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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION MIDDELBURG (LOCAL SEAT)
CASE NO: CC 17 2024
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
27/05/2026
DATE MANKGE M.T
SIGNATURE
In the matter between:
SIMPHIWE XOLANI MKHWANAZI THE ACCUSED
And
THE STATE
JUDGMENT
MANKGE J
[1] The accused herein is Mr. Simphiwe Xolani Mkhwanazi a n adult male who has been
charged with different counts totaling to 10 in number. In the charge sheet the State in
most of these charges , is relying on the provisions of section 51 of the Act 105 of
1997.
[2] The accused initially pleaded Guilty to all the charges and later changed his plea s to
those of Not guilty, as a result his pleas in all the charges were changed to pleas of
Not guilty in terms of section 113 of Act 51 of 1977.
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[3] There was no explanation tendered by the accused in all the counts, but placed on
record the accused defence as follows:
3.1 On count 1 to 4, the accused placed on record that he denies all allegations
against him, he admitted that he was in the company of E[...] D[...] at the
tarven, but he left her there and that he does not know what happened
thereafter.
3.2 On count 5 to 6, the accused also denied all allegations against him.
3.3 On count 7 to 8, he denied all allegations, and pleaded that he did not rob the
complainant, he also did not rape the victim, he does not even know both these
complainants.
3.4 On count 9 to 10, he denied all the allegations and pleaded that he did not rob
and rape the victim.
[4] The State served the defence with the statements and documents i n terms of section
212 and 213 of the Act, the documents are attached on the record of the proceedings
and are marked as exhibits A-S were handed in by agreement.
[5] The defence admitted all the documents as well as the statements and their contents.
Mr. Mavhasa further placed on record that there will be no need for the State to lead
evidence on the said statements.
[6] After all the above formalities the State started leading evidence to support their case.
The evidence from both the State and defence will be paraphrased in this judgment
as same are clearly contained in the record.
[7] The first witness for the State was S[...] P[...] H[...], who testified that she is a resident
of Ezamokuhle Amersfoo rt. On 7 August 2021, around 2am she was asleep at her
parental home, she was sleeping together with her mom and her younger brother in
one bed.
[8] Whilst sleeping like that she saw the accused (pointing at the accused and calling him
“this boy”). The accused at the time had a knife in his possession, when they wanted
to scream, as they woke up the accused ordered them to keep quiet saying he
insulted them telling them they were making noise.
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[9] The accused was holding her uncle with one hand and the other hand which had a
knife was around her uncle’s neck . The accused then asked her whether she was
S[…], and she confirmed.
[10] The accused ordered her to come out of the bed where she was, she complied, and
he ordered her uncle to go inside the bed , the uncle also complied, he pulled her into
the kitchen , pulling her by hand. When they reached the kitchen, and when the
accused wanted to unbutton her trousers, she screamed for her mother , and her
mother looked at the accused and told the accused that whatever he wanted to do to
her child, he must rather do it to her. Her mother was still in the bedroom but because
there was no door, the mother could still see the kitchen from where she was, as it
was directly opposite the bedroom they were in.
[11] The accused ordered her mother and uncle to cover themselves with the blankets. He
then grabbed her and pulled her back to the same bedroom where the mother and
uncle were.
[12] The knife was continuously in the accused’s hand. The accused first hit her with the
handle of the knife on her side of the knife, causing her to kneel, she complied, at that
time the accused had already t aken out his penis . The accuse d proceeded to order
her to perform a blow job on him , she complied, after some moments the accused
instructed her to stand up as there was nothing she was doing.
[13] He then instructed her to get into the bed where her mother and uncle were, he
wanted to do a dog styl e on her, he continued to penetrate her, after that he further
instructed her to lie on the same bed. He proceeded by penetrating her from the back,
continued to have sex with her. She complied with the accused instructions as she
was scared.
[14] When the accused finished, he demanded their cellphones, the accused further
demanded money, he told them that if the money is not enough, he will stab them. It
demanded money, he told them that if the money is not enough, he will stab them. It
was at that time that her mom directed her to go and get the money in the kitchen. He
pulled her to the kitchen , when they got there, she took out the money where her
mother directed her and gave the money to the accused. He ordered them to cover
themselves with blankets and he left. When they woke up, they went to report the
incident at the Amersfoort police station. The police took her for examination at the
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hospital.
[15] She saw the accused face clearly, and she testified that the lightning was provided by
a mass-light which is outside their home and it illuminates light into the bedroom and
the kitchen. She was with the accused estimating the total of 15 minutes.
[16] She testified that she was in grade 10 , her birth certificate was handed in, recording
her date of birth to be 14 September 2004. In 2021 she was 16 years old, she was
going to turn 17 in September.
[17] She testified that she did not consent to sexual intercourse with the accused, she did
not know him prior to the accident. And when asked why she was referring to him as
“Lomfana” (This boy) she stated that it is because she does not know his name at all.
[18] There was no cross-examination of this witness at all . Mr. Mavhasa for the defence
asked this court to confirm this fact with the accused which the accused confirmed
that he did not have any questions as per the accused instructions.
[19] The next witness was Celumusa Emmanuel Mbatha, who testified that he is the
resident of Dagakraal no 3, he knows a place called Etsha nini tavern. He was at that
place on 4 August 2023 around 19h00. He was in the company of Sbongiseni
Hlatshwayo, his friend.
[20] Whilst they were at the said tavern , an unknown lady asked to join them where they
were drinking. He testified that he was seeing this lady for the first time in that area.
The lady joined them and they proceeded to drink in this lady’s company.
[21] The accused arrived and he asked for a cigarette, he knew the accused before that
day, as they live in the same neighborhood. After the accused ’s arrival Sibongiseni
left the tavern, when Sbongiseni left he was left with the lady and the accused at the
tavern.
[22] They proceeded to drink together but he later left the accused and the lady inside the
tavern went and warmed himself outside where there was fire. He stayed outside for
tavern went and warmed himself outside where there was fire. He stayed outside for
some time, and when he entered the tavern again to buy more beers the accused and
the lady were no longer there.
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[23] He had initially left the two of them inside the tavern , and at the time they were the
only two inside except for the bar tender Njabulo. When he enquired from Njabulo the
whereabouts of the accused and the lady, Njabulo informed him that they left
together. He then went back outside to the fire.
[24] That was the last time he saw them, around Monday or Tuesday there was a notice
on the tavern notice board that the same lady is missing. In the notice there was a
photo of this lady, and he testified that was the lady that he left in the company of the
accused.
[25] Between Wednesday and Thursday he met the accused in the street, and when he
asked him about the whereabouts of the said lady, the accused denied knowledge of
the lady, he then went further to inform the accused that “there is nothing that is
hidden which will not be revealed”.
[26] When photos were shown to this witness on photos 35 and 36 the witness identified
the skirt that had been worn by the deceased on the day he was with them at the
tavern. This witness also upon being asked about the graveyard at Number 3 he
testified that, he stays 2 minutes’ walk from the said graveyard, he also confirmed that
the accused also stays close to the said graveyard.
[27] Mr. Mbatha is one of the few State witnesses which were cross-examined by the
accused. In doing so the accused conceded that he was with the witness and the
deceased at the tavern, but he stated that he left the witness and the deceased still
drinking and that was the last time he saw the deceased. This proposition was denied
by the witness. That was basically the only issue that the accused raised with this
witness.
[28] This witness upon being asked to clarify the relationship between him and the
accused, he told the court that the relationship was fine, and they have known each
other for more than three years. Mr. Mbatha further told the court that the reason he
other for more than three years. Mr. Mbatha further told the court that the reason he
told the accused the word that what is hidden will be revealed it is because he did not
believe the accused’s version that he left the tavern using a different gate from the
one that was used by the deceased.
[29] Mbatha stated that there were only two gates, and that if the accused did not use the
gate that was allegedly used by the deceased, he could have only used the gate that
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he was standing on, and he would have seen the accused exiting if he used that gate,
but he did not.
[30] The next witness for the State was Sbongiseni Hlatshwayo, who testified that , on 4
August 2023 he was at Etshanini Tavern around 19h00 . He went with Celumusa to
drink. They purchased their beers and there was a lady who was inside the taver n
drinking. The lady then approached them and asked them if she could join and drink
with them.
[31] After some time and while they were still drinking the accused arrived and joined
them. He soon left them at the tavern to go and visit the mother of his child. When he
left the tavern he left the accused, the deceased drinking together with Celumusa.
[32] He knew the accused before the day as a neighbor and when they are at drinking
places they do drink together.
[33] This witness was cross -examined and only one question was posed to the witness.
The accused denied that the witness left him at the tavern with the deceased , of
which the witness insisted he left the accused with the deceased together with
Celumusa when he left the tavern.
