bleeding. The accused told Prudence M to go.
When she was about fifteen metres away from the accused, she told the
accused that she was going to report the matter to the police.
Prudence M started running away. The accused caught up with her.
She
stopped running because she was afraid of the firearm. The accused
told her that she would have to go where the accused were
going.
[43]
The accused and Prudence M walked until they reached a two
roomed house. Before they entered the house, they stood in front of
the
house. The accused finished their liquor. Accused 2 opened the
door to the house. After Accused 2 opened the door, Accused 1 said
that he wanted to “start”. Accused 2 said they should
start together. Accused 1 said that he would be starting. Prudence
M
and Accused 1 entered the room. Accused 1 closed the door behind them
and locked it. Accused 1 ordered Accused 2 to go next door
and wait
for them. Accused 1 ordered Prudence M to sit on the bed. There was
an electric light on in the house. He told Prudence
M to undress. She
said that she would undress but that she was still cold. Accused 1
told her that they were not there for that.
He placed the firearm on
the bed at took of one of her sneakers. She looked at the firearm on
the bed. Accused 1 asked her what
she was looking at. Accused 1
slapped her again and ordered her to undress. She undressed
everything.
[44]
Accused 1 said they must not waste time. He opened her legs
and penetrated her vagina with his penis. Prudence M asked Accused 1
if he was going to hurt her. Accused 1 said that she must piss off
and open her legs. They were both on top of the bed. She was
sitting
on the edge of the bed, lying with her back on the bed. When she
wanted to close her legs, Accused 1 hit her thighs with
his hands.
When he finished, Accused 1 said that Prudence M was now his wife and
that he was no longer going to open the door for
Accused 2. Prudence
M testified that Accused 1 did not use a condom. Prudence M testified
that Accused 1 ejaculated. Accused 2
knocked on the door. Accused 1
did not open the door. Accused 2 called from behind the door and said
“
Nziane” “Nziane
” you will regret.
Accused 1 said he will regret nothing because they will be arrested
together. Accused 1 said that he was
going to sleep. Accused 1 told
Prudence M that she must not report him. She said she would not
report him if he could only arrange
a taxi for her and that he would
spare her life. After this, Accused 1 opened her legs. He had
intercourse with her again. Accused
1 said that he thought of killing
her as well as Accused 2 so that there would be no evidence.
[45]
Accused 1 went to sleep. Prudence M lay next to him. She did
not sleep because she was afraid. Accused 1 put the gun underneath
the pillow under his head. The next moment Prudence M heard the door
to the room being broken down. She jumped out of the bed. She
saw
that it was police officers. Prudence M told the police that she had
been kidnapped. Prudence M was taken to the police station
together
with Accused 1. Prudence M testified said that she has never seen
both the accused before.
[46]
In cross-examination it was put to Prudence M that Accused 1
will say that they had consensual sex. Prudence M denied this
version.
The recordals in the J88 was also put to her. She was
confronted with the fact that the nurse who examined her did not
record the
injury on her forehead. The explanation given by Prudence
M was that she was wearing a hairpiece which may have covered the
injury
on her forehead. This would have made it difficult for the
nurse to observe the injury. It was also put to Prudence M that the
J88 report notes that she smelled of alcohol. The witness’s
explanation was that she was forced to drink of the beer by the
accused. Prudence M also explained that she did not tell the nurse
about the injury on her forehead because she was cold, wanted
the
examination to be completed and then wanted to go for a shower.
[47]
Ms. Bonisile Lushaba was called by the State. She is a
forensic nurse. Ms. Lushaba is also stationed at the Temba hospital.
She
conducted an examination on Prudence. She completed a J88 form.
The J88 was handed in without objection by the defence. The defence
did not dispute Ms. Lushaba’s findings as recorded on the J88
form. Ms. Lushaba also took the usual DNA samples from this
complainant and submitted them to the South African Police Services.
She completed the Adult Sexual Assault Evidence Collection
Kit form,
the original of which was handed in as an exhibit without any
objection from the defence.
[48]
The State called Mr. Mnisi. Mr. Mnisi’s evidence accords
with that of Prudence M with regards to the events up to the time
he
had fled from the scene. Mr. Mnisi testified that Accused 1 took a
cell phone, loose cigarettes and cash from him. He could
not remember
how much cash or how many cigarettes were taken. He described his
cell phone as a blue Nokia 100. Mr. Mnisi identified
his cell phone
at the Masoi police when he was shown different cell phones by
Constable Mnisi. He testifies that he identified
Accused 1 as the
perpetrator of the acts because he knows him very well. They went to
school together. Mr. Mnisi testified that
he knows Accused 2 because
he and Accused 2 stays in the same area. He knows Accused 1 by his
nickname “Nengazi”.
