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[2013] ZAKZDHC 77
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S v Moyo (CC 98/12) [2013] ZAKZDHC 77 (8 August 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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CASE
NO
CC98/12
DATE
20 SEPTEMBER 2011
STATE
versus
MLUNGISI NELSON MOYO
JUDGMENT
8
AUGUST 2013
D
PILLAY J
The accused, was
indicted on three counts of rape and three counts or robbery with
aggravating circumstances on 9 September, 22
September and 2 July
2011 committed in Glenmore in Durban. The accused tendered a
plea of guilty which the State and Court
rejected because of the
ambiguity in paragraph 3 and 4 which read as follows:
“
3.1
I admit that to the facts to which I plead guilty are as stated in
the summary of substantial facts as per the indictment.
3.2
Upon my arrest, I informed the police that I was involved in the
various offences and indicated to the police my guilt
in the matter.
The police indicated to me that I can only plead guilty once all the
DNA reports had been received from Pretoria,
hence the delay in me
having to tender my plea of guilty.
3.3
In addition and upon my arrest, I had assisted the police in so far
as they required me to do so.
3.4
I had indicated to the police that at time I had committed the
offence, I was using muti and may have been influenced
by the muti to
commit the offences. Upon my arrest, the police had found muti
on my possession. I had used the muti
to find employment”.
admit, that I know my actions are both wrongful and unlawful.
In
clarification of paragraph 4, counsel for the accused responded that
the accused now knows that his actions were wrongful but
did not know
this at the time he committed the offence. The ambiguity in the
plea is patent and the Court could not accept
the plea tendered as
one of guilty. Accordingly, the Court recorded a plea of not
guilty in terms of Section 113 of the Criminal
Procedure Act 51 of
1977 (the CPA).
The
accused agreed to the tendered pleas being recorded as the S220 of
the CPA.
A[…]
N[…] N[…], aged 30 with a diploma in Catering
Management and employed at KFC testified she was returning
from work
after 19:00. As she walked along B[…] Avenue, heading to
her room, the accused approached her from behind.
He asked her
for her cellular phone which she gave to him from her pocket.
It was a Blackberry 8520. He asked her for
her handbag which
she also gave to him. He spoke Zulu like a person from
Gauteng. He carried a knife which he had bound
to the palm of
his hand with a T-shirt. He walked past Miss N[…].
She looked at a house with a view to seeking
help. Using the
knife the accused directed her to a staircase that led to Grosvenor
road, using his knife. After descending
the staircase, he
pulled her by her skirt from behind into the bushes. He walked
behind her with the knife. She asked
him whether he intended to
rape or kill her. He replied that he was not going to rape her
because he had a wife. They
went inside the bushes. They
were near the tall tower from the university which cast light upon
them.
Once
inside the bushes, he told her that he was going to rape her because
he had not tasted someone who was fat. He tore her
clothes with
his knife. He tied her wrists together in front of her using a
piece of her skirt, which was part of her uniform.
She saw his
face clearly. He told her that he knew that she was going to
the police because she was looking at him.
When she was
completely naked he inserted his penis into her vagina. He told her
to sit down. He tied her feet using her
clothing and then her
feet to her hands which passed through her knees. He took her
cash of about R140 in coins and declined
her offer of her bank card
and pins, saying that he would get caught.
He
tied her mouth using her clothing. He stood over her and
taunted her to scream. He shoved a piece of her skirt into
her
mouth and contemplated cutting of her breast or one of her feet, so
that she could not run to the police and she would starve
to death in
a while. The episode lasted about 30 minutes. He
communicated normally and showed no signs of being under
the
influence of any substance.
After
a while she managed to push out the gag and untie her feet. Her hands
were still bound. Her main concern was her two
children aged 9
and 6. Fearing that she might encounter him in the bushes, she
proceeded in the direction that was thick
with bushes and shrubs.
Using her naked body, she broke through the shrubs and eventually
merged on Grosvenor Road.
She stood in the headlights of a
vehicle that was reversing into the garage and got no help from the
driver. Another car
had passed and a woman had stopped to
help. She informed Ms N[…] that she would try and get
help for her. That
person left.
Another
two cars arrived simultaneously with the police and members of the
policing forum. Students living nearby offered
her a towel and
a skirt. One of the gentlemen that stopped gave her his T-shirt
that he was wearing as she was naked.