[34] The next witness was Njabulo Lincon Twala, who testified that on 4 August 2023 he
was working at Etshanini Tavern as a bartender. He testified that he saw the
accused, Sbongiseni and Celi, drinking together with an unknown lady.
[35] He testified that at some stage many people went out of the taver n to warm
themselves in the fire outside as it was cold that night. Amongst the people who left
the tavern was Sbongiseni, whilst the accused and the deceased remained behind in
the tavern. He, however, realized after a short while that there was no longer anyone
in the tavern and it was a bit late. The accused and the deceased had also left the
tavern.
[36] Twala was shown photo s 35 and 36 from the exhibits, and he confirmed that the
person he was being shown was the unknown lady that was with the accused at the
tavern. There was no cross-examination for the witness.
tavern. There was no cross-examination for the witness.
[37] The next witness for the State was Menzi David H[...], who testified that he stays at
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Zamokuhle, and that S[...] H[...] complainant in count 9 & 10 is his niece. They stay in
one yard.
[38] He testified that on 6 August 2021 at around 2 a.m. he was in his room sleeping
alone, when he was woken up by the person who w as attempting to open his house
window.
[39] He saw the accused carrying a knife, who then informed him that he was looking for
his girlfriend there. He testified that the accused then proceeded to open the kitchen
door forcefully with the knife he was carrying. He then instructed him to show him
where S[…] was sleeping. He showed him the room. The accused ordered S[…] to
wake up and get off the bed, whilst at the same time he ordered him to go into the
bed where Sne had been sleeping and sleep in the bed where her sister and nephew
were still sleeping at the time. There was no cross-examination
[40] Upon being question H[...] told the court that, he knew the accused only by sight . He
also confirmed that the accused on that night , he raped his niece (S[...]) in his
presence and in the presence of his sister (the complainant’s mother).
[41] The next witness for the State was M[...] I[...] H[...] , she testified that she was the
mother to the victim in count 9 and 10, and Mr. M[...] H[...] is her brother. On the day
of the incident, she was with the complainant.
[42] She testified that , when the accused demanded money from them at knifepoint, she
directed her daughter S[...] to go and take the money which she had kept in the
kitchen, and her daughter gave it to the accused person as he was demanding it. She
testified that the money was R500-00 and some few rands.
[43] She also confirmed to the court that the accused raped her daughter in her presence,
and that she saw when he was raping her , but she could not assist as the accused
had a knife on her daughter’s neck.
[44] The State was in possession of a statement in respect of count s 1-4, the contents
[44] The State was in possession of a statement in respect of count s 1-4, the contents
discussed with the defence, that they will admit the statement and the contents of this
statement to be true and correct. Exhibit “T”. This was a statement by the police
officer who was present at the scene when the deceased ’s body was discovered and
retrieved from a shallow grave at Daggakraal No. 3 cemeteries, and in the presence
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of Mr. Nhlangulela (the deceased’s husband).
[45] The State placed the contents of this statement on record. The accused confirmed
again after the statement was interpreted that it can be accepted with no need for
cross-examination of this witness.
[46] The next witness for the State was Mzukhona Phenius Nhlangulela who testified
that he is a resident of Pietermaritzburg, the deceased was her spouse. He at some
stage decided to start a family and a home in Daggakraal during 2022.
[47] He testified that in August 2023, the deceased came on a Friday to do her routine
monthly visit in their home in Daggakraal , whilst he remained in Pietermaritzburg for
work.
[48] He received a call from his son who was staying in their Daggakraal home to report to
him that the deceased did not come back since she left home . He told the court that
he found the deceased ’s behavior very strange as she has never failed to return
home in their 21 years of marriage. On 7th August he eventually requested to be
released at work so that he can go to Daggakraal and start searching for his wife.
[49] On his arrival at Daggakraal he went around searching and asking about the
whereabouts of his wife. He eventually established that she was seen on Friday at a
tavern called Etshanini and that she was there drinking with some young m en. He
further obtained information that when his wife left the tavern, s he was followed by
Simphiwe that he did not know. He then went to the police statio n as he was certain
that there were CCTV cameras in that tavern.
[50] He requested that the police accompany him to go to accused ’s place. When he
asked the police to enter that homestead, the police said they were afraid to get
inside the homestead, they then left him and went back to the police station.
[51] It took him 3 days to search, and on Friday he woke up the neighbors and they
searched again . When he was next to the big dam which was very close to the
searched again . When he was next to the big dam which was very close to the
accused place he found one shoe belonging to his wife.
[52] They continued with the search, and he eventually received a telephone call from his
neighbor, to come and see something. Upon arriving at the spot where his neighbor
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was searching, the neighbor showed him a small heap of fresh soil. There was a
visible knee under the soil , he could see the complexion of the knee that it was a
woman, and it looked like a deceased ’s skin color, next to the body was black color
underclothes. He told the court that the discovery of the body in that spot surprised
him, as when he was searching in that place 2 days ago there was nothing.
[53] They called the police before opening the so il, and the police arrived in the company
of the forensics. The forensic removed the soil , he was called and he identified the
body as that one of his wife Ellen. He testified that his wife had a cow bone inside her
mouth and she was dead. He observed that his wife had assault injuries and
strangling injuries.
[54] This whole incident affected him immensely he also had to move his son to Soweto,
as he did not have someone to look after him. This witness was also not cross -
examined by the accused.
[55] The next witness was E[...] Nomvula Nkosi who testified that , she resides at
Daggakraal. On 10 June 2023, around 20h30 she was at tavern Etshanini, drinking,
she was in the company of her friend Jabhile Mbatha who however left the tavern a
bit earlier than her.
[56] She also eventually left the tavern and arrived at her place around 22h30. On arrival
at home, she took out the key from the bag and opened the burglar, when she was
opening the door, someone grabbed her on the shoulder she turned and looked at the
person.
[57] Upon turning she saw three male persons. She saw Simphiwe who was well known to
her, she pointed at the accus ed in the dock as Simphiwe. She testified that the
accused and his friends assaulted her, she fell, they dragged her to the other spot in
the yard, a shack where she was using it to store coal. Before they dragged her on
the ground they had covered her mouth with a black cloth.
[58] They dragged her to the said shack, and whilst inside she was lying down , and after
[58] They dragged her to the said shack, and whilst inside she was lying down , and after
that she cannot remember what happened but the person she saw last when she
could see was the accused. She testified that maybe the reason she did not see what
happened after that might be because she was intoxicated and she was being
strangled.
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[59] When she woke up, she was outside the shack, and she discovered that her under
clothes were missing. Her tight pants, panty and her string that she used to tie around
her hip, as well as her cellphone were missing. When she woke up, she was naked,
she stood up and proceeded to open the door of the house.
[60] She went out and called the neighbor, and the matter was later reported to the police.
[61] The police took her to the doctor the same day she reported the incident.
[62] When asked, she testified that the accused was in front when she turned, he was the
first person who was next to her. She told the court the light ing was provided by a
light bulb in the veranda which was on at the time.
[63] Her testimony was further that , when she turned around, she saw the accused face,
head and jacket he was wearing , and it was tracksuit top black and red in color. She
also told the court that she even knows where the accused stays. She had known him
for almost 3 years, she used to see him at the tavern or when she is going to the
shops, standing there.
[64] She suffered injuries on her forehead, her neck and her lower legs. She previously
had no sexual relations with the accused. There was also no cross -examination of
this witness.
[65] The Next witness C[...] Nonhlanhla Mnisi who testified that, she stays in Amersfoort.
On 31 July 2021, around midnight she was coming from a party and walking towards
China 1. She was in company of her friend Siphesihle Msibi. Whilst walking there a
male person that surfaced, he had a knife in his possession, he asked where they
come from, and that they must go back to where they were coming from.
[66] This male person whilst still holding the knife, ordered Siphesihle to take off his Nike
sneakers, and took Siphesihle’s cellphone and he further demanded money from
Siphesihle, he had only coins in his possession and he handed them over to the man
as per instruction.
as per instruction.
[67] The said man, whom the witness later identified as the accused, then instructed
Siphesihle to run away and not look back. After Siphesihle left the accused then
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instructed her to come with him, and she complied. He took her to the walls or furrow
on the side of the road as they had been walking on the tar road. He instructed her to
hold a rock, she complied and bow and touched the rock, the accused instructed her
take off her trouser , and he proceeded to penetrate her from behind . It was Ms.
M[...]’s evidence that when the accused penetrated her, he had the knife pressed on
the side of her upper body.
[68] The accused continued to have sexual intercourse with her without her consent. She
pleaded with h im not to kill her . He also ordered her to do blowjob on him , she
complied, and after he insulted her and instructed her to leave. She ran to
Hlatshwayo’s place for assistance.