[49]
The State called Mr. Mashego. Mr. Mashego confirms Prudence
M’s version of the events prior to her leaving with Accused 1.
Accused 1 took his blue and white Nokia 101. Mr. Mashego testified
that accused 1 fired the shot while he and Accused 1 was facing
each
other. Mr. Mashego saw the flash from the gun’s muzzle to his
left-hand side.
[50]
Mr. Mashego testified that, after taking three steps back, he
ran for about one hundred metres. When he looked back to where the
robbery took place, he saw a flashlight. He went there and saw a man
with the flashlight. He reported the incident to the man with
the
flash light and looked for the money and Prudence M’s cell
phone. He found it where they had left it in the grass. He
found Mr.
Mnisi at a night ritual where he also reported the matter. Mr.
Mashego and Mr. Mnisi went to Prudence M’s aunt’s
home.
They told Mr. Mashego to go home. At 06h00 the following morning, he
received a call on Prudence M’s cell phone from
somebody that
saw Prudence M standing next to a police vehicle.
[51]
Mr. Mashego went to the Masoi Police Station. Mr. Mashego
testifies that he went with Constable Mnisi to the scene of the
robbery.
Constable Mnisi found a spent cartridge at the scene. Mr.
Mashego testifies that he does not know Accused 1 well. He knows him
from seeing him before as they stay in the same area but in different
sections. Mr. Mashego testified that where the robbery took
place,
there were lights emanating from the buildings and the church. Mr.
Mashego testified that he also knows Accused 2 from seeing
him at
taverns. Accused 2’s nickname is “Ngiane”. He was
shown a number of cell phones at the Masoi police station.
He
identified his cell phone as the one without the back cover and some
of the digits on the buttons were rubbed off as well as
the Nokia
logo.
[52]
Under cross-examination it was put to Mr. Mashego that Accused
1’s version is that Accused 1 and Prudence M had a
relationship.
Mr. Mashego denied this.
Constable
Mnisi
[53]
I proceed to deal with Constable Mnisi’s evidence. He is
the investigating officer. His testimony relates to the first and
second incidents.
[54]
Constable Minisi is stationed at the SAPS at Masoi. He has 16
years’ service with the SAPS. Constable Mnisi attended the
scene
of the first incident shortly after the incident occurred. He
found the three complainants there. Constable Mnisi went back to the
scene of the first incident the next day because he was informed by
the complainants that a shot was fired. Constable Mnisi retrieved
a
spent cartridge. He booked the spent cartridge in at the SAPS in
Masoi and registered it in the SAP13. The cartridge was found
just
outside the door to Zandile’s house.
[55]
Constable Mnisi testified that he had received information and
this information lead to the arrest of Accused 1 on the night of the
second incident. Constable Mnisi confirms that he was with Constable
Mlimi when Accused 1 was arrested. He testified that he found
Accused
1 and Prudence M next to each other on the bed when he kicked open
the door to room. He ordered Accused 1 and Prudence
M to get out of
the bed and lie on the floor. Constable Mnisi confronted Accused 1
over the firearm. Accused 1 pointed to a pillow
on the bed. Constable
Mnisi found the firearm under the pillow. Constable Mlimi was also
present in the room when firearm was found.
Constable Mnisi testifies
that Constable Mlimi identified the firearm as his weapon. Constable
Mnisi testified that he searched
the room and found 4 cell phones and
a bag. Other items were also found in the house.
[56]
Furthermore, Constable Mnisi’s testimony confirms the
sequence of events the night Accused 1’s arrest and the
discovery
of Prudence M. It accords with Constable Mlimi’s
version. He testifies that Constable Mlimi identified the weapon from
the
serial number that was underneath the weapon. Constable Mnisi
testifies that the cell phones that was recovered was later
identified
by Mr. Mashego and Mr. Mnisi as their property.
