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[2015] ZAGPPHC 655
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S v Nxumalo (CC94/14) [2015] ZAGPPHC 655 (5 August 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, EASTERN CIRCUIT, ERMELO)
CASE
NUMBER: CC 94/14
(1)
REPORTABLE:
YES
/
NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/
NO
(3)
REVISED.
05/08/2015
……………………
..
………………………...
DATE
SIGNATURE
In the
matter between:
THE
STATE
versus
BHEKIBUTHO
VINCENT NXUMALO
JUDGMENT
LAMPRECHT,
AJ
(05/08/2015)
Introduction
[1]
On 15 October 2008, between midnight and 01h00 in the morning, an
unknown man whose face was covered with a balaclava and a
scarf, by
unknown means
[1]
entered the house of Ms J. C. D.
[2]
at [......], Wesselton, Ermelo, while she and her two children were
asleep. She and her [….] old baby was sleeping in one
room
while her […...] old daughter KL D
[3]
slept in another room. Ms D. woke up when the man shone a torchlight
into her face, and after he had already taken her R46.00 in
cash and
a cellular phone that she had on her bedside table. He told her that
he had a fire arm in his possession but she only
saw a knife. He told
her to follow him to the dining room and undress because he wanted to
have sexual intercourse with her. She
begged him not to do that to
her as she had a very young baby with her. She begged him not to harm
them and invited him to take
anything he wanted from the house but to
leave them alone. The man then left her room and closed the door. He
went into the room
of KL D and instructed her to follow him to the
dining room and to undress so that he could have sex with her. She
abided his instructions,
also not to scream for help, because he
threatened to kill her. In the dining room he raped her before he
left. KL D then went
to her mother’s room and reported that
there was a man in the house. Ms D. then told her to lie down and
hope that they are
not harmed. After some time, Ms D. went to look
for help at the neighbours, who offered them place to sleep. KL D
then reported
to her that her private parts were painful and that she
had been raped. The police were called and KL D was taken for medical
examination
and treatment at the hospital. The DNA of the accused was
found on a swab taken from KL D’s genitals during the
examination
and the examination revealed that her hymen had two fresh
tears at the 5 o’clock and 7 o’clock positions with
slight
bleeding, which was consistent with forceful penetration of
the vagina. KL D was severely traumatised by the incident and the ARV
medicines that were administered to her to prevent HIV AIDS infection
had a very negative effect on her physique. She no longer
trusts any
man, including her uncle and father and she does not even want to
enter into any relationship with a boyfriend, although
she is already
sixteen years old today. She has trouble sleeping and coping with the
incident and still needs to receive counseling.
[2]
All of this became clear from the evidence available to the state,
which was also tendered at the trial and which saw the accused
charged with counts 4 (rape of KL D), 6 (housebreaking with the
intent to commit a crime unknown to the state) and 7 (robbery with
aggravating circumstances). At the commencement of the trial and
after plea proceedings, the accused formally admitted in terms
of
section 220 of the Criminal Procedure Act 51 of 1977 (the CPA) that
the contents of the J88 completed in respect of the Medico-Legal
Examination of KL D
[4]
were correct and also that the DNA reports were correct, namely, that
it was his DNA that was found on the swab taken from the
genital area
of KL D during the examination. His plea explanation in terms of
section 115 of the CPA is to the effect that he denied
having
committed any of the mentioned crimes and explained the presence of
his DNA in the genitals of KL D on the following basis:
He had a love
affair with Ms D. and had consensual sexual intercourse with her,
using a condom. Afterwards, so he averred during
plea and cross
examination of Ms D., Ms D. took the used condom and ‘implanted’
the semen therein into the vagina of
KL D so that he could falsely be
implicated with the offence.
[3]
During the night of 7 April 2013, an unknown person entered the room
of the deceased mentioned in count 1, T. M., an elderly
lady who had
been living there in the same house as Ms E. M.
[5]
in Wesselton, Ermelo for the past [….] years. Ms M. heard a
noise during the night as if something was being chopped. She
woke up
and went to the door to listen for any further noises. She could not
hear anything further, especially from the room of
the deceased, and
she went back to sleep. The next morning she was awoken by a tenant
at the back of the premises, informing her
that the window to the
deceased’s room was open and that it appeared suspicious,
because the single burglar bar in the window
had been knocked out.