[69] When Siphesihle arrived with her brothers she related a story to him and the brothers,
who went around the area looking for the accused, but could not find him.
[70] They proceeded to the police station, she was taken to the hospital at the same time
by the police, and it was early hours of the morning at the time. She was examined by
the doctor, and she was bleeding on her private parts. Her panties were taken by the
police for further investigation.
[71] On Photos 1,2 and 3 of Exhibit P, she identified a rock and she testified it is the one
that he was instructed to hold. She did not consent to sexual intercourse. She testified
that she knew the accused and at that time he had a small dreadlocks, and she stated
that as she sees in court the accused has removed the dreadlocks.
[72] She further testified that she saw the accused clearly as, there was an Apollo light
which was illuminating , and that when she was with the accused, they were 1 meter
away from the said light, they were just under the apollo.
[73] Ms. M[...] further told the court that she is also identifying the accused with a scar in
his face, that she can still see in the dock.
[74] Ms. M[...] was cross-examined by the accused, on cross-examination the accused put
[74] Ms. M[...] was cross-examined by the accused, on cross-examination the accused put
to her that he is seeing her for the first time in court, she never met her and never had
sexual intercourse with h er. This proposition was vehemently denied by Ms. M[...]
who in turn put to the accused that, he must look at her properly and remember what
he did to her on the day he raped her. This court noted how Ms. M[...] looked when he
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was saying those words to the accused, she completely changed her look, she looked
like a disgusted person. The cross-examination of Ms. M[...] ended on that note.
[75] The next witness for the State was Siphesihle Truth Msibi, who testified that he
knew C[...] M[...] and that she was his friend. On 31 July 2021 when she was walking
with Ms. C[...] around 00h00 on the tarred road, someone emerge d from the path, he
approached them in possession of a 30cm knife. Siphesihle identified the accused as
the person in question.
[76] He testified that the accused placed a knife on his neck, and demanded his Nike
sneakers, as well as his cellphone and money. He took off his sneakers, (valued
R1500-00) and took out his cellphone as well as the coins and gave them to the
accused as he was afraid as the accused was pointing at him with a knife.
[77] Siphesihle testified also that the accused proceeded to grab Ms. C[...] whilst he was
ordering him to run and not look back, he ran towards a Hlatshwayo homestead, he
screamed asking for help from them , he later went to fetch his brothers as well and
Ms. C[...]’s brothers. They all together went back to look for Ms. C[...] and they found
her at Hlatshwayo ’s homestead. When the brothers went to search for the accused,
Ms. C[...] reported to him that the accused forced her to suck his penis and further
raped her.
[78] Siphesihle testified that he was seeing the accused for the first time on the day, but
he identified him in the dock, statin g that he is identifying him with a scar on his left
side of the face. He told the court that on the day when the accused accosted them,
he could see him clearly and that there was enough lighting which was provided by
streetlights in the tar road. He stated that he was seeing that person for the first time
and he does not know his name, but the witness pointed at the accused as that
person.
[79] According to Siphesihle th e streetlights in the tar road, were 2 metres away from the
[79] According to Siphesihle th e streetlights in the tar road, were 2 metres away from the
point they were approached by the accused.
[80] He was at the presence of the accused for about 5 minutes from the time he stopped
them until he ordered him to run away. When he instructed him to take off the shoes,
the accused was at arm’s length.
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[81] After the incident , he saw him again after a month at Khethelo , a drinking place . He
was scared when he saw him and told other people that this is the person who raped
his friend. Siphesihle told the court that the event of that day had an impact in his life
he is not feeling safe walking at night, and he was also scared that if the accused
could see him again, he might hurt him.
[82] The next witness Mpendulo Welcome Twala, a Constable and a member of South
African Police Services, attached at Crime Investigation Services at Daggakraal, and
an investigating officer of the matter where the deceased is E[...] D[...].
[83] He attended the scene at graveyard no.3, where the body of the deceased E[...] D[...]
was retrieved. On arrival at the scene, a certain spot was pointed at him by the
deceased husband, and when looking at the ground he saw a human body protruding
from the ground.
[84] They called the L ocal Criminal Record Centre in Ermelo who proceeded to dig a
shallow grave where the body was protruding, and they confirm it was human female
person who was buried there. In the mouth of the body, there was a cow bone that
was protruding as if it had been pushed to the deceased mouth.
[85] It was Twala ’s evidence that, where the body was retrieved it was not far from the
suspect’s homestead, he identified the said suspect as the accused in the dock, and
he called him by his surname Mkhwanazi.
[86] He testified that from the graveyard to the accused homestead it is about 500 meters
and one c ould see the accused home stead when one is at the spot where the body
was retrieved. Before the deceased was found she had been reported as a missing
person, and he was investigating that missing person’s case.
[87] There were witnesses who gave a statement that , the last time the deceased was
seen, she was together with the accused. After the deceased was declared dead, he
went to accused’s homestead, as he was the last person to be seen with the
went to accused’s homestead, as he was the last person to be seen with the
deceased. He knocked at his home , found the accused sleeping and next to his bed
there were clothes covered with blood. He testified that he had known the accused for
about 3 years, and when he asked him about the blood on clothes, the accused was
shaking and replied by stating that it was the blood from a horse.
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[88] He took his clothes to exhibit bag and sealed it in front of him, he then placed him
under arrest. The clothes were sealed in a bag and booked in SAP 13. There was
also no cross-examination of this witness.
[89] The next witness was Bongani Edward Khumalo, who testified that he works for
South African Police Services attached in Sexual Violence Unit, and a current
investigating officer of this case. He attended the post -mortem investigation of E[...]
D[...] on 17 August 2023, that was being conducted by Dr Kolodi.
[90] At th is post -mortem investigation, he handed to Dr Kolodi, two (2) crime kit s. Dr
Kolodi extracted samples from the body of the deceased and when he was done, he
handed back the sealed kit to him. The first crime kit was the adult sexual assault
collect kit with reference number 19D1AC8058TF, Exhibit E8, the second one was the
DNA EVID ENCE from body collection KIT 13D2AA7310TF, Exhibit E7. Also, DNA
Collection kit E9 22DBBD8255TF, (according to Khumalo this was samples that were
obtained by Const Twala from the accused ,) and was a reference sample taken from
the accused.
[91] The first Daggakraal CAS 17/08/2023 on count 1-4, there is also Exhibit G4” DNA Ref
22DBBG1763TF buccal swap taken by Mavuso from the accused (previous I/O in
another rape).
[92] The results from Forensic Laboratory, on the first 4 counts, in terms of section 212
statement by Rampela, Exhibit “F1”, on CAS 17/09/2023 which was compared with
Mkhwanazi S.X under 22DBBD8255, it was Khumalo ’s evidence that th e reference
sample matches the one found on the deceased E[...] D[...].
[93] Daggakraal CAS 15/06/2023 on count 5 -6 the reference sample 22DBBG1763,
sample exhibit G4, where the complainant is E[...] N[...] . Adult Sexual Assault J88,
Exhibit “M” Reference 20D1AA6654TF 15/06/2023 22DbbG1763 matches vaginal
swap taken on a case under Daggakraal CAS1 5/06/2023.
[94] Khumalo testified further that in Amersfoort CAS 19/08/2021 in respect of count 9 -10
[94] Khumalo testified further that in Amersfoort CAS 19/08/2021 in respect of count 9 -10
where the victim S[...] H[...] J88 marked Exhibit “R”, which refers to sample of
Mkhwanazi S .X with Ref number 21DBAC4742, these samples on Exhi bit “R” from
Amersfoort CAS 19/08/2021 also matches DNA of buccal swabs that were retrieved
from Mkhwanazi S.X.
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[95] He testified that the only outstanding results are regarding charges in count 7 where
the complainant is C[...] M[...] . A ll the other victims, the accused buccal swabs are
matching all the swabs that were retrieved from these victims. There was no cross -
examination of this witness.
The Defence Case
[96] The accused testified in his defence, his evidence like that one of the State witnesses
will be paraphrased. The accused on count 1 -4 of the deceased E[...] D[...] , he
testified that on 4 August 2023 he was with the deceased E[...] D[...]. He denied that
he kidnapped her, raped and killed her.
[97] He further denied the evidence of three witnesses and the bartender that he is the
one who was last seen with the deceased . H e testified that he did not know the
deceased prior to that day. He testified that because he knew Sibongiseni and Chili
who were with the deceased, he decided to go an d join them as they were drinking
and that is how he met the deceased and found himself drinking with her on that
night.
[98] They eventually parted ways with her when he walked out of the tavern, he does not
know what happened to her, up until he heard the following morning that they were
looking for her. He did not see her outside the tavern, he saw her inside the tavern.