After making her
statement, she was taken to Addington Hospital where DNA samples were
taken and sealed. She identified the
accused at an identity
parade on 4 November 2011.
In
response to questions from the Court, she replied that the accused
did not use a condom. Her HIV test proved negative and
she was
prescribed ARV’S for 28 days. She is still HIV negative.
The
impact of this experience was that nowadays she is afraid of males
walking behind her. She tries to run from them. She
does
not trust anyone anymore. She still cries when she thinks about
the event. She cannot forget. Not a day
goes past without
her thinking about it. Anyone who mentions rape and it all
comes back. She still has scars on her
body and they are a
daily reminder of that experience. Her experience affected her
family. She informed her father
who could not look at her.
Her older sister cries for her often. After the incident, she
wore long clothing to cover
her scars. Once her son saw the
scars and enquired about them, she could not explain how they
occurred. More significantly
she testified and I quote,
“
right
now I can’t walk freely on a road, I am not a free person”.
The
second complainant to testify was T[…] B[…] M[…],
a woman, 25 years with matriculation and employed at
the time at
Clicks Rossburgh. She lived in Umbilo. On 2 July 2011, at
about 07:30 in the morning, she was walking to
work in Umbilo Park,
when the accused came alongside her. He greeted her. She
asked him his name. He replied
that he was Mlu. He had a
knife tied to his left hand with a hand towel. He approached
from her left. He had
asked her for her cellular phone.
As she reached into her pocket to take it out, he stopped her and led
her into the bushes.
After walking two or three minutes into
the bushes, he informed her that she would see a couple of bras and
handbags in the place
where they were going. On the way she saw
a large bra. He asked her for her cellular phone and she
requested that he
return her sim card which he did.
He
instructed her to strip. When she was down to her underwear, he
instructed her to remove her underwear so that he could
see her.
She asked him what he was looking for. He replied that he
wanted money. He went through her handbag
but found no money.
He tied her hands with a blanket that was in the place where he had
taken her. Then he tied her
legs together and then her hands
and legs together. He used his knife to cut her underwear.
He asked her to bend over.
She refused. He pushed her. He
put his penis into her vagina. She asked him to use a condom.
He said he had none.
He used her shirt to stuff and cover her
mouth before he penetrated her.
She
wanted to ask him whether he was HIV positive but because he had
gagged her, she was unable to speak. So she wrote the
words HIV
on the ground. He replied that he was not positive. She
motioned to him that she was. Nevertheless
he penetrated her.
He messed her work pants. He wiped himself with her sweater
which he then used to cover her eyes. He
said that he was going
to disappear and he left.
She
managed to remove her sweater from her eyes. Using her teeth,
she freed herself. She put on her pants and her sweater
and
proceeded to Southway Mall where she bought new clothes.
The
accused took her cellular phone and her watch which was cheap.
At work, her partner saw her shirt and pants and called
the police.
She saw a doctor at Addington Hospital where DNA samples were
taken from her and sealed. She also made
a statement to the
police.
The
accused communicated with her normally. He told her that she
spoke too much, that she should shut up and that she was
lucky that
he did not have his friends with him.
In
response to the Court to comment on his plea, she replied that people
who used muti do not behave in the way he had. He
was normal
and knew what he was doing. He knew that he was committing a
crime because he told her step by step what he was
going to do to
her.
The
impact of this experience was that in the month of her birthday which
was the following week, she had to take ARV’S for
the whole of
July. She could not understand why he chose her as his victim.
She has suppressed her feelings.
She was embarrassed and
wondered whether his greeting was an act of decency or a warning.
She has sleepless nights.
She had to change her workplace and
move to a different branch of the same employer. She has no
children. She was not
a virgin and remains HIV negative.
She lives in fear of men. She lacks trust in men. She
underwent counselling
at Addington Hospital.
She
recalled that the accused also stabbed her in the right hand after he
raped her. She asked him whether he intended to
rape her again
and he replied that he would not because he could see that she was a
tomboy.
The
third complainant who testified was L[…] A[…] M[…],
a woman, 30 years with a degree in BCom Economics.
At the time,
she was employed at Thulani Accounting Services.
On
the evening of 22 September 2011, she had alighted from a taxi and
was on her way home. She was walking along Grosvenor
Road, when
the accused approached her from the bushes in front of the road.
He was alone. He asked for money which
she did not have.
He was armed with a knife. he pulled her into the bushes.
