S v Makhakha (SS41/2012) [2013] ZAWCHC 118; 2014 (2) SACR 457 (WCC) (11 June 2013)

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[2013] ZAWCHC 118
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S v Makhakha (SS41/2012) [2013] ZAWCHC 118; 2014 (2) SACR 457 (WCC) (11 June 2013)

SS41/2012
61
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(
WESTERN CAPE HIGH COURT, CAPE TOWN
)
CASE NUMBER
: SS41/2012
DATE
: 11 JUNE 2013
In the matter between:
THE STATE
and
SANDISILE MAKHAKHA
...................................................................................
Accused
J U D G M E N T
BOQWANA, AJ
:
The accused before this court faces six charges. Count 1 is a charge
of common law rape as read with sections 256 and 261 of the
Criminal
Procedure Act, Act 51 of 1977 and section 51(1) and part 1 of
schedule 2 or part 3 of schedule 2 of the Criminal Law Amendment
Act,
Act 105 of 1997. Count 2 is a charge of murder read with section
51(1) of the Criminal Law Amendment Act. Count 3 is that
of robbery
with aggravating circumstances as contemplated in sections 1 of the
Criminal Procedure Act read with section 51(2)(a)
and Part 2 of
schedule 2 of the Criminal Law Amendment Act.
Count 4 is one of attempted murder read with section 51(2)(c) of the
Criminal Law Amendment Act. Count 5 is that of rape as contemplated

in section 3 of the Criminal Law (SexualOffences and Related Matters)
Amendment Act, Act 32 of 2007 read with the provisions of
sections 1,
56(1), 57, 58, 59, 60 and 61 of the same Act and with sections 256
and 261 of the Criminal Procedure Act and section
51(1) and Part 1 of
schedule 2 of the Criminal Law Amendment Act. Count 6 is that of
murder read with section 51(1) of the Criminal
Law Amendment Act.
In respect of counts 1 and 2 the State alleges that on or about 18
October 2007 and at or near the bushes behind Brown Street,

Masakhane, Gansbaai, the accused had sexual intercourse with Nozukile
Ntshoze, hereinafter referred to as deceased 1, a female
person
without her consent and on the same date and place he unlawfully and
intentionally killed deceased 1 by strangling or throttling
her with
his hands and/or any other item and/or doing an act or acts which cut
off her supply of air.
In respect of counts 3 and 4 the State alleges that on or about 25
November 2007 and at or near the bushes near the industrial
area at
Gansbaai the accused unlawfully and intentionally assaulted Phindiwe
Cecilia Keswa, hereinafter referred to as Keswa, by
threatening her
with a knife, dragging her into the bushes and choking her and then
with force took her purse containing R300,00
and a cell phone from
her and on the same day and place the accused attempted to kill Keswa
by strangling and/or choking her and
thereby cutting off her air
supply.
In respect of counts 5 and 6 the State alleges that on or about 4 to
6 July 2011 and at or near the Balasi grazing fields, Bisho,
Eastern
Cape, the accused unlawfully and intentionally committed an act of
sexual penetration with Azavela Ziwele, hereinafter
referred to as
deceased 2, a female person without her consent and during the same
time and at the same place killed deceased 2
by strangling or
throttling her with his hands and/or doing an act or acts to cut off
her supply of air.
In order to confirm the jurisdiction of the Court in relation to
counts 5 and 6 the State submitted a certificate as Exhibit A,
issued
in terms of section 111 of the Criminal Procedure Act, dated term
October 2012, with the National Director of Public Prosecutions

directing that counts 5 and 6 relating to offences allegedly
committed at Bisho in the Eastern Cape be tried in the area of the

Director of Public Prosecutions of the Western Cape High Court.
The accused was legally represented and pleaded not guilty to all the
charges against him. In terms of the provisions of section
115(1) of
the Criminal Procedure Act the accused elected not to give a plea
explanation. The accused submitted various admissions
in terms of
section 220 of the Criminal Procedure Act which were read into the
record as Exhibits C, S and XX. The most relevant
admissions are the
following:
The deceased were correctly identified as Nozukile Ntshoze and
Azavela Ziwele.
The bodies of deceased 1 and 2 suffered no further injuries after
the removal from the scene of crime to the mortuary.
The correctness of the contents and findings of both post mortem
reports, Exhibit D and H.
The correctness of all photo albums and the keys thereto relating to
the different crime scenes and/or post mortem examinations.
Blood samples in respect of counts 1, 2, 5 and 6 were regularly
taken from the accused and sealed in a reference sample collection

kit and submitted to the Forensic Science Laboratory for analysis.
The panties which deceased 1 and deceased 2 had on their bodies
during the post mortem examinations were correctly placed inside
the
sexual assault evidence collection kit by Dr Potelwa and Dr John
respectively and regularly submitted to the forensic laboratories.
Turning to the common cause facts. In respect of counts 1 and 2 it is
common cause that deceased 1 was killed on 18 October 2007
at the
bushes in Masakhane, Gansbaai. Her body was transported to the
mortuary at Hermanus and did not sustain any further injuries
or
wounds after the removal from the scene of the alleged crime until
the post mortem examination was conducted by Dr Potelwa on
22 October
2007. The accused admitted the contents of the post mortem report to
be true and correct.
According to the post mortem examination conducted by Dr Potelwa the
cause of death was asphyxia due to manual strangulation. The
vulva,
vestibule, vaginal vault and cervical os swabs were taken from the
body of deceased 1. The swabs, together with the panty
that deceased
1 was wearing, were placed inside the sexual assault evidence kit by
Dr Potelwa. The blood sample was taken from
the accused by Dr H
Barnard on 11 December 2007.
The accused’s blood sample and the evidence collection kit were
submitted to the Forensic Science Laboratory for forensic
analysis.
The forensic analysis examining the presence of semen showed a
positive result on all the swabs undertaken as well as
the panty. The
DNA result from the panty matched the reference sample of the male
donor L Msengana. It is common cause that the
accused was also known
as Lunga Msengana and used that name interchangeably with his
official name, Sandisile Makhakha.
With regards to counts 3 and 4, it is common cause that Keswa was
robbed on Sunday, 25 November 2007, between 12:00 and 13:00 at
the
bushes near the informal settlement of Masakhane and at Gansbaai and
that her wallet containing R300,00 and her Nokia 2300
cell phone were
taken from her during the attack. A male person attempted to kill her
by dragging her into the bushes and strangled
her up to a stage that
she became unconscious. She suffered injuries to her knee and wrist
during the attack. It is also common
cause that the accused resided
in Masakhane, Gansbaai during the period of the alleged offences and
that he gave his name as Lunga
Msengana when he was arrested.
In regard to counts 5 and 6, it is common cause that deceased 2’s
body was found on 6 July 2011 at the grazing fields between
Zinyoka
and Balasi and that her body was transported to the mortuary in Bisho
and during the transportation the body sustained
no further injuries
or wounds. A post mortem examination was conducted by Dr John and his
finding was that the cause of death was
suggestive of strangulation.
A blood sample was taken from the accused by a registered nurse, N C
Solwandle, on 13 July 2011. The
cervical os, vaginal vault, vulva and
vestibule swabs were correctly taken from deceased 2.
Those swabs together with the panty that deceased 2 was wearing were
placed in the sexual evidence assault kit, sealed packet and
sent for
forensic analysis. Possible semen was detected in respect of all four
swabs as well as on the panty of deceased 2. The
DNA result from the
reference sample, S Makhakha, was read into the mixture DNA results
from the panty.
The accused denies liability in respect of all counts. He raises an
alibi
that he was sitting at home during the period of the
commission of these offences. Accordingly the sole issue to be
determined
by this Court is the identity of the perpetrator of the
crimes the accused is charged with. Turning to the evidence led in
respect
of each of the counts, various documentary exhibits which
were not contested were handed in as evidence of which the following
are the most important:
The post mortem examination reports and sketch plan relating thereto
of Dr Potelwa, that is Exhibit D, in respect of deceased
1 and Dr
Dominic Thadathilankal John, that is Exhibit H and his supplementary
affidavit, Exhibit ZZ, in respect of deceased 2.
Affidavit of Constable Lazarus Kaotsane, attaching photographs
relating to the post mortem examination of deceased 1, which were