[99] On count 5-6 pertaining to E[...] N[...] , he denied kidnapping her together with his
friends, he further denied raping her together with friends. He further denied being in
her house on that night at all and he told the court he never had any sexual
intercourse with her.
[100] On count 7- 8, Mr. Mkhwanazi denied raping Ms. C[...] M[...] and robbing Siphesihle of
his sneakers and his cellphone. He state d that he was not even at Amersfoort, he
however agreed that their evidence was never disputed when they testified in court.
[101] On count 9-10, he denied that on 7 August 2021, he raped S[...] H[...] at her house in
[101] On count 9-10, he denied that on 7 August 2021, he raped S[...] H[...] at her house in
the presence of her mother and uncle. He also denied that he rob bed S[...] of her
money on the day. He further testified that the lady who testified in court is not S[...]’s
mother. He however conceded that this was never disputed when the said lady
testified in court.
16
[102] On count 1- 4, (of the deceased E[...] D[...]) he stated that he does not know how his
DNA, semen was found in her vaginal area . He further conceded that specimens
were taken from him by the police, but he states he does not know why the semen
found in the deceased’s body matches that one taken from him. He told the court that
there was, however, a lady that he once slept with, and he suspect s that she is the
one who might have taken his semen and gave them away.
[103] He also does not know how his semen was found in the vagina of N[...] E[...] N[...].
[104] On count 9 -10 he does not know how his sperms were found in S[...]. He stated that
he had a relationship with her , the police even arrested him in her presence at some
stage in year 2021 . They once had sex ual intercourse , and this was during those
months after he was accosted by the community alleging that he raped her.
[105] He testified further that S[...] was her girlfriend since 2020 and they met at Mjeko’s
tavern, he stated they are no longer in a relationship, it ended in June 2021 , because
she wanted him to separate with the mother of his child.
[106] He saw her again in 2021 in winter, she came with a Forum and they started
assaulting him, he tried to run away, he was eventually saved by the police officer,
they were a ccusing him of raping her. He told the people that he had sexual
intercourse with S[...] because she was his girlfriend.
[107] Mr. Mkhwanazi proceeded to tell the court that he was once kidnapped by the people
who arrested him. He was taken to a hostel in JHB pointed with firearms and was told
about these murders and that he should admit th em and admit the stock theft cases
against him.
[108] The cross-examination of Mr. Mkhwanazi was a complex one, wherein the accused
continued to dispute that he committed the offences levelled against him. For the
reason that this cross-examination yielded only the denials I do not intend to spend
reason that this cross-examination yielded only the denials I do not intend to spend
much time dealing with each question and answer that unfolded during his cross -
examination, save to record that the accused was disputing that he committed all the
10 offences.
[109] When asked during cross -examination to cla rify whether he appreciates the
17
seriousness of the allegation against him, and why he is legally represented, he
confirms that he appreciates and confirmed that he did not tell his counsel everything.
He further confirmed that every time the witness testifies the attorney will approach
him for instruction and that still he did not cross-examine most of the witnesses.
[110] He further conceded that even on witnesses who implicated him, he was not
instructing his attorney to question those witnesses.
[111] The accused conf irmed during his cross -examination that when he was arrested on
13 August 2023, the police drew buccal swap from hi m and he stated it was done by
Const Twala, and Sgt Mavuso, though they did that on different dates. He further told
the court that Sgt Mavuso told him that he was being suspected of ra ping someone
whilst he was together with Zikhali brothers.
[112] He stated on cross-examination that he disputes that the swaps taken from him were
properly handled for testing, he mentioned that he disputes that because he knew the
people from the Skebhe forum were fighting him. He further highlighted that the forum
even came to his home and took him and his brother to the mountain to point at him
with firearms wanting them to admit something he did not do.
[113] He was asked on Count 5 and 6 whether he knew the complainant E[...] N[...] , he
confirmed, he knew her and that she was his father’s girlfriend, he confirmed that Ms.
E[...] had known him since he was young. He confirmed he knew her place, and that it
is less than 2 kilometers from his place. He confirms he grew up in front of her.
[114] On Ms. E[...]’s evidence that she was attacked on 10 June 2023 in her yard, and that
she identified h im threw an electric light in the verandah he confirmed that he heard
Ms. E[...] but stated instead that he knows her place and that there is no electricity
light outside but only inside the house. The accused further confirmed that if Ms. E[...]
light outside but only inside the house. The accused further confirmed that if Ms. E[...]
says he saw him at her home the night of the incident, she would not be making a
mistake as she knows him very well.
[115] On count 7- 8 on Ms. M[...], the accused put told the court that he used to see her in
town and is familiar with her face. When asked why he stated he was seeing her for
the first time in co urt, the accused did not have a proper answer to this. That in a
nutshell was the accused evidence and cross-examination. He called one (1) witness,
Sergeant Twala.
18
[116] The defence witness Sergeant Mpendulo Welcome Twala, confirmed that he
testified on behalf of the State. He stated that he understands that he was called by
the accused to testify on his behal f, and that he consulted with the accused and his
counsel. The less I say about the evidence of this witness the better. This witness in
my view did not give evidence that corroborate, support or favour any of the accused
versions he pull ed-up in court. Twala contradicted most of the things that was put to
him by the accused.
[117] The one example I want to highlight is when the defence’s counsel put to Twala that,
when he came to arrest the accused, he found him with hi s girlfriend S[...], Twala
disputed this, and he instead stated that the accused was lying as he was alone lying
in bed.
[118] On the assault o f the accused, Twala confirmed that the accused came to open a
case of assault but, he only knows what is contained in his statement, where the
accused wrote that he was taken by Skebhe Community Forum to Vo sloorus in
relation to stock theft cases, Twala stated that in the statement the accused wrote that
he was assaulted by this Skebhe on 2023/08/05 but he reported the case only on
2023/08/11.
The submissions (same will also be paraphrased).
[119] The State asked this court to convict the accused on all the charges are per the
indictment, and that on count 1-4 t he link against the accused lies in DNA results
semen which were extracted from labia majora of the deceas ed. The State counsel
submitted that the accused does not have an explanation of his semen found in the
body of the deceased. The State asked the court to consider that; the accused was
the last person to be seen in the presence of the deceased. The State submitted that
when DNA remain undisturbed the only inference to be drawn on the death and rape
of the deceased in count 1-4 is that the accused is the one who is guilty of committing
the offences in counts 1-4.
the offences in counts 1-4.
[120] On count 5-6, the State wanted this court to consider that the accused was properly
identified by the witness, and that the witness knew him very well even before the
incident. The accused was identified u nder an electric light, also that even though the
witness could not r emember what happened after she was assaulted and became
unconscious, the State argued that we know from proven facts that after she regained
19
consciousness, she did not have her panties on and her tight was also not in her
body. In J88 Exhibit “M” the doctor made clinical findings that she had bruises on her
face and forehead, neck, laceration on right leg, and vaginal injuries. State asked for
conviction on counts 5-6.
[121] The State also asked for conviction on c ounts 7-8 th ey were relying on the
identification of the two witnesses, Siphesihle and C[...] M[...] , submitting that the y
both identified the accused very well, and that according to the State both these
witnesses had no reason to falsely implicate the accused, and it was submitted that,
there was enough corroborative evidence that the accused perpetrated these
offences in count 7-8.
[122] On counts 9 -10, the State submitted that the evidence of both mom, un cle of the
complainant, as well as the complainant herself identified the accused as the person
who committed these crimes. The State wanted the court to consider that the accused
version that the alleged love relationship with the complainant according to the
accused own evidence it ended in June 2021, and yet the rape of S[...] took place in
August 2021, when according to the accused o wn version the alleged love
relationship had ended. The Argument was also that S[...] was the first witness to
testify and her entire testimony was not placed in dispute by the accused at all. The
State submitted that the accused should be found guilty in counts 9-10 as charged.
DEFENCE
[123] The defence on the other hand argued for an acquittal of the accused especially with
regard to counts 5 -6 of Ms. E[...]. Also, that this complainant did not even know that
she was raped, there is no explanation why her evidence was not challenged by the
accused. The defence argued further that the three others who were with the accused
might have been interested only in robbing Ms. E[...] and since there is no evidence
that they raped her, this court must acquit the accused on counts 5 -6, by giving the
that they raped her, this court must acquit the accused on counts 5 -6, by giving the
accused a benefit of the doubt.
[124] The defence acknowledged that the evidence of most of the witnesses was not
challenged. The defence conceded further that, the accused did not contradict himself
but acknowledge that he only contradicted himself on counts 1 -4, where he stated
when he left the tavern he used the different door, the contradiction is when he was
testifying when he said he left all of them at the tavern when he left them.