[57]
Constable Mnisi testified that, when he returned to the police
station the day following the second incident, he found Mr. Mnisi
and
Mr. Mashego there because they came to report Prudence M’s
disappearance. Mr. Mnisi and Mr. Mashego informed him that
a shot was
fired during the second incident. He went back to the scene of the
robbery and retrieved a spent cartridge. The spent
cartridge was
handed into the SAP13 at Masoi police station. Under
cross-examination, it was put to the witness that Accused 1
does not
dispute that he was in possession of Constable Mlimi’s firearm.
A version was put to Constable Mnisi that Constable
Mlimi gave his
firearm to Accused 1 because Constable Mlimi was drunk. Accused 1’s
version that he had a relationship with
Prudence M was also put to
the witness. The witness denied this as improbable because Mr. Mnisi
and Mr. Mashego alleged that they
were robbed by Accused 1.
Further
State witnesses
[58]
Warrant Officer Macheru testified that he has conducted
ballistic tests on three spent cartridges that was sent to him. He
determined
that the spent cartridges were fired by the same weapon.
His evidence also related to a supplementary affidavit he deposed to
regarding
Warrant Officer Caroline Moshwane who fired the test shot
with Constable Mlimi’s fire arm and a typo error that was made
with the reference number of the exhibit bag that contained Constable
Mlimi’s firearm.
[59]
Sergeant Sifiso Lucky Nkosi was called as a further
witness by the State. He is a detective with the SAPS for the last 11
years. Sergeant Nkosi received the cartridge relating to the first
robbery from Constanble Mnisi and transported same to the forensic
laboratory in Pretoria.
[60]
As aforesaid, the ballistic reports pertaining to the spent
cartridges that were found at the scenes of both incidents as well as
the comparison of the spent cartridges were admitted in terms of
Section 220 of the Act. The ballistic reports as well as the evidence
of Warrant Officer Macheru established that the cartridges that were
found on both scenes were fired by the same weapon.
[61]
The State relied on an affidavit in terms of Section 212 of
the Act, deposed to by Caroline Angel Mshwane who was a Warrant
Officer
in the SAPS. She fired test shots from Constable Mlimi’s
firearm and sent the cartridges for comparison. Her affidavit was
admitted into evidence without an objection by the defence.
[62]
The end result of the ballistic evidence is that Constable
Mlimi’s firearm ejected the two cartridges that were found on
the
scene of the first and second incidents.
[63]
The State further relied on affidavit in terms of Section 212
of the Act that was deposed to by Prince–Eddie Neo Mnushi.
Warrant
Office Mnushi received the DNA samples that were taken from
Zanele, Prudence and Prudence M. Warrant Officer Mnushi compared the
DNA samples with the DNA that was collected from the accused. The
findings made by Warrant Officer Mnushi are that Accused 1’s
DNA is linked to Prudence M and Accused 2’s DNA is linked to
Prudence M. The DNA collected from Prudence’s vagina vault
compared to the DNA of Accused 1. The DNA collected from Prudence’s
perineum compared with the DNA of Accused 2.
[64]
The chain evidence and findings pertaining to the ballistic
reports and the DNA reports were not challenged or disputed by the
accused.
[65]
At the close of the State’s case, both accused applied
for their acquittal in terms of Section 174 of the Act. I considered
their applications and made an order that Accused 2 is acquitted in
respect of Count 1 under the provisions of Section 174 of the
Act. I
dismissed the application of Accused 1 and Accused 2 in respect of
the remaining counts they are facing. I am not going
to dwell with
the reasons for my order as it appears from the record.
The
accused’s case
[66]
Accused 1 elected not to testify.
[67]
Accused 2 testified in his own defence. In his testimony,
Accused 2 denied any involvement in the crimes. He testified that he
was
not present when the crimes in incidents were committed. Accused
2 alleged in his testimony that he had a relationship for
approximately
three weeks with Prudence. He testified that he had
sexual intercourse with her on two occasions. During the first
occasion, he
wore a condom and during the second occasion he did not
do so. Accused 2 alleged that Prudence implicated him because he did
not
want to take responsibility for her alleged pregnancy.
Findings
[68]
It was never disputed by the accused that the crimes relating
to the first and second incidents were indeed committed. Their
defence
was at all times that they were not present. Therefore, the
identity of the perpetrators was the only real dispute.
[69]
I have applied the cautionary rules applicable to evidence
regarding identification and in those instances where the evidence
constitutes
that of a single witness. The witness’ testimony
over the identity of the accused is corroborated by other evidence to
which
I shall refer below.
