Brief Summary

Criminal Law — Rape and Murder — Accused charged with rape and murder of the deceased — Accused 1 pleaded guilty to rape but not guilty to murder; Accused 2 pleaded not guilty to both charges — Accused 1's plea explanation implicated Accused 2 but was not admissible against him — State's case relied on DNA evidence linking both accused to the crime scene — Court to determine the identity of the perpetrator of the murder — Accused 2's admissions regarding the deceased's identity and cause of death acknowledged — Accused 1's confession not admissible against Accused 2 as per s 219 of the CPA.

Comprehensive Summary

Summary of Judgment

Introduction

This matter was a criminal trial in the High Court of South Africa, Northern Cape Division, Kimberley. The proceedings concerned two counts: rape and murder, with both charges framed with reference to the minimum sentence regime in section 51 of the Criminal Law Amendment Act 105 of 1997, and with the rape charge also read with provisions of the Criminal Procedure Act 51 of 1977.

The parties were the State as prosecutor and Patrick Sekgoro (accused 1) together with Elvin Alton Barends (accused 2) as co-accused. The allegations were that they raped and killed Agnes Kediemetse Phoku (the deceased) in Kimberley during the night of 29 June 2013 / early morning of 30 June 2013, with the deceased later dying in hospital on 9 July 2013.

In the procedural course of the matter, accused 1 tendered a plea of guilty on the rape count and not guilty on the murder count, supported by a written statement under section 112(2) of the Criminal Procedure Act 51 of 1977. The State did not accept the guilty plea on the basis that the admissions in the plea explanation were not consistent with the factual basis underlying the charge sheet. Accused 2 pleaded not guilty to both counts and provided no plea explanation. Both accused made formal admissions under section 220 of the Criminal Procedure Act 51 of 1977. After the close of the State case, both accused elected to remain silent and led no evidence. The court then invoked section 186 of the Criminal Procedure Act 51 of 1977 and called additional witnesses regarded as essential to a just decision.

The general subject-matter of the dispute was whether the State had proved beyond reasonable doubt that each accused was guilty of rape of the deceased and, in particular, whether the State had proved the identity of the perpetrator(s) of the fatal assault and the basis on which criminal liability for murder could be attributed to both accused, given that the case on the killing was essentially circumstantial and both accused remained silent.

Material Facts

The court treated a significant set of facts as common cause between the State and the defence. It was accepted that on or about 29 June 2013, both accused encountered the deceased walking in the street at night. It was further accepted that the deceased was attacked and dragged from the street to a bushy open veld, that she was brutally assaulted and raped, and that on the morning of 30 June 2013 she was found in that open veld mortally wounded. Two used condoms were found at the scene, and DNA analysis matched the DNA profiles of both accused. The deceased was taken to Kimberley Hospital and died on 9 July 2013.

Independent lay testimony placed a prolonged period of distress in the vicinity during the relevant night. A witness (Ms Leonard) testified that at about 22h00 she heard a woman screaming outside for approximately one hour to one and a half hours. The following morning she was called to a scene under a tree not far from her home where she observed the deceased lying there, alive but seriously injured, with visible swelling and blood, torn jeans, and her lower body exposed and partially covered.

Medical evidence described the severity and nature of the injuries and supported the conclusion that the deceased suffered a severe blunt force assault, particularly to the head. The post-mortem findings included serious head injury requiring medical intervention (including a craniotomy), fractures to ribs, fluid in the thoracic cavities affecting breathing, and later pneumonia and sepsis. The cause of death was recorded as “Head injury, Pneumonia and Sepsis”, with the infection overwhelming the deceased’s capacity to handle infection. The medical evidence further indicated that the head injuries were consistent with force such as kicking, and that after such an assault the deceased would have been unable to move far or manage bodily functions.

As to the rape, the court relied on the DNA evidence linking both accused to the condoms found at the scene, as well as medical findings consistent with non-consensual intercourse, including bruising noted around the vaginal opening and bruising recorded in the J88 (redness and bruising of the vagina and bruising of the cervix). The accused advanced no evidence to contradict this, and accused 2’s defence argument that consensual intercourse could also explain the DNA was not supported by any testimony from the accused.

A key disputed aspect, as framed by the court, concerned who perpetrated the fatal assault and whether both accused could be held liable for murder. Accused 1’s section 112(2) statement purported to implicate accused 2 as the person who initially assaulted the deceased (including an allegation that accused 2 tripped the deceased, caused her to fall, and then stomped on her head). However, the court treated this implication as not evidentially usable against accused 2, because accused 1 did not testify and because of the rule in section 219 of the Criminal Procedure Act 51 of 1977 on confessions not being admissible against another person.