20
[125] The defence wanted this court to consider the accused version that his semen might
have been planted, by his ex -girlfriend who had a protection order against him, she
might have taken semen from her genitals and place it to the victims , and it was
argued that this court must find that his explanation is reasonable and possibly true to
acquit the accused.
[126] The evidence in counts 7-8 was also not contested until they said he does not know
them, it happened under high -mask electric light, which made them to see who the
perpetrator was, they even called him by name in their testimony, they both identify
him with a scar, and we say anyone can have a scar.
[127] On counts 9-10, it was submitted that the accused says S[...] was his gir lfriend and
that the accused also stands to be acquitted on these counts.
[128] After the arguments the State applied to open the State’s case to correct the evidence
on DNA regarding count 5 -6, the State wanted to make clarity about DNA results
applicable to these two counts. After the agreement the application to open the State
case was granted as this court was of the view that this will not cause any prejudice to
the accused.
[129] The new State witness was called, by agreement between the parties, it was
Ontiretse Keabaka Lorato Raph eeha, she was testifying to the document Exhibit
“F1”, she testified that on the following case files Amersfoort CAS 19/08/2021,
Daggakraal CAS 17/08/2023, and Daggakraal Cas 15/06/2023 she received case
files and DNA results.
[130] Ms. Rapheeha testified that the sample from Labia Majora was compared with
reference samples from all the cases mentioned above. The reference samples from
Mkhwanazi S.X all matched the labia majora swap obtained from victi m in Dagakraal
17/08/2023.
[131] Ms. Rapheeha also testified that, at para 5.4, of her report she noted that the same
reference sample in respect of Exhibit (b) , Mkhwanazi S .X is excluded as a donor
reference sample in respect of Exhibit (b) , Mkhwanazi S .X is excluded as a donor
from the one found in exhibits in Daggakraal 15/06/2023.
[132] Ms. Rapheeha explained to the court the possible reasons of the exclusion , I don ’t
intend to register them here as I will not be basing my finding on them, in my view
21
they were just possible reasons as viewed by the forensic laboratory analyst, I find
that it w ould be unfair to consider and used them against the accused, when Ms.
Rapheeha mentioned them as just possibilities.
[133] In respect of Count 7 and 8 Amersfoort CAS 90/07/2021, She confirmed that the
document was done by her. She also analyzed the case files and DNA results. He
stated in Amersfoort 90/07/2021, there was no DNA obtained from the swaps , and
that what was extracted was not meeting the requirement for the purposes of
analyzing and matching. She stated that she attributes this to the offender maybe not
ejaculated or the offender having maybe used a c ondom or it could have been limited
physical contact. There was no cross-examination of this witness.
[134] Ms. Rapheeha confirmed that she is the author of the report and that it is true and
correct.
[135] After this witness evidence the defence did not opt to open their case, no r to make
any submissions. Mr. Mavhasa only asked the court to acquit the accused on counts
5-6.
[136] The state argued that the accused is guilty with respect to the counts relating to E[...]
N[...], and that the accused was identified as one of the assailant s, he was part of the
group who assaulted her. The State argued further that the evidence in terms of
Exhibit “M” establish that she was penetrated, and she later found herself without
panties, also that she suffered vaginal injuries. The State also argued that the doctor
who examined her also concluded that she suffered forceful penetration and that the
court can conclude that there was penetration without consent.
[137] In arguing c ommon purpose , the State relied on S v Tshabalala, a Constitutional
case on common purpose, as well as the case of Mosia v the State another
Constitutional case. The State argued that this court must also consider that the
accused did not withdraw from the plan with his friends, if he withdrew before the rape
accused did not withdraw from the plan with his friends, if he withdrew before the rape
happened, he failed to tell the court when testifying in his defence , and that if anyone
tells the court that he withdrew this will be pure speculation.
Discussion
22
FACTS WHICH ARE COMMON CAUSE
[138] The following facts were common cause:
• The accused had sexual intercourse with S[...] H[...];
• The accused knew Ms. E[...] N[...] before the day of incident, 10 June 2023;
• The accused was together with the deceased Ms. E[...] D[...] at Etshanini
tavern and two others on 04 August 2023.
FACTS WHICH WERE IN DISPUTE:
[139] The following facts were placed in dispute:
• That the accused is the one who committed all the offences as outlined in the
indictment. The accused disputed committed the kidnapping, rape, murder and
hiding the body of the E[...] D[...] in a shallow grave , thereby allegedly
defeating the administration of justice.
• That the accused kidnapped and raped N[...] E[...] N[...].
• That the accused raped C[...] M[...].
• That the accused committed robbery against Siphesihle Msibi.
• That the accused raped and committed robbery against S[...] P[...] H[...].
BURDEN OF PROOF:
[140] The above at paragraph 142 are the only point s that remains in dispute, the rest of
the things having been fallen off the lis t, after the defence admission (not formal
admissions I must stress) The accused did not make any formal admissions in this
trial, but the defence admitted all the statements in terms of section 212 and section
213 of the Criminal Procedure Act, as well all the documentary evidence that were
submitted by the State. The admission incorporate content in these statements and
documents.
[141] Mr. Mavhasa unambiguously placed on record that there will be no need for the State
to lead evidence on the said statements , even though the State on its own decided to
call one forensic analyst towards the end of the trial to clarify one point which the
State was of the view that it needed clarity.
[142] It is trite that in criminal prosecutions the onus to prove the guilt of the accused
beyond reasonable doubt rests with t he State. Equally trite is the legal principle that
beyond reasonable doubt rests with t he State. Equally trite is the legal principle that
there is no burden upon an accused to prove his innocence.
23
[143] When it comes to the accused, all that is required is that the accused explanation be
reasonably possibly true. S v V 2000(1) 1. Also, in S v Sithole 2 the court stated as
follows (which I subscribe to) “ There is only one test in a criminal case, and that is
whether the evidence establishes the guilt of the accused beyond reasonable doubt.
The corollary is that an accused is entitled to be acquitted if there is a reasonable
possibility that an innocent explanation which he has proffered might be true. These
are not two independent tests, but rather the statement of one test, viewed from two
perspectives”
[144] It was this court’s duty to evaluate all the evidence holistically , in this regard I
reference the Supreme Court of Appeal decision when it emphasized the proper
approach to be adopted in Mia v S 3 where it was held , “The proper approach in a
criminal case, is that evidence must be considered in its totality. It is only in doing so
that a court can determine if the guilt of an accused person has been proved beyond
reasonable doubt”.
[145] I also want to reference the principle on the approach, which in my view, the Supreme
court of Appeal in Mia was emphasizing 10 years after. T hat the correct approach to
the evaluation of evidence as stated in S v Van der Meyden 4 is: “The proper test is
that an accused is bound to be convicted if the evidence establishes his guilt beyond
a reasonable doubt, and the logical corollary is that he must be acquitted if it is
reasonably possible that he might be innocent. The process of reasoning which is
appropriate to the application of that test in any particular case will depend on the
nature of the evidence which the court has before it. What must be borne in mind,
however, is that the conclusion which is reached (whether it be to convict or acquit)
must account for all the evidence. Some of the evidence might be found to be false,
some of it might be found to be unreliable, and some of it might be found to be only
some of it might be found to be unreliable, and some of it might be found to be only
possibly false or unreliable but none of it may simply be ignored ”. It is important to
reiterate that this burden of proof which was on the State did not denote “ beyond
every shadow of doubt” (S v Ntsele 1998(2)SACR 178(SCA))
[146] It is clear in this matter that the accused did not place in dispute most of the issues
that were testified to by the State . To this end, the defence placed on record that
1 SACR 453 SCA at 455.
2 1999 (1) SACR 585 (W).
3 2009 (1) All SA 447 (SCA) at para 12.
4 1999 (1) SACR 447 (W).
24
there would be no need for the State to lead any evidence regarding most of the
documents submitted.
Counts 1-4
[147] The accused throughout the trial did not cross-examine most of the State witnesses .
In respect of count 1 -4 pertaining to E[...] D[...], the accused, when cross-examining
the State witnesses, he only really denied that he was left alone with the deceased at
the tavern. That is all that he placed in dispute, and that was really the only thing
about these counts that he was stating in his attempt to disassociate himself with the
deceased.
[148] The accused’s denial was against the evidence of three people who proved through
their evidence that the accused is the last person to be seen with the deceased at
Etshanini tavern. This was the evidence of Celumusa Mbatha “ Mbatha”, who in a
nutshell testified that he left the accused and the deceased drinking together when he
went to warm himself up outside, and upon his return they were both gone, when he
enquired from the bartender, he was informed that they left the tavern together.