[70]
I deal first with Count 12 - the unlawful possession of a
firearm. Accused 1 alleges that Constable Mlimi gave the firearm to
him
to keep because Constable Mlimi was drunk. I reject this version
outright. I do so because Accused 1 put it to the witnesses that
Constable Mlimi gave his weapon to Accused 1 on 1 May 2015. This
would therefore mean that somebody else fired Constable Mlimi’s
weapon at the scene of the first incident for the spent cartridge to
be left there. This is so improbable that it is false. Moreover,
even
if Constable Mlimi gave his weapon to Accused 1, Accused 1, on his
own version does not have a licence to possess that firearm.
[71]
I now turn to the other counts.
[72]
In my view, the State proved that Constable Mlimii’s
house was broken into. The housebreaking was not disputed by the
accused.
Accused 1 admitted that he was in possession of Contable
Mlimi’s firearm. I find that he broke into Constable Mlimi’s
house and stole his forearm for there can be no other finding on the
available evidence.
[73]
Accused 1 is linked to the first incident not only by the
direct evidence of Zanele, Nighty and Prudence but also with the
spent
cartridge that was found on the scene. The cartridge was fired
by Constable Mlimi’s firearm. Constable Mlimi’s firearm
was found in Accused 1’s possession. There can be no other
finding that Accused 1 was on the scene of the first incident.
The
direct evidence of the three complainants in the first incident is
therefore corroborated by the ballistic evidence and Accused
1’s
own version as put to Constables Mnisi and Mlimi. I therefore find
that Accused 1 was present at the scene of the first
incident.
[74]
Accused 2 is linked to the first incident through the evidence
of Zanele, Nighty, Prudence and Mr Malethe as well as the DNA
evidence.
I have no reason not to believe Mr Malethe’s evidence
that Accused 2 sold Zanele’s cell phone to him. Zanele’s
cell phone was with her on the night of the first incident. She
testified that Accused 1 took her cell phone. The DNA evidence
links
Accused 2 to Prudence. Accused 2’s DNA was extracted from
Prudence’s perineum which is the triangular area of
the
genitals.
[75]
With the presence of both accused on the scene of the first
incident, I have to consider whether or not the accused are guilty of
the offences house breaking, robbery, rape, compelled rape and
attempted murder.
[76]
With regards to the house breaking count (Count 2), Zanele and
Nighty’s version is corroborated by Zadile and Prudence’s
versions. I therefore find that both accused broke into Zandile’s
property during the first incident. I also have no hesitation
to find
that Zanele was robbed of her cell phone by Accused 1. Having made
this finding, there is also no other finding to make
but that Accused
2 was a co-perpetrator in the robbery of Zanele’s cell phone
despite her evidence that it was Accused 1
that took her cell phone.
Accused 2 sold the cell phone to Mr. Malete. Both the accused broke
into Zandile’s home and the
accused were co-perpetrators in the
robbery of Zanele’s cell phone.
[77]
In respect of count 3, I have no reason not to believe
Zanele’s evidence that Accused 1 had raped her. Zanele was a
good witness
and was able to clearly and concisely relate the events
of the first incident.
[78]
In respect of Count 4, in terms of which the State alleges
that both accused compelled Henry to commit and act of sexual
penetration
with Zanele, I accept Zanele and Nighty’s evidence
that both accused compelled Henry to have intercourse with Zanele on
two
occasions. The accused were charged with compelled rape under
Section 4 of the General Criminal Laws Amendment Act (Sexual Offences
and Related Matters) Act 32 of 2007 (“the Sexual Offences
Act”). On this charge, the evidence of Zanele and Henry differ
in one important respect. Zanele testified that Nighty penetrated her
on the second occasion. Nighty on the other hand, testified
that he
did not penetrate Zanele at all because he could not have an
erection. I believe Nighty’s evidence as he is the person
who
would be in the best position to confirm if he succeeded in
penetrating Zanele.
[79]
The circumstances of the two incidents of compelled rape as
established through Zanele and Nighty’s evidence prove that
both
accused attempted to compel Nighty to have intercourse with
Zanele. In terms of the provisions of Section 55 of the Sexual
Offences
Act, an attempt to commit a sexual offence constitutes a
crime. Compelled Rape is an offence under Chapter 2 of the Sexual
Offences
Act. In terms of Section 1 of the Sexual Offences Act,
compelled rape is a sexual offence. I find that both accused
attempted
to commit compelled rape as contemplated in Section 4 read
with Section 55 of the Sexual Offences Act. They forced Nighty to
have
sexual intercourse with Zanele. It would be inconceivable to
make another finding just because Nighty, under the circumstances,
was not able or willing to perform sexual intercourse with Zanele.