He instructed her to undress. She
refused. He forcefully
undressed her down to her underwear. She requested that he use
a condo. He continued without
using one. He forced her to sit.
He threatened that he would stab her. He penetrated her vagina
with his penis.
After raping her, he tied her hands and feet
and then tied her to the bush. From her wallet he took about
R30 and her cellphone
an LG290.
Ms
M[…] heard someone calling out her name and saying that they
were in the company of the police. As she was gagged
she could
do no more than mumble. The police found her and photographs
were taken of her in the condition in which she was
found.
In
response to questions from the Court, she replied that the bruises
apparent from the photographs were caused when the accused
dragged
her for quite some distance in the bushes.
As
for the impact of this experience, she said that she was afraid of
males and became aggressive towards them, even to her brother.
So afraid had she become, that she could walk to the shop barely two
minutes away or be alone in a room. She felt hatred
within
herself. Until this incident, she used to walk freely to
friends and family but is now too afraid to step out of the
door.
She was and remains in a relationship. She was tested for HIV
and remains negative. She did not take ARV’S.
She
was not a virgin and has no children. The experience impaired
her performance at work and she eventually had to leave
work.
Her life could not be the same. She could not wipe off this
experience from her mind. Her family was sympathetic
and
comforted her. She received and continues to receive
counselling which she finds helpful. Having lost her
employment,
she had to return to the Free State to stay with her
family. She had not found employment since.
That
was the evidence of the three complainants.
The
police witnesses to testify were firstly, Warrant Officer Thathaphi
Enock Mdlalose. He testified that he was based with
the
Organised Crime Unit (OCU). On 25 October 2011, he received
information which took him to Amawoti in search of a suspect.
He was accompanied by a task force of about ten policemen. He
identified the accused by the clothing he wore for which he
had a
description. When the police ordered the accused to stop, he
started to run. The police pursued and arrested
him. Once
arrested, he was no trouble. He led the police to his room,
from where the police recovered a black leather
jacket, a black
handled silver knife, a makeup bag, a cellphone bag and a rucksack.
The items were taken to the Cato Manor
OCU Offices. The accused
was detained in Cato Manor Police Station.
The
police found no muti or strange substances in the rucksack. Under
cross-examination he was asked whether the police had
found either a
brown kitbag or a black CD pouch, he denied that they had found such
a pouch. He handed the accused
over to female Sergeant
Ngubo who was working on the matter. He did not witness the
accused admitting to the crimes to any
of the policemen nor did the
accused appear remorseful. He was in charge of the accused
after his arrest. None of the
police officers who accompanied
him and the accused, questioned the accused in his presence.
Under
re-examination, he clarified that the accused was not questioned
about his motive in his presence. In response to questions
from
the Court, Warrant Officer Mdlalose, testified that he had arrested
the accused as a suspect in two rape cases committed in
Umbilo.
The
State called two further warrant officers who effected the arrest of
the accused. They were Mervyn Terry Bishop and Sizwe
Professor
Bekwa. Both corroborated each other and Warrant Officer
Mdlalose. In response to the Court’s invitation
to
Warrant Officer Bishop to respond to the issues in dispute arising
from the accused’s tendered plea, he testified that
upon his
arrest, the accused admitted committing the two rapes for which he
was being arrested.
The
last witness to testify was the Investigating Officer Warrant Officer
Marshall Paton based at the Family Violence and Child
and Sexual
Offences Unit. He arrested the accused for the July incident in
counts five and six on 14 August 2012. Thereafter
he took over
the investigation of the September incident in counts one to four.
Following
his discussions with Captain De Beer, it became clear that the
suspect had a particular
modus
operandi
. This led to warrant
officer Paton enquiring from Warrant Officer Vera Thomas of the
Biology Unit about the DNA samples taken
in all the cases. It
is now common cause that the DNA linked the accused to all three
offences. The accused admitted
that he had committed the
offences in the presence of his attorney and declined to make a
statement. Warrant Officer Paton
was cross-examined, during
which it transpired that the accused made a confession on 27 October
2011, two days after his arrest.
Warrant
Officer Paton denied that he or any of the other police officers in
his presence, informed the accused that his plea of
guilty would not
be accepted until the DNA reports were in. He confirmed that
the accused co-operated with the police but
Warrant Officer Paton was
not able to say whether the accused regretted his actions.
In
response to questions from the Court, Warrant Officer Paton,
confirmed that the charges in counts 5 and 6 arose entirely from
police work and not from any co-operation or evidence from the
accused.