[149] The accused ’s denial is also against the evidence of Bongani Hlatshwayo
“Hlatshwayo”, that he left the accused drinking with the deceased together with
Mbatha. This denial was also against the evidence of Njabulo Twala “Twala” the
bartender, who testified that after Mbatha and Hlatshwayo left the tavern, the accused
was left only with the deceased, and they remained in the empty tavern drinking, but
after some time he saw them no more. There is another evidence by Twala in the
statements that were taken from the witnesses, after a missing person case was
opened, he was investigating what the bartender wrote in his statement that, when
the deceased left the tavern, the accused followed her.
[150] The medical evidence confirms that the accused was also linked with his DNA to the
sexual assault on this woman who was later found dead and her body hidden in a
shallow grave.
shallow grave.
[151] The accused’s version of disputing his DNA in the body of the deceased, is not only
improbable, it is absurd. It was noted also in one of the accused’s many versions that,
he also put up a defence that his DNA might have been implanted by his other
estranged girlfriend on the deceased. This court heard through the evidence of the
experts that this is not possible. In any event , on the improbabilities alone this
25
defence is rejected as illogical and false.
[152] The witnesses, Mbatha, Hlatshwayo and Twala gave very straightforward evidence .
They did not contradict themselves in any way when they were testifying that the
accused is the one who was last seen with the deceased before she was found dead
by her husband in a shallow grave. All three of them testified that there was no
animosity between them and the accused, in my view indicating that they had no
reason to collude and form a story against the accused.
[153] The accused, when these witnesses took the stand he even attempted to intimidate
them with his facial expressions, he was reprimanded from doing so, but even with
this, these witnesses did not contradict themselves. It was clear that they had nothing
against the accused, but only in court to tell what they observed. I found them to have
been very sincere and truthful in communicating to this court what happened. They
are all found not only to be trustworthy but also to be reliable witnesses . I have no
reason to doubt that they told the truth.
[154] In these charges 1 -4, the State do es not have direct evidence of how the deceased
was raped and killed , however , it led evidence of a circumstantial nature, in this
regard it based its case on the evidence of the witnesses as mentioned above.
[155] The state relied on this evidence in persuading this court to draw as the only
reasonable inference that the accused is the one who kidnapped, raped and killed the
deceased, and that t he accused also obstruct ed justice by hiding her body in a
shallow grave.
[156] The circumstantial evidence in this case supports the establish ed facts which I
highlighted above through the scientific evidence (DNA results), evidence of Mbatha,
Hlatshwayo and Twala. The only inference to be drawn from this is that the accused
is the last person who was left with the deceased from Etshanini tavern, and that the
is the last person who was left with the deceased from Etshanini tavern, and that the
crimes of rape and murder did not happened at th at tavern (otherwise at least Twala
the bartender would have testified to this) but that it happened at a place where the
deceased was taken to without her will, hence the rape and murder that followed.
[157] The proved facts in my considered view exclude every reasonable inference save the
one sought to be drawn , that the accused is the one who committed the offences
against Ms. E[...] D[...] . This is supported by the DNA evidence which linked the
26
accused with the swabs that were obtained from the deceased by Dr. Kolodi when he
was doing post -mortem examination on her body . Same was later handed in its
sealed form to officer Khumalo.
[158] Circumstantial evidence provides a basis from which a fact in dispute can be inferred.
(Mahlalela v S5, the circumstantial evidence still needs to pass the test in R v Blom6
in which it was held that:
‘(a) The inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.
(b) The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct”
[159] In this case after considering all the evidence mentioned above, in particular that one
of M batha, Hlatshwayo, Twala and DNA evidence, as well as Mr Mkhanazi’s own
improbable version, the cumulative effect of all the items of the evidence leads to only
one reasonable inference to be drawn from the facts, and which is that Mr Mkhwanazi
is the one who kidnapped, raped, killed and hid the body of the deceased in a shallow
grave as alleged and proved by the State.
[160] In my view , the State has used the most powerful tool, (circumstantial evidence) in
proving the existence of the only issue which remained in dispute, as highlighted in
para 142 above.
[161] In this case all the relevant facts hav ing gone into the melting pot, and the only
inference that is extracted from this pot is that the kidnapping, rape and the death of
Ms Dlamini was caused by the accused. (Smit v Arthur 1976 (3) SA 378 (A)).
[162] I conclude, on counts 1 -4, by mentioning that the mere fact that the deceased was
first raped before she was murdered, only points to one conclusion that she was
forced to a certain spot so that she can be raped, proving kidnapping in my firm vi ew.
forced to a certain spot so that she can be raped, proving kidnapping in my firm vi ew.
The last thing that happened was the digging of the grave and her body hidden there
is a clear indication of well -orchestrated plan by the accused to commit the crimes of
murder and rape. I am mentioning all this to make a point that, in my view , this shows
5 (396/16) [2016] ZASCA 181 (28 November 2016).
6 1939 AD 188, at pages 202 and 203.
27
that at least the murder and rape of the deceased was not a spare of the moment
thing. It was premeditated and these facts prove this much. Accordingly, I am satisfied
that this murder is the one which should be read with the provisions of section 51(1)
as per the indictment.
[163] I am accordingly satisfied that the State have successfully proved that the accused is
the one who committed the crimes of kidnapping, rape, murder against the deceased
Ms. E[...] D[...], and that the accused is the one who hid her body in the shallow grave
where her body was discovered by Mr. Nhlangulela.
Counts 5-6
[164] What I consider next is the evidence pertaining to the charges relating to Ms. E[...]. I
choose to deal with this next for a simple reason that it also deals partly with
circumstantial evidence. In the charges relating to Ms. E[...] the State relied on both
direct and circumstantial evidence.
[165] The evidence of the complainant which is common cause was not placed in dispute
as she identified only the accused as a person that she knew when she was attacked
at her home. Her evidence is that after she was attacked, she collapsed and when
she woke up , she was naked, she was not wearing even her panties. There was
evidence (J88) and DNA evidence which proves that she was sexually assaulted. The
doctor’s observation was that “There was 9 O’clock tear and bruises in her vagina” .
The doctor also noted that this complainant had “multiple bruises on the face, neck,
forehead and laceration on the right leg”.
[166] The injuries that were noted by the doctor following early hours of an attack by the
group are also found to be consistent with the evidence of Ms. E[...] that she was
assaulted and further confirmed that she was sexually violated as contained in the
medico-Legal examination by the medical doctor on 11 June 2023. It is further noted
that the same day following a night of her attack that Ms. E[...] when making a report
that the same day following a night of her attack that Ms. E[...] when making a report
to the doctor she already , on the day registered with the medical doctor that she was
“sexually assaulted by a known person” this is contained in paragraph 5 of the said
examination report. This demonstrates that the complainant when she appeared
before the doctor for examination, she remembered well that the person known to her
was a perpetrator , and this court heard that she knew the accused amongst the
group. (emphasis underlined).
28
[167] Ms. E[...] on her own testified that she did not see any one raping her . The last time
she remembers is when she was attacked by the accused and 3 of his friends. She
testified that they dragged her to a different spot, assaulted her whilst they had closed
her mouth with a black cloth. When she woke-up, she was naked, and her items were
missing.
[168] Ms. E[...] was found to be a very frank and honest witness. She easily told the court
that she did not see the accused or anyone raping her . The last time she saw the
accused and his companions was when they were assaulting her. This court was
impressed with her honesty . She could have easily exaggerated her version, but she
chose to be honest enough to tell the court that she did not see. She was unbiased
and was not trying to blame the accused unnecessarily. She was a si ngle witness
who in my firm view gave credible testimony and proved to this court with her honesty
alone that she is a reliable witness.
[169] The picture that I have painted above proves that the evidence , if any , against the
accused and his companions is circumstantial in nature.
[170] The above having been said, I also need to state that the above common cause facts
in this matter also serve as proven facts. All I will now do is to consider whether these
facts, together with the evidence tendered by Ms. E[...] and the documentary medico-
legal evidence, (which was admitted by agreement ) including the evidence from the
accused himself, answer the question that I have highlighted on issues in dispute as a
question which must be answered in this trial. ( “Whether the accused kidnapped and
raped Ms. E[...] as alleged by the State?).
[171] In answering the above question I deem it necessary that my starting point be the
accused own evidence, or rather his version that has been presented throughout this
trial. This approach in my view will give proper context as to the conclusion that is
arrived at later.
arrived at later.
[172] The accused version (which was not presented to Ms. E[...] for her to either admit or
dispute it) is briefly that: he knows Ms. E[...] as his father’s girlfriend, and that he
knows that at her house there is no light in the verandah but only inside the house .
When this version is looked at together with the evidence of Ms. E[...] and medical
29
evidence, it confirms that the accused is known to E[...] as she testified to, and that
there was no problem with this witness identifying the accused. It also confirms that
the accused knows Ms. E[...]’s house, that is why he could testify about the lighting in
her house. Ms. E[...]’s evidence is also supported by the medico -legal examination
report where she reported to the doctor who examined her that she was sexually
assaulted by a known person.