She went to investigate. The window was indeed open and the room’s
door was locked from the inside.
Due to the height of the window, she
had to get onto a 20 litre drum standing there to peek into the room.
She saw the deceased
lying on the floor, naked, writhing and groaning
sounds that sounded like ‘He ! He !’ . She could also see
that the
keys were hanging on the inside of the door, meaning that
the door had been locked from the inside. The police were summoned
and
they entered the room through the window and unlocked the door so
that Ms M. and others could dress the deceased for her to be taken
away to hospital by ambulance.
[4]
According to the J88 report in respect of the deceased,
[6]
the contents of which were also formally admitted by the accused to
be correct, the deceased presented with a swollen face and
neck with
scratch marks on the shoulders. The medical examination also revealed
fresh bruises and tears to her genital area, which
indicated that her
vagina had been forcefully penetrated. There was also a whitish
discharge from her vagina, a sample of which
was taken for DNA
analysis.
[5]
A day or so later, the deceased died – Ms M. learned of her
demise after three days. According to the post mortem report,
which
was also formally admitted in terms of section 220 of the CPA, the
cause of death was ‘subdural bleeding right hyoid
bone
fractured’. The pathologist that did the post-mortem was called
by the court at the closure of the state’s case
in terms of
section 186 of the CPA to clarify the exact mechanism of the cause of
death as I deemed his evidence to be necessary
for a just decision of
the matter.
[7]
Dr Anthonie Marthinus Krafft testified that the deceased had bruises
on the right forehead with sub-cutaneous bleeding and also
subdural
bleeding in the same area. The hyoid bone is a horseshoe-shaped bone
in the throat between the chin and the thyroid cartilage
(‘Adam’s
apple’) and is not easily fractured. In a suspected case of
murder, a fractured hyoid is strongly indicative
of throttling or
strangulation. In this case, however, the fractured hyoid,
although indicative thereof that the deceased
was throttled during an
assault, did not cause the death. The death probably ensued as a
result of the subdural bleeding that became
too much for the brain to
handle; and, although the breathing of the deceased would have been
affected by the throttling and the
fractured hyoid, that did not
cause death in this case. The bruises on the forehead with resultant
subdural bleeding was probably
caused by blunt-force trauma and it
would appear as if the deceased was throttled and, when she did not
die as a result, the assailant
caused some or other blunt force
trauma to the head of the deceased that eventually led to her death.
It is possible that
she died two to three days after the
incident, although the Doctor could not determine an exact time of
death.
[6]
DNA material was isolated from a swab that was taken from the genital
area of the deceased and the DNA report, which was formally
admitted
to be correct, indicated that it was the accused’s DNA that was
found on the swab. It was further formally admitted
that a cellular
phone was taken from the deceased’s house during the incident
and that, during his arrest, the accused was
found in possession of
the missing cellular phone with serial number 35765501644919
mentioned in count 3.
[7]
This evidence led to the accused being charged with counts 1
(murder), 2 (rape), 3 (Robbery with aggravating circumstances)
and 5
(housebreaking with intent to commit an offence unknown to the
state). Besides formally admitting the cause of death and
the
post-mortem report, the accused formally admitted that it was his DNA
that was found in the vaginal swab that was taken from
the deceased’s
body, and also admitted the J88 Report to be correct in every detail.
As in the case of the incident of 15
October 2008, however, the
accused sought to explain the presence of his DNA in the vagina of
the deceased on an exculpatory basis,
averring that he and the
deceased had a love affair and consensual sexual intercourse at an
undisclosed time before she died. He
did however not try to explain
his admitted possession of the stolen cellular phone at the time of
his arrest.
The
trial
[8]
In relation to counts 4, 6 and 7, Mr Jacobs for the state presented
the evidence of two state witnesses, to wit Ms D. and KL
D. In
relation to counts 1, 2, 3, 4 and 5, the evidence of only one
witness, Ms M., was led. The state obviously relied on the
formal
admissions made directly after plea, together with the evidence of
these witnesses, to prove its case against the accused.
As indicated
above, I ordered that the evidence of the pathologist that conducted
the post-mortem be placed before court for clarification.