admitted as Exhibits E1 to 23.
Affidavits of Mzimkulu Jamba, Hendrik Johannes Janse van Rensburg,
Riaan Otto Mostert and Thuso Tsoanayana attaching photographs,
photo
albums of the crime scenes relating to deceased 1 and an aerial
photograph of the Masakhane, Gansbaai area admitted as
Exhibits F1
to F3, G1 to G11, L and M respectively. Affidavit of Constable L
Gantsho attaching photo albums of the crime scene
in respect of
deceased 2, admitted as Exhibit J1 to J7.
Several documentary exhibits relating to the collection of DNA and
blood samples, the handling and processing thereof and the analysis

of the samples and swabs taken from both deceased and the accused
which were also not contested, were handed in as follows:
1. Reference DNA blood sample taken from L Msengana by Dr H C Barnard
admitted as Exhibit P.
2. Affidavit by Karen Taljaard admitted as Exhibit Q who received the
body of deceased 1, took it to the mortuary and identified
it to Dr
Potelwa.
3. Sexual assault evidence collection kit in respect of the
collection of the panty and genital samples, also known as swabs,
taken from deceased 1 by Dr Potelwa, admitted as Exhibit T.
4. Affidavit of Buhle Boyana who is a forensic analyst and a
reporting officer who tested the panty and swabs from deceased 1 for

possible semen and blood admitted as Exhibit U. The defence
questioned the administration of the oath of the affidavit of Boyana,

but did not challenge the content thereof. Boyana however confirmed
the contents of her affidavit under oath in court.
5. Photographs of the stained panty for deceased 1 as Exhibit V.
6. Affidavit of Ulrich Koenze, the senior forensic analyst and
reporting officer, who received the crime scene reference samples

which were the panty and swabs of deceased 1 and blood sample of the
accused and conducted the DNA analysis of the panty of deceased
1 and
the reference sample of the accused admitted as Exhibit W1 to W6.
7. Collection of forensic reference blood sample taken from S
Makhakha by registered nurse Solwandle in respect of deceased 2,

admitted as Exhibit HH.
8. Reference blood and hair and collection kit taken from Thulani
Daweti in respect of deceased 2 admitted as Exhibit KK.
9. Covering letter regarding control blood sample of Daweti addressed
to Forensic Science Laboratory for DNA analysis in respect
of
deceased 2 admitted as Exhibit LL.
10. Letter from the head of the Forensic Science Laboratory, Wilson
Ramalamo Morejeli confirming receipt of exhibits by the laboratory
in
Port Elizabeth admitted as Exhibit MM.
11. Adult sexual evidence collection kit in respect of the panty,
marshal cassettes and genital samples taken by Dr John admitted
as
Exhibit PP.
12. Affidavit by Morejeli, who tested for possible semen and blood
from the swabs and the panty of deceased 2, admitted as Exhibit
TT.
13. Affidavit by Irfaan Abdullah regarding his receipt and
safekeeping of Daweti’s blood sample in respect of deceased 2

admitted as Exhibit UU.
14. Affidavit by Riedwaan Boltman who is a forensic analyst and
reporting officer who received case file pertaining to deceased
2
containing swabs, panty and accused’s reference blood samples
and conducted DNA analysis on the samples received admitted
as
Exhibit VV.
15. Photocopy of brown paper bag marked and sealed containing panty
of deceased 2 admitted as Exhibit WW.
Dealing with other evidence. The State led various witnesses many of
whom gave formal evidence. With regard to counts 1 and 2 Mostert

testified that on 18 October 2007 at approximately 19H50 he was
called out and arrived at the scene of crime in Masakhane, Gansbaai