[173] Now if we know in terms of the above facts that the accused knows Ms. E[...] and that
they actually know each other, a lso that the accused can give evidence a bout the
house of the accused , if this particular undisputed evidence is considered together
with the documentary medical evidence which says “this woman was sexually
assaulted” then the accused version that, he did not go to Ms. E[...]’s place and that
he does not know her place cannot be reasonable possibly be true.
[174] The accused’s problems with these offences committed against Ms. E[...] do not end
with the above. The accused’s problems against the evidence of the State begin, in
my view, with the accused failing dismally to challenge the evidence of Ms. E[...], as
mentioned above. The accused made up a version when Ms. E[...] was long gone,
having taken the stand and leaving without her being cross-examined by the accused.
[175] The accused, when he put up his defence later, went on to raise a defence of an alibi;
he told the court that he was not at Ms. E[...]’s house on the night she was attacked.
As highlighted above, this is found to be highly improbable when looked at against the
undisputed evidence, the accused version included.
[176] I accept that the improbability is not the sole reason for rejecting the accused ’s
version. The State , which bore the onus , proved through the undisputed evidence of
Ms. E[...] that, A: the accused was there not alone but with three other people, B: he
Ms. E[...] that, A: the accused was there not alone but with three other people, B: he
knew the accused very well before the night in question . This , whilst it was not
disputed during Ms. E[...]’s evidence, was later and spontaneously mentioned by the
accused during his evidence in chief.
[177] Ms. E[...] was found by this court to be a credible and unbiased witness. The question
is now with all the above, can it be said that the accused ’s version is reasonably
possibly true, that he was not at Ms. E[...]’s house with three others on the night in
question? The answer in my view is a clear NO. The improbabilities in his version are
so glaring and his version is untenable.
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[178] Having concluded as above, the next question is whether this court is satisfied that
the State proved the kidnapping and rape charge against the accused? In answering
this question, I proceed to consider the following: Since I have found that the accused
version that he was not at Ms. E[...]’s place is physically impossible. Also considering
the accused’s own evidence about his knowledge of Ms. E[...]. Therefore, I find that
Ms. E[...]’s identification of the accused is not questionable.
[179] There was lightning enough to enable Ms. E[...] to see the accused , whom she knew
before the night of the incident. If I accept this, I also accept that the accused was
with the three people as mentioned by Ms. E[...], and that this group attacked,
kidnapped and assaulted the complainant. As mentioned above, the accused did not
place this evidence in dispute at all during Ms. E[...]’s evidence.
[180] There is medical evidence that reveals that Ms. E[...] was sexually violated and
disclosed that she sustained a 9 O ’clock tear in her vagina, and some bruises in her
body and face. There is also undisputed evidence that her panties were off when she
gained consciousness after an attack by the accused and three others. There was
also undisputed evidence that she was dragged from a place where she was initially
attacked, to a different spot where she was assaulted until she was unconscious.
[181] Even though the scientific evidence excludes the accused as a donor of semen , the
proven facts are that he was amongst the attackers , and he in fact participated in the
attack and the kidnapping of the complainant , who was later found to have been
sexually violated.
[182] When weighing the strength and the weaknesses, the probabilities and improbabilities
of both the State and the accused’s case, I am of the view that the improbabilities in
the accused version tip the balance in favour of the State, establishing the guilt of the
the accused version tip the balance in favour of the State, establishing the guilt of the
accused beyond reasonable doubt that the accused was in common mind with the
person’s or people who had sexual intercourse with Ms. E[...] after she was
kidnapped and attacked on that particular night. The court heard from the undisputed
evidence of Ms. E[...] that she did not consent to any sexual intercourse that evening.
[183] The evidence of the accused being excluded by DNA, I apply it in the doctrine of
common purpose in the following manner . The evidence from the State is that after
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Ms. E[...] was assaulted, she was raped , and the medico -legal examination confirms
this fact.
[184] It is tried that there is no duty on the accused person to prove anything, but in this
case, where the accused is identified through undisputed evidence that he was
amongst the group that attacked the complainant at home and left her unconscious ,
and when the accused has raised a defence of alibi. The accused’s failure to provide
a plausible explanation for the proven facts left the State ’s case as the only
reasonable inference to accept. The proven facts also logically exclude every other
reasonable conclusion besides guilt.
[185] I need to mention at this juncture that, the accused counsel tried several times when
each time the witness finished the evidence in chief , to approach hi s client and
attempt to take instructions from him . This court watched with interest when each
consultation, the accused would smile at his counsel, give his response, and he would
be seen smiling and shaking his head . His counsel will then , each time after that, ask
this court to confirm with the accused whether he confirms that he has no questions ,
to which the accused will respond to the court by confirming that he has no questions
for the witness.
[186] This happened with most of the witnesses except for Mbatha (on count 1-4), Ms. C[...]
M[...] (count 7) , where only one question was put to the witness , that the accused
does not know the witness . The rest of the witnesses, the accused did not dispute
their evidence nor ask any questions from them , effectively confirming the
improbabilities in his version that he belatedly attempted to pu ll out. Thi s I have no
doubt that it weakened his defence of alibi in the case of Ms. E[...].
[187] On the charges with respect to Ms. E[...] as mentioned above , the defence in their
submissions asked this court to find him Not guilty on the charge of rape, because he
submissions asked this court to find him Not guilty on the charge of rape, because he
was excluded as the donor of the reference sample that was matched with the result
from the DNA from labia majora swab that was taken from Ms. E[...].
[188] I now highlight hereunder why this submission by the defence cannot stand , which
effectively mean s it cannot lead to an acquittal that the defence is proposing . As
mentioned above, there is undisputed evidence from Ms. E[...] that the accused was
at her house with three others on the night she was later sexually assaulted. Her
evidence was also clear that the accused was leading the pack ; he is the one who
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first approached the complainant and the first to touch her. Ms. E[...]’s evidence
proceeded to mention that the accused was actively participating together with the
three whilst she was being assaulted and dragged to a different spot. This remained
undisputed until the accused took the stand and led an inherently improbable defence
as articulated above.
[189] The accused further failed to dispute Ms. E[...]’s evidence that the accused was
amongst the people who assaulted, dragged her to a different spot in the yard, and
later found out after she gained consciousness that she had been raped.
[190] The scientific evidence also revealed that a sample was subjected to the DNA
analysis system , which matched the labia majora swab taken from Ms. E[...] a day
after her attack. The evidence from Warrant Officer Rapheeha of the Biology Section
of the Forensic Science Laboratory is that , though semen was found, it did not match
the reference swab from the accused.
[191] Officer Rapheeha gave clarity as to why this happens. She stated that, amongst other
reasons, it is possible that the offender may not have ejaculated internally or that the
condom was used, or that there was a brief action which might have been interrupted
and caused the offender not to ejaculate.
[192] Whilst the accused was excluded as a donor as per the evidence of Officer
Rapheeha, as highlighted above, the proven facts are that he attacked the
complainant together with the three other males on the night she was sexually
assaulted. There was no evidence either from the accused himself or from Ms. E[...]
that the accused dissociated himself with the group in any way ; the evidence
established the opposite inst ead that, he was leading this group when the
complainant was accosted, kidnapped and injured.
[193] When I use guidance from the Constitutional Court case of Tshabalala S Ntuli v
State (CCT 323/18; CCT69/19 [2019] ZACC 48, 2020 (3) BCLR 307 (CC) , 2020 (2)
State (CCT 323/18; CCT69/19 [2019] ZACC 48, 2020 (3) BCLR 307 (CC) , 2020 (2)
SACR 38 (CC), 2020 (5) SA 1 (CC) 11 December 2019) (“Tshabalala”), like in
“Tshabalala” case the accused and his companions acted as a ‘cohesive whole ’
entering the complainant ’s home together, approaching the complainant together,
dragging her body into the ground to a different spot after blinding her eyes with a
black cloth . It is clear in this case of Mr. Mkhwanazi , like in Tshabalala , that the
violence against Ms. E[...] N[...] was committed in a systematic pattern.
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[194] The evidence points to the fact that the attack and the dragging of the complainant to
a different spot and later raped was clearly planned by the group that was being led
by the accused. The planning and the common purpose were evidently devised
before she was accosted at her home, hence the systematic p attern. This was also
evidently formed, and the rape was executed pursuant to this prior planning, and the
group agreed to sexually assault her in furtherance of the common purpose.
[195] The fact that someone else’s semen other than the accused ’s semen was found in
Ms. E[...]’s DNA, in my view, does not exonerate the accused, who was furthering the
common purpose with three other s. The accused must have known or been aware of
the group’s mode of operation to commit the crimes at Ms. E[...]’s home.