[9]
A stark feature of the trial is that, although Counsel for the
accused, Mr Mnisi, regularly consulted with the accused in court
and
during adjournments requested for that purpose, the evidence of KL D
and Ms M. was never contested during cross-examination.
Mr Mnisi did
however put the accused’s, almost hilarious version of planted
DNA to Ms D., the mother of KL D, who vehemently
denied the
averments. Same was not put to KL D who clearly and tearfully related
in her evidence that she had been raped by an
unknown male person.
Although it was put to Ms D. that she and the accused had a love
relationship and that he was surprised to
hear that the witness had a
19-day old child at the time, she vehemently denied that she knew the
accused or that she ever saw
him before. When KL D testified
that she did not know the accused and that she never saw him before
in her life and that
he definitely did not have any love relationship
with her mother that she knew of, her evidence was left uncontested
at the specific
instruction of the accused. It need be said that,
when KL D was asked to look at the accused to see whether she knows
him, she
burst out in tears before saying that she did not know him
at all. During her testimony the accused also burst out in tears and
was crying so much that his Counsel had difficulty consulting with
him. After an adjournment Counsel for accused put on record
that he
had received firm instructions from the accused not to contest the
evidence of KL D. After the witness was excused, Mr
Mnisi put on
record that the accused was not emotionally fit to continue with the
trial, but, when I asked the accused, he indicated
that he was ready
to continue. The evidence of Ms M. then followed and, although she
testified that she had been living with the
deceased in the same
house for [….] years; that she knew the deceased’s
boyfriend whom she last saw visiting the deceased
approximately two
to three months before the incident; that the accused was unknown to
her and that he was definitely not a boyfriend
to the deceased; and,
that the room had undoubtedly been broken into before the deceased
was found, her evidence was, again on
the specific instruction of the
accused left uncontested during cross-examination. The evidence of
the pathologist was also not
contested.
[10]
Surprisingly, after the state’s case had been closed and the
pathologist was excused as a witness, Mr Mnisi requested
an
adjournment until the next day so that he could consult with his
client probably with a view to bring an application for the
discharge
of the accused in terms of section 174 of the CPA. An adjournment was
refused as, to my mind, no further consultation
was required to
enable Counsel to bring the application. He knew what the evidence
was and what the chances were that an argument
could be formulated
that there is no evidence upon which a reasonable court, acting
carefully could convict the accused. I further
dissuaded him from
bringing an application of the sort, indicating that it would amount
to a waste of time since I am of the opinion
that there existed
enough evidence at that stage on which I would be able to convict the
accused should there be no further evidence
forthcoming; and, I
further challenged Mr Mnisi that, if he had the guts to with
confidence argue that there is no evidence
that could result in a
conviction, he should put his money where his mouth is and simply
close the case for the defence after which
he can present his
arguments for an acquittal – and not waste time with an
application that is almost doomed to fail. Mr
Mnisi then consulted
with the accused in court and clearly explained to him that an
application for his discharge will not be successful
and advised him
of his rights to present evidence or remain silent. Thereafter Mr
Mnisi closed the case for the accused without
any evidence in favour
of the accused.
[11]
The prosecutor immediately argued that the accused should therefore
be convicted as charged on all counts except count 6, which
he left
in the hands of the court. As far as count 7 is concerned, he
conceded that the crime of robbery has probably not been
proven and
that the accused can only be convicted of theft as the cash and
cellular phone were taken before the relevant witness
even became
aware of the thief’s presence in her room and of him being
armed and before he threatened her with violence.
Mr Mnisi however
requested an adjournment until the following morning to prepare his
closing argument. At that stage already, however,
when pushed for a
speedy finalization of closing arguments so that the court can
properly prepare judgment for the following day,
Mr Mnisi told court
that in such a case he would rather leave judgment in the hands of
the court and not address the court at all.
I therefore decided
reluctantly to grant an adjournment until today to avoid the
impression that Defence Counsel was not allowed
proper opportunity to
prepare closing argument and to address the court before judgment.
[12]
Upon resumption, and after initial confusion in Counsel’s mind
about which stage of the trial we are in, another adjournment
for
further consultation with the accused was occasioned. After some
time, on resumption, Mr Mnisi informed court that he has now
consulted with the accused and that they have decided not to address
court on the merits but to leave the judgment entirely in
the hands
of the court.