[80]
In respect of Count 5, the rape by both accused of Prudence, I
have no reason to reject Prudence’s evidence. She was an honest
witness who was able to relate her version clearly and concisely.
Accused 2 was on the scene with Accused 1. I reject Accused 2’s
version that he had a relationship with Prudence prior to the first
incident as a lie. Accused 2’s version was an afterthought
when
it dawned upon him that he would not be able to controvert the DNA
evidence linking him to Prudence. Even if I had no choice
but to
reject Prudence’s evidence that Accused 1 also raped her, it
would not justify an acquittal of Accused 1 on Count
5. Accused 1
actively took part in Prudence’s rape and in the first
incident. He is a co-perpetrator and therefore liable
for conviction
with Accused 2.
[81]
With regards to Count 6, the only evidence that was tendered
by the State was that Prudence heard a shot fired from inside the
house
and the evidence of both Nighty and Zanele that they also heard
a gunshot that was fired. On this evidence I am unable to find that
the accused attempted to kill Prudence with a firearm. The facts
proven do not establish any competent verdict to murder.
[82]
In respect of Counts 7 and 8, the robbery of Mr. Mnisi and Mr.
Mashego, I have no reason not to believe their evidence. Accused 1
is
connected to these crimes through Mr. Mnisi and Mr. Mashego’s
cell phones that was found in his possession the night he
was
arrested by Constable Mnisi and Constable Mlimi. As aforesaid, a
cartridge fired by Constable Mlimi’s firearm was
found on
the scene. I therefore find that Accused 1 robbed Mr. Mnisi and Mr.
Mashego of their cell phones through the use of a
firearm, therefore
constituting aggravating circumstances as defined in Section 1 of the
Act.
[83]
In respect of the attempted murder count against Accused 1
(Count 9), the only evidence the State presented was the evidence of
Mr. Mashego. Mr. Mashego testified that he saw a flash from the
firearm to his left-hand side while he was facing Accused 1. In
my
view, this evidence does not establish that Accused 1 fired the
firearm in Mr. Mashego’s direction with the intention
to kill
him. I am therefore unable to find that Accused 1 intended to kill
Mr. Mashego by shooting in his direction with a firearm.
Also, in
this instance, the facts proven do not establish any competent
verdict to murder.
[84]
In respect of count 10, I accept the evidence of Prudence M
that after she was ordered to lie down by accused 1, accused 2
appeared
on the scene and that both accused forced her to go with
them. I accept her evidence that the accused both had weapons in
their
possession. I also accept her evidence that she was forced to
accompany the accused. I therefore find that both accused unlawfully
and intentionally deprived Prudence M of her freedom of movement by
taking her by force at gun-and knife point to go with them
against
her will.
[85]
In respect Count 11, I accept Prudence M’s evidence that
the accused had sexual intercourse without her consent on two
occasions
in the room she was taken to by the accused. I have no
reason not to accept her evidence. I reject Accused 1’s version
(which
was not confirmed under oath) that he and Prudence M had a
relationship and that the intercourse between them was with her
consent.
How else would Accused 1 have explained his DNA in Prudence
M’s vaginal vault. I also find that Accused 1 raped Prudence
twice during the second incident.
[86]
Accused 1 is found guilty as charged in respect of Counts 1,
2, 3, 5, 7, 8, 10, 11 and 12. In respect of Count 4, Accused 1 is
found
guilty of attempted compelled rape as contemplated in Section 4
read with Section 55 of the Sexual Offence Act. In respect of Counts
6 and 9, Accused 1 is found not guilty.
[87]
Accused 2 is found guilty as charged on Counts 2, 5 and 10.
In respect of Count 4, Accused 2 is found guilty of attempted
compelled rape as contemplated in Section 4 read with Section 55 of
the Sexual Offence Act. In respect of Count 6, Accused 2 is
found not
guilty.
JH Roelofse
Acting Judge of the High Court
APPEARANCES:
FOR THE
STATE:
Mr. Mashele
FOR ACCUSED
1:
Mr. Mabilane
FOR ACCUSED
2:
Mr. Mashego
DATE OF
HEARING: 5 November
2018 to 9 November 2018
12 November 2018 to 16 November 2018
DATE OF
JUDGMENT: 16 November 2018