That
summarised the evidence for the State. The defence declined to
testify and closed its case without calling any witnesses.
Shall we take the lunch adjournment.
COURT
ADJOURNS
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- -
ON
RESUMPTION
JUDGMENT
(continued)
D
PILLAY J
Continuing with
the judgment, the State’s case was bolstered by the usual
admissions in terms of Section 220 of the CPA.
This allowed the
medical evidence in the J88, the chain of events relating to the DNA
and the ensuing reports to be entered as
unchallenged evidence.
Following
the accused’s admission in paragraph 3.1 of his tendered plea
and the unchallenged direct evidence of the three
complainants, I
find that the accused committed the acts for which he was charged.
Did he commit them under the influence
of any substance? His
failure to testify results in this assertion amounting to no defence
at all.
Furthermore,
all the complainants testified that he was normal. From their
evidence a pattern of planned criminal conduct
emerges. The
venue for the commission of his crimes in all three cases was the
same, that is in Glenmore on Grosvenor Street
or in its vicinity.
He knowingly took the complainants deep into the bushes. He
attacked either at about seven in the
morning or in the evening as
the complainant’s were going to or returning from work.
He chose his victims between the
ages of 20 to 30 years. He
used a knife to threaten them into submission. He tied their
hands and legs so that they
would have difficulty escaping.
He
demanded their cellphones and money. He refused to wear a
condom. He was mindful that he could get caught because
he
refused the offer of a bank card to take money out of the account of
Miss N[…]. He was also conscious that Miss
N[…]
could report him and identify him to the police and therefore
threatened to cut of her leg or her breasts, so that
she could starve
in the bushes.
His
conduct therefore amounts to a systematic method of attacking and
raping his victims, which defeats the defence that he was
acting
under the influence of any substance.
Police
witnesses also denied that he informed them on arrest that at the
time of committing the offences, he was using muti and
that he was
under the influence of muti. They also denied finding any muti
or other substance in his possession on arrest.
Did
he know at the time he was committing the crimes that he was acting
unlawfully? The evidence detailed above of his planning
and the
way he conducted himself, shows that he knew at that time that he was
acting unlawfully. Most incriminating, is the
evidence of Miss
N[…], that he was aware that she could report him to the
police. If he was not mindful of committing
any offences, he
would not have been afraid of being reported to the police.
In
all the circumstances, I find the accused
GUILTY AS CHARGED ON ALL 6 COUNTS
_____________________________________________________________
SENTENCE
8 AUGUST 2013
PILLAY
J
I went into great detail
to obtain and record the evidence of the complainant’s
witnesses. I particularly wanted to
establish what impact the
rapes had on each of them. This was also to spare them having
to testify a second time in aggravation.
I have detailed their
suffering in my judgement resulting in the conviction. The
victim impact statements I am assured by
the prosecutor confirms
their evidence in Court.
Ms
P[…] S[…], the mother of Ms M[…] also presented
an affidavit setting out the impact of the rape on her child
and on
the family. Her affidavit corroborated Ms M[…]’s
evidence of her fears and suspicions of men. She
also attests
to the fact that the rape on Ms M[…] affected Ms S[…]’s
own relationship with her husband
in so many ways. It was
difficult and uncomfortable to be intimate with him. She did
not trust him. Ms M[…],
did not trust him even
though he had been a father to her for many years. Ms M[…]
had nightmares. Ms S[…]
and the siblings would wake up
at night to comfort her and relive the horror of her experience.
Ms
M[…], was in a relationship and was to be married but that
relationship dissolved because she was having difficulty with
males.
Ms M[…] was badly injured, disfigured and bruised all
over to the extent. Ms S[…] had to take
a month’s
leave to look after her. Ms M[…], lost much weight and
has difficulty walking. She has changed
so much. Once the
lady on high heels and suits in a promising career as an economist
working for a large accountant and investment
firm, is now a
dependant in the care of the family. She cannot hold a job.
She cannot go alone anywhere and cannot
make decisions. Her
cognitive functions have declined to being almost not functional.
She is on anti-depressants and
behavioural control treatment.
She is moody and violent at times. She snaps at people when
previously she could not
even hurt a fly.
Ms
S[…] had to give up her house worth 2.2 million which was sold
for a mere 1.4 million to get rid of it in order to move
out of
Durban. It had so many bad memories. The children refused
to go out to play, even to the swimming pool.