The
facts and the law
[13]
It is trite law that the onus in a criminal matter rests solidly on
the state to prove its case beyond reasonable doubt, and
that there
is no onus on an accused person to rebut the state’s case or to
convince the court of the truth of any explanation
he gives in
response to the state’s case. If, in the court’s mind
there is a reasonable possibility of the state’s
version of the
events being false or mistaken, and the accused’s version being
true, then the accused is entitled to the
benefit of the doubt and
his acquittal.
[14]
The linking of the accused to both these occasions through DNA
evidence suggests an inference that he is the person who committed
these crimes. His attempt at explaining the presence of his DNA in
the vaginas of the two victims of rape on an exculpatory basis,
especially in the case of KL D, came across as fairy-tale-like, which
even a fifth-grader would never believe in the circumstances.
There
is clear evidence that none of these victims knew the accused from
before and, therefore, that they had not on their own
laid the
charges against him that led to his arrest and trial. The only way in
which he was implicated was through the DNA evidence.
Had any of the
victims of 15 October 2008 known the accused, and, had the mother of
KL D been so callously wicked to plant semen
from a used condom in
the vagina of her young child, one would have expected them to say to
the police that they knew the culprit
so that he could be arrested as
soon as possible. The exculpatory explanation for the presence of his
DNA in the vagina of the
deceased mentioned in count 1 is discredited
by the clear and uncontested evidence that the room of the deceased
was broken into,
and that she was seriously and lethally injured by
her assailant before she was found naked on the floor, barely able to
breathe
or speak. In the face of all this, the accused exercised his
right to silence and did not testify, which is a clear indication
that he had tailored his defence after he became aware of the fact
that he was tied to both incidents through DNA evidence.
[15]
Whilst on the topic of DNA evidence linking an accused person on a
rape charge being disclosed before trial, some remarks need
be made.
In
Shabalala and Others v
Attorney-General Transvaal and Another,
[8]
Mahomed DP
[9]
held
[10]
that the possibility of an accused being able to tailor his defence
should he be allowed access to the evidence before his trial
so that
he can properly prepare his plea and defence should never be a bar to
witness statements being divulged to the defence
if requested. As a
regional magistrate with more than 30 years’ experience, who is
currently only acting as Judge in the
High Court, I have extensive
experience at trying rape cases where the accused person is linked by
means of DNA evidence. In all
cases
[11]
where the existence of DNA evidence surfaced for the first time
during the trial, the defence was invariably changed from an alibi
to
sexual intercourse with consent. In many cases
[12]
where the existence of DNA evidence was disclosed before the trial,
there were clear indications during the trial that the relevant
accused persons, as in this matter, tailored a defence of consent
while the circumstances sketched by the evidence clearly militated
against consent. In some cases,
[13]
I have encountered defence lawyers overtly or covertly refusing to
arrange trial dates before DNA results were known and, almost
invariably in such cases the defence could be foretold by the
prosecutor depending on whether the accused is linked through DNA
evidence or not. In case of the former, the defence would always be
consent, whilst in the latter, the defence would always be
an alibi
or a bare denial of sexual intercourse. A variety on the theme would
often be that the accused would admit that his DNA
was found in the
vagina of the victim because he had sexual intercourse with consent
with the victim, not on the day of the incident
but some days before,
necessitating the state to lead medical evidence to rebut this
version where it is possible for the medical
science to say how long
male DNA can remain in the vagina of a victim after deposit thereof.
[16]
I do not think that the existence or not of DNA evidence linking an
accused person with the crime of rape is a prerequisite
for him to
prepare his plea or defence. I am of the opinion that a new rule of
privilege against disclosure can be developed by
the courts (on
proper application) or by the legislature to curb the disclosure of
DNA evidence before plea and to avoid unnecessarily
lengthy trials
where the evidence against the accused is overwhelming.
[15]
I do not think that a reasonable possibility exists of the accused’s
version during plea could be the truth and that
the state’s
case could be false. To the contrary, there are clear indications
that the accused’s version is false in
every respect and it is
rejected. He remained silent in the face of credible evidence.