Both accused elected to remain silent and closed their cases without leading evidence. The court, exercising its statutory power under section 186, called police witnesses regarding the discovery of the deceased and aspects of the investigation and arrest, including evidence that accused 1 was linked by DNA to the rape and that accused 2 was arrested after being implicated by accused 1 in a confession (while recognising the limits on using such material against a co-accused).

Legal Issues

The central legal questions the court was required to determine were, first, whether the State proved beyond reasonable doubt that each accused raped the deceased without her consent. Second, and most prominently, the court had to determine the basis on which the State proved the identity and liability of the murderer(s) given the absence of eyewitness evidence and the largely circumstantial nature of the proof relating to the fatal assault.

The dispute largely concerned the application of law to fact and inferential reasoning: how to evaluate circumstantial evidence as a whole, what inferences could properly be drawn from proved facts, and whether those inferences excluded reasonable alternatives. It also involved a value judgment in assessing whether the proved facts supported liability on the basis of common purpose and whether the requisite mens rea for murder was established in the form of dolus eventualis.

In addition, the court had to consider the implications of the accused persons’ election to remain silent, and the extent to which silence could be taken into account when there was prima facie evidence calling for an answer, in light of constitutional principles and the jurisprudence governing adverse inferential reasoning from silence.

Court’s Reasoning

The court approached the State’s case as one based primarily on circumstantial evidence, emphasising that such evidence must not be evaluated on a piecemeal basis. It applied the approach articulated in S v Reddy and Others 1996 (2) SACR 1 (A), read with the logical rules in R v Blom 1939 AD 188, requiring that the inference of guilt must be consistent with all proved facts and must exclude every reasonable inference save guilt when the evidence is taken cumulatively. The court also referenced the caution against dissecting each circumstance in isolation, drawing on the formulation in R v De Villiers 1944 AD 493.

On the rape count, the court treated the DNA evidence linking accused 2 to a condom at the scene as direct real evidence implicating him, and similarly the common cause DNA evidence implicating both accused in the sexual events. The court also relied on the medical evidence documenting bruising and findings consistent with forceful sexual intercourse without consent. In responding to the defence contention that the DNA evidence could theoretically be consistent with consensual sex, the court regarded the totality of the evidence (including the surrounding violent circumstances and medical findings) as calling for an answer. It applied the principle that where there is direct prima facie evidence implicating an accused, the failure to testify may strengthen the State’s case because the evidence remains unrebutted, drawing on S v Mthetwa 1972 (3) SA 766 (A) and S v Chabalala 2003 (1) SACR 134 (SCA).

The court also engaged with the constitutional dimension of the right to silence, relying on S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC). It treated that authority as confirming that, while an accused has no obligation to testify, a court may be entitled to conclude that evidence is sufficient to prove guilt in the absence of an explanation where there is evidence calling for an answer, depending on the weight of that evidence. In the court’s view, the State’s evidence on rape and the surrounding circumstances was of such a nature that the election by both accused to remain silent left the prima facie case unrebutted.

On the murder count, the court identified the key determination as the identity of the perpetrator of the fatal assault. It expressly held that accused 1’s plea explanation implicating accused 2 could not serve as evidence against accused 2 because accused 1 did not testify and because section 219 of the Criminal Procedure Act 51 of 1977 excludes the use of one person’s confession against another. The court nonetheless considered whether, on the proved facts and admissible evidence, liability for murder could be attributed to both accused by inferential reasoning and the doctrine of common purpose.

The court connected the prolonged screaming heard at approximately 22h00 with the common cause admission that the deceased was attacked and moved from the street to the veld where she was later found. It viewed the presence of condoms linked by DNA to both accused at the scene, together with the evidence of severe assault and the absence of any version from the accused, as supporting the inference that both accused were present during the violence, associated with it, and participated in the broader criminal enterprise. In applying common purpose, the court invoked S v Mgedezi and Others 1989 (1) SA 687 (A) and set out the requirements for liability based on active association, including presence at the scene, awareness of the assault, intention to make common cause, manifestation of association by some act, and the requisite mens rea.

The court further inferred intention for murder in the form of dolus eventualis from the nature and severity of the assault as reflected in the medical evidence. It drew on the approach in S v Van Aardt 2009 (1) SACR 648 (SCA) (with reference to S v Van Wyk 1992 (1) SACR 147 (NmS)) that intention is often proved by inference from the nature, duration and severity of an assault and the injuries inflicted, and that it is not necessary to link each blow to each injury. The court also relied on the principle in S v Phallo and Others 1999 (2) SACR 558 (SCA), referencing R v Mlambo 1957 (4) SA 727 (A), that the State is not required to close every speculative avenue of escape; it is sufficient if the evidence raises such a high degree of probability that there is no reasonable doubt based on a reasonable foundation.