Windows,
curtains, doors, burglar bars were always closed and they lived like
prisoners in their own house. Ms S[…]
gave up her job as
an internal medicine registrar and took up a lower position as a
Medical Officer in a rural hospital where they
feel safer. Her
daughter younger than Ms M[…], who was at the University of
Pretoria that year doing her first year
dropped out of university.
That was the impact of the rape on Ms M[…], on her family, her
mother and her siblings.
It illustrates the seriousness and
pervasiveness of this crime.
The
accused on the other hand, raised defences in the plea he tendered
but failed to dignify those defences by testifying in Court.
The Court pointed out to him and his counsel that the defence that he
“may” have been under the influence of muti did
not go
far enough. He had to show a causal connection between the muti
and his actions. Notwithstanding he still persisted
in the
defence.
He
persisted in his further defence that he made a clean breast of his
crimes to the police on arrest, that he told them that he
had
committed them under the influence of muti and that he co-operated
fully with the police. As I found that he failed to
prove that
defence and that defence. He lied and his conduct in this Court
and the way he conducted his defence reflects
those assertions.
So,
not only was there no substance to his defence from the manner in
which he conducted his defence, he not only wasted the Court’s
time in leading evidence that could have been dispensed with but also
belied any suggestion of remorse on his part which would
have been
consistent with his alleged defence. Quite telling too was the
fact that at the time of his arrest, he admitted
to only two of the
rapes. The third rape in Count five was uncovered by good
police work. Again no remorse.
Commendably,
his counsel Mr Sivakumoor, conceded that there was no substantial and
compelling circumstances. Ms Alamchand
for the State requested
that the minimum sentence imposed by the legislations be imposed for
all the crimes committed.
In
Dodo v S
2001
SACR 594
(CC), the Constitutional Court endorsed the constitutional
validly of the minimum sentence legislation. In my minority
judgment
in
MLungisi Patrick Mabaso v S
AR 250/12, a full bench decision, I likened rape to discrimination,
more specifically to racial discrimination. The United
Nations
Convention on the Elimination of all forms of Discrimination Against
Women adopted by South Africa on 15 December 1995,
notes that crimes
against women amount to discrimination.
Two
appellate decisions namely
S v Selzwedel
and Others
2000 (1) SA 786
(SCA) and
S
v Van Wyk
1992 (1) SACR 147
(NmS),
pointed out that discrimination should be considered as an
aggravating factor in sentencing.
More
recently in
S v Combrink
2012 (1) SACR 93
(SCA) and in the full bench decision of
S
v Botes
2011 (1) SACR 439
(GNP), the
Appellate Courts endorsed and applied
Selzwedel
.
Those
cases dealt with racial discrimination. This case deals with
gender and sex discrimination. Rape is a crime against
women.
It violates not only their rights not to be discriminated and their
rights to equality but also their constitutional
rights to freedom,
freedom of movement, freedom of thought, freedom to live. Rape
violates in the same way as apartheid and racial
discrimination
impeded these freedoms. These reasons reinforce the legitimacy
of the minimum sentence legislation for rape.
As
Ms Alamchand points out, tomorrow, 9 August, is a day of celebration
for women. However, the complainants in this case
are so far
from enjoying that day. For these reasons, the Court agrees
with the prosecution in imposing the minimum sentence
as prescribed.
In
imposing the sentences that are due, there is no ambiguity about this
accused and his capacity to conduct himself lawfully as
a normal
human being. There is no excuse for his actions. He has
transcended the boundaries of being human. He
is a sexual
predator and a danger to society. The order that I grant is the
following:
On
the rape counts, that is on count 1, 3 and 5, the accused is
sentenced to a term of
life imprisonment
on each count.
In
relation to the robbery counts, 2, 4 and 6, he is sentenced to a
term
of imprisonment of SEVEN (7) years on each count.
The
robbery counts shall run concurrently with the life imprisonment on
the
rape counts.
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO: CC98/12
DATE:
08 AUGUST 2013
STATE
versus
M
N MOYO
BEFORE
THE HONOURABLE MADAM JUSTICE D PILLAY
ON
BEHALF OF STATE: MS. ALAMCHAND
ON
BEHALF OF DEFENCE : MR SIVAKUMOOR
INTERPRETER
: MR MJAMBOZI
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JUDGMENT &
SENTENCE
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