[196] The accused did not dissociate himself from the actions of the group; he instead
subjugated the victim to being sexually assaulted, and this is clear from his conduct of
failing to dispute or contest Ms. E[...]’s evidence, where he could have easily done so
when she was still on the witness stand.
[197] The presence of the accused (leading the pack). His failure to dissociate himself with
the actions of the group, confirms that he was part of the prior agreement to commit
the two crimes, rape and kidnapping that Ms. E[...] testified to.
[198] The agreement between the accused and the group might not have been an
expressed one, but it can be inferred fro m the following: the accused ’s continuous
presence in that scene, his failure to dissociate with the group ’s actions , and the
undisputed evidence that Ms. E[...] did not consent to any sexual intercourse , that the
accused participated in all this.
[199] The above was proven beyond reasonable doubt in my view, through undisputed
evidence of Ms. E[...] and through the medical evidence supporting her bodily injuries
and vaginal examination, and the conclusion by Dr. Zulu in Exhibit “M”.
and vaginal examination, and the conclusion by Dr. Zulu in Exhibit “M”.
[200] I find, therefore, on the facts , that the kidnapping and the rape of the complainant
cannot be an independent act of the person whose DNA was linked with the swabs
taken from Ms. E[...]’s labia majora.
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[201] I align myself with the observation by the Constitutional Court in “Tshabalala” at para
[51], that “It is necessary that the relationship between rape and power must be
considered when analyzing whether the doctrine applies to the common law crime of
rape to characterize it simply as an act of a man inserting his genital ia into a female’s
genitalia without her consent is unsustainable. In instances of a group rape the mere
presence of a group of men result in power and dominance being exerted over
woman victim”.
[202] At para [54] the court further remarked as follows which I find apposite in the case
before me “The instrumentality has no place in our modern society founded upon the
Bill of Rights. . . . it ignores the fact that rape can be committed by more than one
person for as long as the others have the intention of exerting power and dominance
over the woman just by their presence in the room” (Own emphasis).
[203] The case before me is , in my view , a clear example of men having an intention of
exerting power and dominance over Ms. E[...], who was not only a woman but an
obviously vulnerable woman at the time , as she was clearly under the influence of
alcohol (as she confessed in the witness stand) , having been drinking liquor at
Etshanini tavern. The accused’s presence at her home when she was attacked and
later found to have been raped confirms that his intention was similar to the intention
of the one whose DNA was matched with Ms. E[...]’s swabs.
[204] Lastly, the Constitutional Court at para [59] stated as follows , which I also find
appropriate in the case before me , “. . . it is not only a male anatomy that is critical,
the presence of the co-perpetrators who encouraged and facilitate the commission of
the crimes is equally important”.
[205] With all the above , I am satisfied that the proven facts outlined a bove exclude every
reasonable inference, except the guilt of the accused of Rape, as well kidnapping of
reasonable inference, except the guilt of the accused of Rape, as well kidnapping of
Ms. E[...]. There is no other reasonable inference that exist s save that the accused,
by his presence and participating together with three others , committed crimes (in
particular that one of Rape) against Ms. E[...] on 10 June 2023.
On counts 7-8
35
[206] On the rape of Ms. C[...] M[...], the accused was properly identified by Ms. M[...]. She
told the court there was enough light which was provided by the streetlights, and that
they were too close to the said light s when the accused accosted her and her friend
Sphesihle.
[207] Siphesihle corroborated the evidence of Ms. M[...] in all material respects on the
identity of the accused. He also gave a first witness testimony in that when she met
up with Ms. M[...] after he came back with the assistant, Ms. M[...] reported to him that
the accused raped her, after he left the scene where he had left her with the accused.
[208] Both Ms. M[...] and S iphesihle impressed the court as witnesses . They gave their
evidence in a straightforward manner, where they did not see they were honest
enough to say so. Their evidence was not disputed by the accused (on material
issues), except that the accused denied knowing Ms. C[...], which was vehemently
disputed by Ms. C[...], who reminded the accused that he must just try to remember
well what he did to her on the day of the incident when he raped her.
[209] Ms. M[...]’s and Siphesihle ’s evidence corroborated each other on the identity of the
accused, where both testified that there were streetlights that were illuminating the
place where the accused accosted them . Ms. M[...] on the other hand testified that
where the accused raped her after Siphesihle left , there was also visibility, which was
provided by an Apollo light, which was 1 meter away from them when the accused
was raping her. Both Ms. C[...] and Siphesihle identified the accused with his features,
and they both identified the accused with a big scar on his face.
[210] The evidence of these two placed the accused at the scene where Ms. M[...] was
sexually violated, it also placed the accused at the scene where Siphesihle was
robbed of his items (Nokia 03 cellphone, Airforce Nike shoes and cash). The y both
robbed of his items (Nokia 03 cellphone, Airforce Nike shoes and cash). The y both
also gave corroborative evidence in that they both confirmed that the accused
committed offences against them whilst he was always pointing at them with a knife.
Siphesihle was no longer available during the rape of Ms. C[...], but his evidence
corroborates that of Ms. C[...] that when he left her with the accused, she was still
pointed with the knife.
[211] This evidence was also not placed in dispute by the accused, except that he only
denied knowing Ms. M[...]. I am satisfied that the State successfully proved the case
36
of Rape of Ms. M[...] and that one of Robbery with aggravating circumstances against
the accused as outlined in the indictment.
On counts 9-10
[212] The evidence of the State regarding counts 9-10 is straightforward. The accused is
not placing in dispute that he had sexual intercourse with Ms. S[...], he told the court
later that she was his girlfriend. Even though he did not put this version to S[...], the
accused repeated it when he gave his evidence in chief. It is strange that the accused
was always comfortable with this version when he was alone, but could not repeat it
when faced with the same alleged girlfriend, and in my view, this says a lot about the
accused’s realness and his trust in this version. This version will be considered later
against the probabilities.
[213] This defence cannot stand at all fronts. The accused’s own evidence is at odds with
itself, the accused himself told the court that the ‘love relationship’ with S[...] ended in
June 2021, and that was the end of their intimacy . The undisputed evidence from the
State is that the rape o f S[...] took place in August 2021 . Meaning even if for a
moment, it can be accepted that the accused and S[...] were in a love relationship, it
is clear that any sexual interaction between them beyond June 2021 cannot be a
consensual one.
[214] The undisputed evidence is also that the complainant was raped by the accused in
the presence of three other people, her mother, her uncle and her younger brother.
Two of these people testified in court and corroborated S[...]’s evidence in all material
respects.
[215] They are S[...]’s family, this court was therefore required by law to apply extra caution
when considering their evidence, which could have easily be biased due to the nature
of the relationship between them . What, however, made this court ’s job easy in this
exercise is that the accused did not dispute their evidence at all. The accused even
exercise is that the accused did not dispute their evidence at all. The accused even
failed to place his initial version, which he put up in his plea explanation when S[...]
was testifying in court. S[...] was not cross -examined by the accused at all, leaving
her testimony unchallenged.
[216] On the other hand, there was Ms. H[...] (the complainant’s mother) and Mr. H[...] (the
complainant’s uncle), who impressed this court as honest witnesses . They did not
exaggerate issues with the aim of strengthening a case against the accused. They
37
also both corroborated each other that the accused performed the rape on S[...] and
robbed her of the money wh ilst the accused was pointing a knife at her. The
complainant’s mother also confirmed that the amount that was taken by the accused
at knifepoint was an amount of R590-00. The sexual intercourse, whilst pointed with a
knife on its own , demonstrates that there could not have been any consent between
the people who are engaging in the intercourse.
[217] The accused’s defence that S[...] was his girlfriend and he had sexual intercourse with
her as his girlfriend, is found to be improbable, based on , amongst other reasons (as
highlighted above) that the accused when he entered the room where S[...] and her
mother were sleeping, he did not even know who in the room was S[...]. His first
question according to the undisputed evidence was to ask amongst the ladies who
“Sine” (sic) is. This in so many ways, verifies that the accused did not even know how
S[...] looked like. For this reason alone, his defence falls by the wayside, and it is
rejected as beyond reasonable doubt untrue.
[218] This court ’s conclusion on count 9 -10 is that the accused is guilty of rape of S[...]
H[...], and of robbing her of her cash, on 07 August 2021.
[219] After all the above have been considered I am satisfied that the State proved its case
against the accused, beyond a reasonable doubt on all the 10 charges that were
levelled against him. The accused is accordingly found guilty as charged.
____________________
MT Mankge
Judge of the High Court
Middelburg
DATE OF HEARING: 11 May 2026 – 27 May 2026
DATE OF JUDGMENT: 27 May 2026
38
For the State: Adv Lusenga
For the defence: Mr. Mabasa