In the final evaluative step, the court concluded that both accused acted with a common purpose when they attacked the deceased, removed her from the street to the open veld, raped her in turns, and left her severely injured without seeking medical assistance. From the brutality and location of the injuries, the court inferred that they foresaw the possibility of death ensuing from the assault but proceeded regardless, satisfying dolus eventualis. On that cumulative assessment, the court held that the State proved guilt beyond reasonable doubt on both counts.

Outcome and Relief

The court returned verdicts of guilty against both accused on count 1 (rape), finding that they had sexual intercourse with the deceased without her consent.

The court further found both accused guilty on count 2 (murder), holding that they murdered the deceased with dolus eventualis as the form of intent.

The judgment as provided did not include a separate order on sentence or a distinct costs order, and it concluded with the convictions recorded on both counts.

Cases Cited

S v Moses Litako and Others Case No. 584/2013 (Supreme Court of Appeal), delivered 16 April 2014.

S v Reddy and Others 1996 (2) SACR 1 (A).

R v Blom 1939 AD 188.

R v De Villiers 1944 AD 493.

S v Mthetwa 1972 (3) SA 766 (A).

S v Chabalala 2003 (1) SACR 134 (SCA).

S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC).

S v Mgedezi and Others 1989 (1) SA 687 (A).

S v Van Aardt 2009 (1) SACR 648 (SCA).

S v Van Wyk 1992 (1) SACR 147 (NmS).

S v Phallo and Others 1999 (2) SACR 558 (SCA).

R v Mlambo 1957 (4) SA 727 (A).

Legislation Cited

Criminal Law Amendment Act 105 of 1997, section 51(1) and Schedule 2.

Criminal Procedure Act 51 of 1977, sections 112(2), 186, 219, 220, 256 and 261.

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, section 3 (and related definitional and ancillary provisions referenced in the accused’s plea statement).

Rules of Court Cited

No rules of court were cited in the judgment as provided.

Held

The court held, on the totality of the admissible evidence, that the State proved beyond reasonable doubt that both accused raped the deceased without consent, supported by DNA evidence linking each accused to condoms found at the scene and medical findings consistent with forced sexual intercourse.

The court further held that, despite the absence of eyewitness evidence, the cumulative circumstantial evidence established that both accused were present during the violent attack, associated with the assault, and acted with a common purpose in the sequence of events that included abducting the deceased from the street, assaulting her, raping her, and leaving her gravely injured. The court inferred from the severity and nature of the injuries and the surrounding circumstances that both accused had dolus eventualis in respect of the deceased’s death, thereby grounding convictions for murder against both.

LEGAL PRINCIPLES

The judgment applied the principle that circumstantial evidence must be assessed holistically, not in a piecemeal fashion, and that the drawn inference must be consistent with all proved facts and exclude reasonable alternative inferences, in accordance with the approach in S v Reddy and Others 1996 (2) SACR 1 (A) and the logical rules in R v Blom 1939 AD 188.

It applied the principle that an accused’s election to remain silent does not remove the State’s onus, but where there is evidence calling for an answer, silence may leave the prima facie case unrebutted and may permit the conclusion that the evidence proves guilt beyond reasonable doubt, depending on the weight of the evidence, in line with S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC), and the treatment of unrebutted prima facie evidence in S v Mthetwa 1972 (3) SA 766 (A) and S v Chabalala 2003 (1) SACR 134 (SCA).

The judgment applied the exclusionary rule that a confession by one accused is not admissible against a co-accused, as reflected in section 219 of the Criminal Procedure Act 51 of 1977, and treated the implication of accused 2 contained in accused 1’s plea explanation as not constituting evidence against accused 2.

It applied the doctrine of common purpose (active association) as articulated in S v Mgedezi and Others 1989 (1) SA 687 (A) to attribute liability where the proved facts supported presence, awareness, association, and mens rea in relation to the collective violent conduct.

Finally, it applied inferential reasoning concerning dolus eventualis in the context of fatal assault, drawing from S v Van Aardt 2009 (1) SACR 648 (SCA) (and the cited discussion of S v Van Wyk 1992 (1) SACR 147 (NmS)), and reaffirmed that the State need not eliminate speculative possibilities but must establish guilt beyond reasonable doubt on a reasonable evidential foundation, consistent with S v Phallo and Others 1999 (2) SACR 558 (SCA) and R v Mlambo 1957 (4) SA 727 (A).

S v Sekgoro and Another (K/S 26/14) [2014] ZANCHC 16 (19 November 2014)