where he took photographs of the body of the deceased and of the
scene with a normal digital camera. On his arrival the body of
the
deceased was under the bushes and covered in sand lying face down in
a shallow grave. He testified that no-one interfered with
the
position of the deceased’s clothing and he was present when the
body was turned over.
Jamba who also took photos and prepared key to photos testified that
he seized a cigarette butt, a condom, a condom wrapper at
the scene
and those were taken to the Paarl laboratory for testing and results
came back negative. Sukile Ntshose, hereinafter
referred to as
Ntshose, testified that deceased 1 was his wife. The two of them
resided in an informal settlement called Masakhane
at Gansbaai. He
testified that the house they lived in had no toilets and in order to
relieve themselves they had to go into the
nearby bushes. Deceased 1
was about seven and a half months pregnant when she died and was
unemployed. Ntshose testified that on
18 October 2007 he left home at
7:30 in the morning to go to work. When he returned home at 17h30 in
the afternoon his wife was
not at home and the door was not closed.
He noticed a wash basin with water as if his wife wanted to wash
herself. There was no indication of any disturbance in the house
and
the house was in a normal state and nothing was missing. He then
called his wife on her cell phone and the phone was not answered.
He
then phoned his wife’s brother, Vuyo Tshitshi who also resides
in the same area. Tshitshi also did not know about his
sister’s
whereabouts. The family and other community members accompanied them
to search for his wife in the bushes. Ntshose
noticed that there were
footprints on the sand and he followed the trail and found his wife’s
body buried in a shallow grave
and covered with bushes.
He recognised her clothing as the traditional dress she had on in the
morning when he left her. He was very shocked and disturbed
by what
he saw. He did not interfere with the body. One of the men then went
to call the police. The police arrived on the scene.
Ntshose was not
present when they removed the body of his wife from the scene.
Ntshose further testified that the accused was unknown
to him and his
wife and that he and his wife had a good marriage relationship and he
had no reason to believe that his wife had
extramarital affairs.
Tshitshi, who also was called to testify, corroborated Ntshose’s
testimony and therefore it is not
necessary to repeat his evidence.
Taljaard, who gave evidence before the Court under her married
surname, Van der Bergh, testified that she is employed at the
Forensic
Pathology Laboratory at Hermanus. She was present on the
night of 18 October 2007 when deceased 1’s body was removed
from
the bushes. The deceased had a panty on. The body was handed
over to her by Constable Ralekwa. She transported the body to the
mortuary at Hermanus. While the body was in her care and transported
by her it sustained no further injuries or wounds. On 22 October
2007
she identified the body of the deceased to Potelwa. The deceased’s
panty was removed by Dr Potelwa when he conducted
post mortem
examination on the body. On 1 November 2007 she handed over a sealed
blood sample plus a sexual assault kit marked
WC/190/2007 to
Warrant-Officer Roux at the SAPS police station in Gansbaai.
Dr Potelwa testified that he is a registered medical practitioner and
forensic pathologist. On 22 October 2007 he examined the
corpse of an
adult female which was pointed out to him by Taljaard as being that
of WC03/0190/2007, estimated to be 22 years old.
He conducted a post
mortem examination on the body and recorded his chief post mortem
findings on the post mortem examination report.
Photographs of the
deceased’s body were taken. He removed the deceased’s
panty and placed it in a container, then took
all the swabs. He found
that there was evidence of manual strangulation and evidence of
intra-uterine pregnancy of approximately
six months intra-uterine
life. He defined manual strangulation as a situation where there is
an obstruction of the airway around
the neck with the use of hands.
He further stated that the deceased had blooded dot on the eye which
is associated with the pressure around the neck of a person.
He
further testified that the abrasions on the neck of the deceased are
ascribed to manual abrasions and that the injuries and
black spots on
the neck indicated that there was an obstruction on the neck of the
deceased using more than one finger. He further
testified that there
was a fracture on the hyoid bone. He referred to the hyoid bone as a
strong bone and for that bone to be broken
a lot of force is needed.
There were also multiple scratches on her legs.
Dr Potelwa noted in his report that there was no evidence of injuries
to the genital organs of the deceased. He however testified
that an
absence of injury to the genital organs of a female does not
necessarily mean that there was no forceful penetration. He
could not
rule out that there may have been penetration. Even if there was
penetration, however, the only thing that would assist
the Court in
this instance would be evidence on the swabs. No semen was visible
from the body during his examination. Dr Potelwa
testified that if
the female was lying face down in a shallow grave, such as in the
case of the deceased, there was a possibility
of the semen oozing out
of the genital area of the vagina.
Boyana testified that on 7 June 2008 she was attached to the Biology
Unit of the Forensic Science Laboratory as a forensic analyst.
She
examined the relevant exhibits by a process requiring competence and
biology. The presumptive testing revealed possible semen
detected as
positive in the vestibule, cervical os, vulva, vaginal vault swabs
and the panty. The tests for blood on the panty
were negative. She
took photographs of the panty from the area of the panty that covers
the vagina and cut the crotch part of the
panty for further analysis.
She testified that the exhibits and control blood samples were in her
safekeeping from the date of
receipt to the date of completion of all
analysis.
Koenze, who testified that he was a major in the SAPS attached to the
Biology Unit of the Forensic Science Laboratory in Plattekloof,
gave
evidence as an expert witness. He testified that on 15 December 2009
he received the case files of deceased 1 and evaluated
and
interpreted the DNA results of the crime scene and reference samples
pertaining to CAS134/10/2007, LAB or lab numbers 174314/07
and
94997/08. His findings are recorded on the table in Exhibit W5.
Referring to Exhibit W5 Koenze testified that the DNA profile of L
Mgengana, seal number 01D3AA7618XX, was compared with the crime

sample which was panty A105D1AG1149PS. The DNA found on the panty was
exactly the same in terms of numbers with that of the reference

sample L Mgengana. The most conservative occurrence for the DNA
result from the panty that can be calculated is one person in every

32 billion. On the vestibule, cervical os, vulva and vaginal vault
swabs a mixture profile was obtained, but there was not enough
male
DNA profile to interpret and make any sense as to who the specific
donor was.
When it was put to him that the surname of the accused was Msengana
and not Mgengana he stated that he read the reference sample
to be L
Mgengana instead of L Msengana and to him the letter in the reference
sample collection kit on Exhibit P looked like a
‘g’
instead of an ‘s’.
Joseph George Hayes testified that he was the investigating officer
in relation to counts 1 and 2 and was handed the docket on
18 June
2009. At that stage no suspect was identified. When he received the
DNA report dated 21 December 2009 a suspect was identified.
At that
stage the name of the suspect was Lunga Msengana. After receiving
this information and after applying for a J50 warrant
he proceeded to
Bisho accompanied by Constable Thulani Mtokwana. When they arrived in
Bisho a suspect was already arrested on a
similar charge.
They brought the suspect from Bisho to Hermanus on 15 May 2010. Hayes
completed a warning statement, Exhibit N, and then obtained
the name
of the suspect as being Sandisile Makhakha. This information was
confirmed by the accused’s sister who also provided
him with
his date of birth and residential address. Mtokwana corroborated
Hayes’s testimony and therefore it is not necessary
to repeat
his testimony.
As regards counts 3 and 4, Keswa testified that she was 26 years old
and married. At the time of the incident she was residing
at
Masakhane settlement at a backyard in Gansbaai and was employed by OK
Foods. On Sunday, 25 November 2007, she worked until 12:00
when she
brought bread and walked home. At that time she walked alone on the
tarred road near the bushes and was carrying a jacket
and a bag in
her hands. As the houses in Masakhane became visible she heard a
sound of shoes behind her.
As she turned to look back she saw a male person running towards her.
This person was about 6 to 7 metres away from her and he
told her to
‘stop there’. She continued to walk and ignored him. He
then told her in Xhosa to go into the bushes. At
that stage he was
about 3 metres away from her. She kept walking. This person came
closer and she turned around and then she noticed
a knife in his
hand. This person who was now right in front of her attacked her and
a struggle ensued between them.
They started to wrestle and Keswa grabbed the blade of the knife
injuring her hand. She managed to get hold of the knife and threw
it
away. As the result of the wrestling the bread and jacket fell. She
then tried to escape towards the house, but this person
grabbed her
leg on the pavement causing her to fall down. She could not stand up
again. She started to cry, but her attacker told
her to go into the
bushes as he wanted to kill her. He said he did not want to rape her,
but repeatedly said he wanted to kill
her. He then dragged her
towards the bushes and kicked her. She grabbed a tree and this person
kicked her and then she let go.
At this stage of the proceedings and as she was busy relaying her
evidence Keswa started to cry very emotionally. She further testified