[16]
On the evidence and all the formal admissions only one inference is
possible as far as both instances are concerned. The accused
is the
person that broke into D.’s house on 15 October 2008 by using a
duplicate or master key or by picking the lock with
a clear intention
to rob and rape someone inside the house; that he stole the cash and
the cellular phone belonging to Ms D.; and
that he raped KL D before
leaving the house. The accused is the person that broke into the room
of the deceased on 7 April 2013
after which he brutally assaulted and
raped her and took possession of her cellular phone that was found in
his possession during
his arrest. There can be no other reasonable
inference that can be drawn from the facts and, therefore, the
well-known requirements
of
R
v Blom
[14]
have clearly been met.
[17]
As far as the two charges
[15]
of housebreaking with intent to commit offences unknown to the state
are concerned, the evidence clearly proved that the intention
of the
accused at both occasions where he entered the relevant hoses without
consent or justification was to rob and rape someone
inside the
houses. In terms of section 262(2) of the CPA he may be convicted of
the specific crimes proven, namely housebreaking
with intent to rob
and rape. As far as the robbery charge in count 7 is concerned,
however, the evidence proved that no violence
or threats of violence
were employed to make Ms D. part with her property, but that the cash
and cellular phone were taken even
before she became aware of the
intruder’s presence inside her room. A conviction of robbery
can therefore not follow.
[16]
But, in terms of section 260 (d) of the CPA, the accused may on this
charge be convicted of theft.
[18]
The accused is accordingly convicted and found guilty as follows:
Count
1 – Murder;
Count
2 – Rape;
Count
3 – Robbery with aggravating circumstances;
Count
4 – Rape;
Count
5 – Housebreaking with intent to rape and rob;
Count
6 – Housebreaking with intent to rape and rob; and,
Count
7 – Theft.
____________________________
A
A LAMPRECHT
ACTING
JUDGE GAUTENG DIVISION OF THE HIGH COURT
Representation
for the state
:
Counsel
Adv JJ Jacobs
Representation
for the accused
Counsel
Adv PM Mnisi
Instructed
by
Legal Aid South Africa
[1]
After the incident no evidence was found of
forceful entry to the house that was otherwise locked and the
complainant thought
that the only means of entry could have been
through a duplicate or master key. She later found out that the key
that she used,
with serial number Y11, was a key that was quite
commonly used by many persons. Instances of lock-picking are also
not uncommon
and, since there was no other signs of forced entry,
the only way in which the man could have entered the premises was by
the
use of a master key or a duplicate key or by picking the lock.
[2]
The first state witness.
[3]
The second state witness – now 16 years
old.
[4]
Exhibit “E”.
[5]
The third state witness.
[6]
Exhibit “D”.
[7]
In
Director of Public Prosecutions, Transvaal v Mtshweni
[2007] 1 All SA 531
(SCA) at paras [20]-[26] it was held that a
trial court has a duty to call for such evidence to be presented if
the court is
not altogether sure what the expert evidence means in a
particular case for a just decision of the matter. A failure to do
so
may, in appropriate circumstances, such as the current, even be
regarded as an irregularity justifying a setting aside of the
proceedings on appeal.
[8]
1996 (1) SA b725
(CC).
[9]
As he then was.
[10]
At para [46] of the judgment.
[11]
More than 20.
[12]
More than 50.
[13]
More than 50.
[14]
1939 AD 188
at 202-3. See also
S
v Sesetse
1981 (3) SA 353
(A) at
369-70; and
S v Mtsweni
1985 (1) SA 590
(A) at 593-4, which are all to the same effect,
namely that: an inference of guilt can be drawn on circumstantial
evidence provided
that the inference is consistent with all the
other proven facts and that no other reasonable inference is
possible save the
one sought to be drawn.
[15]
Counts 5 and 6.
[16]
E.g., see
Ex Parte
Minister of Justice: In re R v Gesa; R v De Jongh
1959 (1) SA 234
(A);
S v Makhalanyane
1980 (3) SA 425
(O) at 430A-D;
S v
Sithole
1981 (1) SA 1186
(N);
S
v Kgoyane
1982 (4) SA 133
(T);
S
v Mofokeng
1982 (4) SA 147
(T).