that the male person dragged her for about 8 metres into the bushes.
She could not see the tar road from that position and there
was
no-one else in the vicinity. She was still on the ground and the man
had climbed on top of her. She continued to cry and he
then said to
her that he did not want to rape her, but wanted to kill her and then
she said: ‘rather rape me’, as she
wanted to leave. He
then pressed his thumb on her throat that she could not breathe.
Keswa demonstrated to the court that this male person pressed his
thumb in the middle of her neck in front, above the collar bone
on
the soft tissue. Keswa again became very emotional and continued to
cry as she relayed her testimony. She went on further to
state that
he pressed her very hard, that she became dizzy, unconscious and not
aware of what was happening around her. When she
looked again another
man stood next to her and the man who assaulted her was gone. She
however did not see her assailant walking
away. This stranger helped
her out of the bushes and walked her home. She testified that this
man was unknown to her and she does
not know his whereabouts. Keswa
testified that she also had a Nokia 2300 cell phone which was grey in
colour and a wallet which
had an amount of R300,00 inside in the
pocket of her pants. Those fell out of her pocket when she was
dragged towards the bushes
by her attacker. Her attacker picked those
items up and placed them in his pocket. The cell phone had a SIM card
in it and it was
switched on. The ordeal took about 20 minutes. She
testified that it was a hot, sunny day. She does not wear spectacles
and her
eyesight is good. She saw the face of her attacker and his
physical built and his clothing.
He was of a dark complexion, wore blue denim pants, a faded black
T-shirt and sunglasses. He had a scar next to his nose on the

right-hand side. During the struggle his sunglasses fell and he did
not pick them up. Afterwards she went to the scene with her
brother
and picked up the sunglasses. They handed those over to the police.
She laid a complaint at Gansbaai police station on
the same day.
Early Monday morning at approximately 1:00 am Constable Vuyani
Gcolotela came to her house in Masakhane settlement. Gcolotela asked

her to identify the person who was at the back of the police van.
Gcolotela lifted a green sail at the back of the police van and
lit
his torch. She identified that person in the van as the accused who
is before the Court. The accused was the only person in
the back of
the police van at the time. The accused was wearing the same clothes
as when he robbed her and she recognised his face
which was dark with
a scar. She stated that she was sure that the person in the van was
the man that robbed her.
In cross-examination it was put to her that the accused said he never
saw her and that she must be mistaken with his identity.
She replied
that the accused was lying, it was him. She further pointed out the
scar on the photo, Exhibit Y, circled as Y1. She
again pointed the
scar in Court when asked to identify it whilst the accused’s
face was about 1 metre away from her. She
went on further to state
that she retrieved her cell phone on 26 November 2007 when
Tsoananyana showed it to her. Plaatjie was
also present at the time.
She recognised the cell phone as hers based on the serial number, the
description and the contact numbers
that appeared when the SIM card
was inserted.
According to her the value of the phone was about a R1 000,00.
Her evidence is corroborated by Dr Makoti’s medical report

which is admitted as Exhibit DD. The content of the report was not
disputed by the defence and Dr Makoti recorded that Keswa suffered

injuries due to an assault on 25 November 2007 by an unknown
assailant who tried to strangle her and kicked her on the chest, arms

and abdomen. She suffered bruises on her left knee and scratches on
right wrist. Dr Makoti also recorded on the diagram attached
to his
report: pain on neck or throat, left-side of the chest and behind the
arms. Keswa left Gansbaai in January 2008 and moved
to George.
Gcolotela testified that he is a constable in the SAPS stationed at
Gansbaai police station. On Sunday, 25 November 2007, he was
at work
having commenced his shift at 18:00. He became aware of the robbery
at Masakhane bushes just after he reported for duty
after having been
briefed by members on the earlier shift. At about 1:15 that morning a
man who wished to remain anonymous arrived
at the charge office and
requested to speak to someone who could communicate in Xhosa.
Gcolotela was the only policeman in the charge office who could speak
Xhosa. This man reported to him details of the robbery. At
this stage
of the proceedings the State requested that the hearsay information
given by this unidentified person be provisionally
admitted in terms
of
section 3(1)(c)
of the
Law of Evidence Amendment Act 45 of 1988
as
hearsay evidence and that at the end of the State’s case it
would be argued that the evidence be admitted into evidence.
The
defence had no objections to this application and accordingly the
evidence was provisionally admitted.
Gcolotela then proceeded to give details of what the unidentified man
told him which was that the person who robbed somebody in
the bushes
lives in 481 Mbeki Street, Masakhane and his name is Lunga. He then
gave a description that Lunga had a scar on his
face and that he was
wearing a blue overall and a black shirt and a blue and white beanie.
Gcolotela visited the address furnished to him by this unknown
informant and found the accused who responded to the name Lunga.
The
accused also fitted the description given by this person. He then
arrested the accused and proceeded to a house where Keswa
was living
in the backyard. He then called Keswa and asked her to identify the
man who was sitting in the back of the police van.
He lifted a sail
and turned on a flashlight and Keswa identified the accused as the
person who attacked her on the Sunday.
The Court deals with the admissibility of the hearsay evidence later
on in its judgment. Plaatjie testified that he is the investigating

officer in CAS342/11/2007 and he received the docket on the morning
of 26 November 2007. The accused stated his name as Lunga Msengana

and that he was residing at 481 Brown Street in Gansbaai and that he
was unemployed. On the new information received from the accused

Plaatjie and Tsoananyana accompanied the accused to his residence.
When they arrived at his house the accused lifted up the mattress and
took out a grey Nokia 2300 cell phone. A SAPS 299 document
marked as
Exhibit CC was completed by Tsoananyana at the police station which
the accused signed with letters LM in both Plaatjie’s
and
Tsoananyana’s presence, who signed as a police official who
delivered the object and as a witness respectively. The accused
also
signed on the reverse side of the form confirming the description of
the cell phone.
In cross-examination Plaatjie testified that he explained the
contents of the form to the accused and the accused had no problem

signing it. According to Plaatjie Keswa identified the cell phone as
hers by comparing the serial number on the phone with the
serial
number on the cell phone box. She also inserted a SIM card in the
cell phone and the contact numbers stored on the phone
appeared. The
cell phone was then handed back to Keswa at her home.
With regards to counts 5 and 6, Mbuzeli Moyeni testified that he is a
warrant-officer in the SAPS stationed at Izele police station
near
Bisho. On Wednesday, 6 July 2011, at 11:40, he was looking after his
goats in an open grazing field near Balasi. He saw a
body of a female
person dressed in a pink tracksuit, a cap and a pair of blue pants
lying on her stomach under a tree.
He was shocked and called: ‘Girl! Girl!’ There was no
movement from the person and he then contacted the police. He

remained on the scene until the police arrived. He then handed the
scene and the body over to Warrant-Officer Patrick Soyana. He
did not
interfere with the body and on that morning he did not see anyone
walking around in the field. Soyana testified that he
is employed by
the SAPS at Bisho as a warrant-officer and on Wednesday, 6 July 2011,
he was on duty and was instructed to go to
the grazing fields near ZK
Secondary School at Balasi.
He knew the area and if one goes by foot from Balasi to Zinyoka one
has to walk through the grazing fields. Constable Luyolo Gantsho
was
present at that stage and he took photographs. Gantsho turned the
body over and he noticed a wound on the deceased’s
right ear as
depicted in photo 7 on Exhibit J. He observed no other injuries. The
body was then handed over by him to Monica Klaas
who removed it to
the mortuary. At that stage the standby detective, Warrant-Officer
Velile Zola, was also on the scene.
The State then called four witnesses, namely Odwa Mabala, Siphosethu
Kilani, Zimkhitha Thobani, Nolusindiso Khethani, between ages
of 15
and 20 years who testified that they knew deceased 2. They were all
living in the area of Balasi and Zinyoka. Except Kilani
all the
others knew the accused’s name by ‘Thithithi’ and
saw him in the company of the deceased in the village
of Balasi a few
days before the incident.
Kilani, Thobani and Khethani, the three girls, testified that on 4
July 2011 they were walking from Balasi to Zinyoka and whilst
they
were walking in the
veld
they met Mabala who came from the
same footpath from the direction of Zinyoka. Mabala advised them to
take a different route as
something was happening in front. According
to Kilani and Thobani Mabala did not say what the problem was, but
Khethani told them
that Mabala had told her that the accused was
raping deceased 2.
All three girls testified that as they were walking in the field
between Balasi and Zinyoka they heard a female person screaming.

Khethani testified that she recognised the voice as that of deceased
2. When pressed under cross-examination about how she recognised

whose voice it was that was screaming she stated that she had known
deceased 2 for a very long time and knew her voice.
Mabala testified that on the morning of 4 July 2011 he was coming
back from walking his girlfriend, Siphelele, to Zinyoka and in
the
bushes between Zinyoka and Balasi and he met the accused and deceased
2 in the same footpath. They greeted him and the accused
was walking
behind the deceased. Mabala walked on and shortly afterwards he heard
a scream which initially sounded like a laugh.
Mabala denied that he
told Khethani that deceased 2 was being raped by the accused. Whilst
his evidence was inconsistent regarding
what he told the girls about
what was happening ahead and who was screaming he was adamant that he
saw the accused and the deceased
that morning and that he heard a
scream.
Zola testified that he is a warrant-officer in the SAPS and stationed
in Bisho and an investigating officer in counts 5 and 6.
On 6 July
2011 he went to the area as depicted on photograph 1, depicted on
Exhibit J1. When he arrived on the scene other police
officials were
already there. The body of the deceased was dressed up and covered
with her clothing. The body was then transferred
by Klaas to the
mortuary in Bisho.
Dr John conducted the post mortem and Zola was present. He was
informed by Dr John that the deceased died as a result of
strangulation.
From the date of the post mortem on 8 July until 13
July 2011 the sexual assault evidence kit was kept at the place where
the post
mortem was done. On 13 July 2011 he received a sealed sexual
assault evidence kit relating to this case from the mortuary which

was then recorded in the SAP13 exhibit register, Exhibit FF, under
number 142/2011 and he handed over to the exhibit clerk for

safekeeping.
He further explained the processes regarding the handling of the
exhibits. On 19 July 2011 he received the exhibits from the exhibit

clerk and handed it over to the station commissioner for safekeeping
in his safe. His further evidence was that he received the
said
exhibits from the station commissioner on 21 July 2011 at 5:00 in the
morning to deliver it on the same day to the forensic
laboratory in
Port Elizabeth. Zola stated further that on 6 November 2011, after he
received the report from the forensic laboratory
he obtained a name
from one of the female witnesses and a suspect with the name of
Thithithi was identified.
He was then taken to Thithithi’s house by one of the witnesses
and established his address. The accused before the court
was then
arrested at Balasi where he was staying with his sister. The accused
gave his identity document reflecting his real name
as Sandisile
Makhakha, a copy of which was handed in as Exhibit GG. On 21 July
2011 he personally took the sealed blood sample
and sexual assault
evidence kit collected by Dr John to the forensic laboratory in Port
Elizabeth for presumptive testing.
This was forwarded to Cape Town Forensic Science Laboratory. Zola
stated that he had nothing to do with the transfer of the exhibits

from Port Elizabeth to Cape Town. On instructions of Advocate
Willemse a blood sample was also taken from Daweti, the alleged
boyfriend of deceased 2 who allegedly had sexual intercourse with
deceased 2 the previous night. In cross-examination the defence

questioned the safekeeping of the exhibits whilst under the control
of the police. It was also put to Zola that he on an occasion
when he
transported the accused from Pollsmoor Prison, Cape Town to Bisho for
court appearance at Zwelitsha stopped in Port Elizabeth
at the
forensic laboratory and then told the accused that he had connections
with people in that laboratory and that he would make
sure that the
blood results came out positive.
Zola denied that. Zola further stated that Morejeli, the head of the
Forensic Science Laboratory, Ms Mandaba, the person to whom
enquiries
could be made and Boltman at the Cape Town Science Laboratory were
all unknown to him. It was also put to him that the
accused feared
him and that he told the accused to admit his guilt and make a
confession. Zola denied that and stated that the
prosecution
instructed him to take the accused to a magistrate for a confession,
but the accused did not make a confession.
Klaas testified that she was employed by the Department of Health in
the capacity of regional manager for East London region. In
the year
2011 she was employed at the government mortuary. On 6 July 2011 she
transported the body from an open field at Balasi
camp of deceased 2.
On 8 July 2011 when the post mortem was held she was employed as a
senior forensic officer at Bisho Forensic
Laboratory. She was present
when Dr John performed the post mortem examination and she assisted
him whilst he was doing the post
mortem.
During the post mortem examination the body was fully clothed and Dr
John instructed them to remove the clothes. During the post
mortem
examination swabs and blood samples were taken from the body of
deceased 2 and together with the panty placed in special
individual
envelopes. Klaas further testified that contamination of exhibits was
not possible and the body could not be tampered
with. Klaas further
testified that Dr John had a neck operation and was booked off sick.
She had gone to enquire from Dr John when
he would return back to
work and his wife advised her that he was booked off sick for more
than a month.
Boltman testified that in 2011 he was a lieutenant in the SAPS and
attached to the Biology Unit of the Forensic Science Laboratory
as a
forensic analyst. He testified as a DNA expert and confirmed his
qualifications. He gave an overview of DNA processes, results
and
interpretations. He testified that the DNA molecule is found within
every cell of the human body, that it does not change and
it can be
used as an identification tool. DNA obtained from semen can be
compared to DNA from a blood sample or hair, skin cells
or any other
tissue from the human body. At the Forensic Science Laboratory ten
places within the DNA molecule are tested and these
places are
referred to as loci or a DNA markers.
One of these markers test for the gender of the DNA where XY
constitutes male DNA and XX female DNA. To go within the proceedings

of the analysis Boltman mentioned the different processes that the
DNA follows through the laboratory. The first column on the
table is
the gender marker, the next nine columns are the STR which are Short
Tandem Repeats, that is the nine loci used to determine
DNA and are
reflected in the form of numbers.
According to the DNA analysis the main findings are that in respect
of the vestibule swabs and the cervical os swab, S Makhakha
is
excluded as a donor. He is excluded because his entire DNA profile
differs from the profile obtained from the vestibule swab
and the
cervical os swab, both internal. There is no complete match in the
vaginal vault and vulva. Daweti’s DNA was read
into all four
swabs. However, although there was no complete match for the accused
in all markers in the swabs additional DNA was
picked up in the
vaginal vault and vulva swabs which constitute a mixture.
This means that another person’s DNA other than that of Daweti
was present on those swabs. That additional DNA was similar
to that
of the accused. The DNA profile obtained from the panty was a mixture
DNA profile. The accused was represented at all ten
markers which
clearly meant that he was the donor of the DNA on the panty. Only in
respect of one marker, vWA, of the panty was
there a 15 which is an
additional piece of DNA which constitutes a mixture DNA profile. It
means that another person’s DNA
was also present at that one
marker and that was similar to Daweti’s DNA profile.
The most conservative occurrence for the DNA result of the panty that
could be calculated for all the possible contributors to
the mixture
result was one person in every 64 million people. The donor of
reference sample S Makhakha was excluded as a donor
of the DNA on the
vestibule swab, cervical os swab, vaginal vault and vulva swab
because he could not be read on all ten places
which is a
requirement. However, the additional DNA markers identified on the
mixture in the vaginal vault and vulva swabs were
identical to that
of the accused.
In regard to Dr John’s availability, Mr Badenhorst, the
prosecutor, advised the Court as an officer of the court that he
had
spoken to Dr John and Dr John had a neck operation and would not be
able to travel to Cape Town. The earliest he could get
back to work
was early June. The date was however not certain. The State
accordingly closed its case. The Court found that it would
be in the
interest of justice and of the parties for Dr John to be called,
however, in view of the practical difficulties the Court
invoked the
provisions of section 212(12) of the Criminal Procedure Act read with
section 186 of the Criminal Procedure Act by
directing Dr John to
file a supplementary affidavit and call for evidence via written
interrogations.
On 17 May 2013 the Court issued a directive admitted as Exhibit YY,
requesting Dr John to clarify certain aspects of his report
and
invited the parties to also submit their questions. The State filed
its questions which were marked as annexure A of the directive,

whilst the defence filed a notice stating that it had no questions so
far. The defence’s notice was marked as annexure B
of the
directive. A copy of Dr John’s supplementary affidavit was
received by the Court on 20 May 2013 and read on the record
on 22 May
2013. Parties had no objections to the copy of the supplementary
affidavit being admitted pending the arrival of the
original
supplementary affidavit. The original was received by the Court on 27
May 2013 and admitted accordingly.
Dr John’s evidence taken from his affidavit and supplementary
affidavit which were not contested by any of the parties was
briefly
that he is in the services of the State as a chief medical officer
attached to the Forensic Pathology Services Mortuary,
Mdantsane,
Eastern Cape. He is responsible for medical legal autopsies at the
Forensic Pathology Services Mortuary in Bisho and
has been doing post
mortem examinations since his full time employment in Mdantsane,
since 1 July 1992.
On 8 July 2011 he conducted a post mortem examination on a corpse of
a black female estimated at 16 years old bearing number DR326/11,

pointed out to him by Klaas. The body was collected by the senior
forensic officer on 6 July 2011 and was kept refrigerated until
the
commencement of the post mortem examination on 8 July 2011. The
deceased was wearing a long jean trouser buttoned properly,
a pair of
black shoes, underpants, tracksuit top, golf shirt and a T-shirt all
properly dressed. The body did not show significant
decomposition
changes. Decomposition could have been inhibited by the lower
atmospheric temperature possible in the month of July.
The possibility that death took place on 6 July 2011 or a day or so
earlier could be entertained when looking at the stage of the
body
and other factors which could contribute like the winter temperature.
The post mortem findings were suggestive or indicative
of
strangulation as a cause of death and there was nothing detected to
the contrary. Bleeding into the salivary gland below left
side of
lower jaw bone, the major muscle obliquely across the right side of
front neck, the small thin muscle on front and sides
of neck and the
covering sheath around the thyroid gland were noted.
This bleeding into the soft tissue in the neck was possibly produced
by the application of a blunt force on the neck and these
findings
were possible in manual strangulation. The cause of death was
reconcilable with a scenario where the deceased was strangled
with
bare hands. Congestion of internal organs was detected and it is one
of the findings noticed in asphyxial death like strangulation.
No
abnormality was detected on the deceased’s genital organs.
Just before closing argument and after both parties had closed their
cases the State applied for the reopening of its case. It
advised the
Court that Daweti, the alleged boyfriend of deceased 2, who could not
be located earlier on to testify, had now been
found and it was
crucial that the Court heard his evidence. The defence had no
objection to Daweti being called. The Court accordingly
allowed the
reopening of the State’s case.
Daweti testified that he was 20 years old and resided in Bisho at
Balasi location. In July 2011 he knew deceased 2 and had known
her
for three months before her death. He testified that deceased 2
resided in Balasi. He and deceased 2 had a sexual relationship
which
was not serious. In other words, he was the deceased 2’s
boyfriend. He testified that he last saw the deceased alive
on
Saturday morning, 2 July 2011. When he walked her home the deceased
had asked him to turn back because she did not want her
parent’s
friends to see them together. Daweti and the deceased were together
since Friday night, 1 July 2011. He testified
that he might have
mixed the dates around, but thinking back he thought that he had seen
the deceased on Friday night.
They had sexual intercourse on Friday evening and again on Saturday
morning. Daweti also testified that he knew the accused just
by
seeing him and he stayed at the flats. He did not know if the accused
knew deceased 2. He and the deceased had a good relationship.
The
police asked for his blood to be drawn. He gave his blood to a sister
at the hospital and confirmed his signature as depicted
in Exhibit
KK. Under cross-examination he stated that he was shocked when he
heard about what happened to deceased 2 because he
had just spent
time with her a few days earlier. Police came to him and told him who
the perpetrator was.
The accused testified in his own defence and called no witnesses. He
testified that he is single and 26 years old. With regards
to counts
1 and 2 he testified that on 18 October 2007 he was staying in a
shack at Brown’s Estate, Masakhane, Gansbaai with
his brother.
He testified that he knew the bush adjacent to Masakhane, the place
where other people normally go to relieve themselves.
There was a
communal municipality toilet in the vicinity and he used that toilet
and did not go to the bushes. On 18 October 2007
he went to the shop
and returned back home. He was at home all the time, just sitting
there. It is a long time ago, but he remembered
that he walked
quickly to the shop and then came back home.
On 18 October 2007 he was at no stage at or near the bushes. He
repeated that he was never in the bush and did not know what happened

there. He could not dispute that deceased 1 was found dead and buried
in a shallow grave because he had no knowledge about that
and also
did not know those people. He denied any knowledge about the alleged
rape and murder of deceased 1.
The accused testified further that he was taken to the doctor and a
blood sample was extracted and sealed and handed over to the
police.
He also confirmed that he was informed that the blood was going to be
tested, but he did not know what they did with the
blood because he
was not present when the test was executed. He also understood that
no-one tampered with the blood, but again
stated that he was not
present when the blood tests were being done.
He stated that he remembered that no rights were ever explained to
him after his arrest for the alleged rape and murder of the
deceased.
The accused further stated that he heard at some stage about the
incident, but did not know deceased 1.
In regard to counts 3 and 4, the accused testified that on Sunday, 25
November 2007, he was residing at Brown Street, Masakhane,
Gansbaai
and on that day he was sitting at home and that he never went near
the bushes at the industrial sector. He was not there
at all. He did
not know Keswa at all. He was not the one who attacked her with a
knife and threatened to kill her. He did not take
her wallet with
R300,00 and her cell phone. He is not the one who dragged her into
the bushes. He is not the one who strangled
her at the bushes.
He denied that the cell phone was retrieved from his shack by the
police in his presence. He could not confirm whether or not the
cell
phone was retrieved because he did not see it. He further denied that
a policeman went to his shack and found the cell phone
there and that
the phone was taken from under his mattress. He knew nothing about
the handing over of the cell phone to Keswa.
He did not sign that the
phone be handed over to her. He stated that that is not the truth.
The accused further testified that he was only requested to undersign
the document on the day after his arrest when he was being
charged.
He could not read the content as he was just shown the place where to
sign. After his arrest and on the way to the police
station they
stopped at some place. The police officer alighted and entered a
house and came back with two persons.
A flashlight was lit and it was aiming into the van from behind him.
The back window was open. The accused looked behind him and
saw the
person with the torch lit. He could not hear the conversation or
recognise the people outside the van as it was dark. It
was put to
the accused that Keswa identified him that night as the person who
attacked her during the day. The accused replied:
‘No, I
disagree with her’.
In regard to counts 5 and 6 the accused testified that around 4 to 6
July 2011 he resided in Bisho at Balasi with his sister, Mthembu
and
on that day he did not leave Balasi township to go to another
township. He confirmed that there are bushes between Zinyoka
and
Balasi. He denied that he was there on Monday morning, 4 July 2011,
and stated that he never put his foot there. He also denied
that he
met Mabala there on that date because he, the accused, was never in
the vicinity. He also denied that he was in the company
of deceased 2
on that day. He stated that he knew Mabala from Balasi and deceased 2
whom he use to see at Balasi. He denied ever
being in her company
with her in a shebeen because he did not drink.
The accused testified that he heard about the body of deceased 2 that
was found in the bushes between Zinyoka and Balasi. He denied
that he
raped and killed her as alleged by the State. He stated that he was
not the perpetrator. He did not dispute that the DNA
results were
positive with regards to the rape case, but testified that the
investigating officer, Warrant-Officer Zola, said that
he would see
to it that the results would be positive. He told him that when they
were on their way from Pollsmoor to Bisho and
stopped in Port
Elizabeth at the laboratory.
Zola further said that the accused must please admit to the
commission of the offence because he would speak to the people
working
with the blood samples and that the DNA results will be
positive. Zola also threatened to beat him. He then promised to make
a
confession, but when he was brought before the magistrate he did
not fulfil his promise. He did not make a confession.
In cross-examination the accused basically confirmed his
examination-in-chief. The following aspects of his evidence are to be

highlighted out of importance:
1. That the accused was resident at Gansbaai since 2002 and stayed
there continuously until 2007. He was residing in Gansbaai at
the
time of the commission of the offences on 18 October 2007 and 25
November 2007.
2. That he was 20 years old in the year 2007. He was not permanently
employed and worked on a casual basis at the Atlantis factory
in
Gansbaai. He normally got up in the morning and went to the Atlantis
factory for casual work and if there was no work he went
to the place
on the outskirts where the other unemployed people would stand for
work. He normally stayed there until 12:00. He
could not recall
whether he worked during the week of 15 to 19 October 2007 or on the
morning of 18 October 2007. He worked at
least once a week. When he
did not find work he turned back and went straight home. He then
remained at home until his brother
returned from work. He remembered
it because it was his routine.
3. That when he was arrested for murder the police informed him that
the incident took place on 18 October 2007. He did not enquire
from
his employer whether he worked on that day. He also did not ask his
girlfriend whether she visited him on that day.
4. The accused agreed that all three women were attacked in the areas
of the neck, that at the time they were alone. The two deceased
had
facial injuries, that the two were apparently raped and that the
person who raped them pulled their clothing up and partially
up. He
further agreed that a person that murders women like that has a
serious problem because he is not only a murderer, but also
a rapist.
Accused denied that he is such a person. He stated that he did not do
it and so he is not going to stand responsible
to that or admit as he
had no knowledge thereof.
5. With regard to the DNA evidence by Koenze, that the panty where
the private part of the deceased was tested for DNA and it matched

the accused, the accused replied that they were trained in their work
and learned people in that field and he was not disputing
his
evidence, but he was quite sure that he was not the one who did it
and that he was not going to admit to the commission of
offences that
he never committed. Regarding the semen found on deceased 1’s
panty he explained that he did not know how it
landed there because
he had never been to her. He had never met the deceased and did not
know her from a bar of soap.
6. During further cross-examination the accused stated that on 18
October 2007, after he went to the spaza shop to buy bread, he

remained at home the whole day. On 25 November 2007 he also remained
at home. He admitted that he was not able to recall where
he was on
certain other days as it was dates too long ago. On the Sunday, 25
November 2007, between 12:00 and 13:00, when Keswa
was robbed he was
at home. He did not go to the shop and was just sitting there. He
went to the communal toilets and outside tap
to fetch some water. It
is possible that someone might have seen him there, but they might
not remember seeing him.
7. The accused further denied wearing a blue jacket and an overall
suit at any stage before his arrest. He however admitted that
one
could see something blue on the photo taken by Mostert in Exhibit Y.
8. The accused agreed that there is a mark on his right-hand side of
his nose as depicted on photo Exhibit Y and marked point Y1
on the
photo. According to him it is as a result of a pimple he had in 2010
and it was not there in the year 2007. Accused denied
that the photo
was taken with the mark on his face alongside his nose on 3 December
2007.
9. The accused again stated that he was not the person who dragged
Keswa into the bushes and not the person that put his thumb
on her
airway and told her that he was going to kill her and robbed her with
a knife. He testified that Keswa was lying, but he
could not give a
reason why she would tell a lie.
10. The accused denied that he gave to the police a cell phone which
was under his mattress and that belonged to Keswa. He further
stated
that both Plaatjie and Tsoanayana lied about this and he never handed
the cell phone.
11. That on Monday, 4 July 2011, the accused was sitting alone at the
flats and that he was not at any stage walking over the field
between
Balasi and Zinyoka. He has nobody to verify that he was sitting at
the flats. He admits that he knows Mabala, but they
are not friends.
According to him Mabala has nothing against him. Accused stated that
Mabala was lying when he testified that he
saw deceased 2 and himself
in the
veld
on that morning. Mabala was making a mistake.
12. The accused stated further that he could not dispute the evidence
of the DNA expert that his semen was found on the panty of
the
deceased and that it matched his blood reference sample. He however
denied having sexual intercourse with the deceased. His
only
explanation was that Zola manipulated the analysis in order to get a
positive result, but he could not explain how Zola did
it. The
accused did not dispute that the DNA mixture was found inside
deceased 2’s vagina.
Turning to the analysis of the evidence. The State’s case in
respect of counts 1, 2, 5 and 6 rests mainly on circumstantial

evidence, evidence in relation to counts 3 and 4 is both direct and
circumstantial in nature. In deciding whether the State has
proved
its case beyond reasonable doubt, based on circumstantial evidence,
the Court needs to take into account the cumulative
effect of the
evidence before it as a whole. It is impermissible and an incorrect
approach to consider the evidence piecemeal.
In this regard see
S
v Reddy
1996(2) SACR 1 (A) at 10B to D. See also
S v Snyman
1968(2) SA 582 (A) at 589F.
The questions to be answered in this case are whether the inferences
sought to be drawn, that is that the accused is a murderer
and
rapist, in relation to the relevant counts are consistent with all
the proved facts and whether the proved facts are of such
a nature
that they exclude every reasonable inference from them, save the ones
sought to be drawn, namely that the accused had
murdered and raped
the deceased women.
In
S v Isaacs and another
1974 SA 1
(AD), at 16D, Mullah, JA
quoted with approval the remarks of Lord Wright in
Caswell v
Powell Duffryn Associated Collieries
1940 AC 152
at 169 where he
said the following:
“
Inference must be carefully distinguished
from conjecture or speculation. There can be no inference unless
there are objective facts
from which to infer the other facts which
it is sought to establish. In some cases the other facts can be
inferred with as much
practical certainty as if they had been
actually observed. In other cases the inference does not go beyond
reasonable probability,
but if there are no positive proved facts
from which the inference can be made the method of inference fails
and what is left is
mere speculation or conjecture.”
The State also relies on similar fact evidence. It is firmly
established in our law that this type of evidence is only admitted
in
exceptional circumstances. In Schmidt and Rademeyer:
The Law of
Evidence
, at 15 to 22, the following useful summary is contained
regarding similar fact evidence:
“
Similar facts are admissible if they are
relevant and evidence can be relevant only if a reasonable inference
may be drawn from
them about a fact in issue. Similar facts must be
distinguished from criminal propensity and it is therefore improper
to draw an
inference of guilt merely from a propensity to commit
crime. There must of course be a logical connection between
factum
probans
, that is similar fact, and the
factum probandum
,
that is the facts to be proved.”
In Stephen:
Digest of the Law of Evidence
11
th
edition on 171 at footnote 7, the learned author states the
following:
“
You are not to draw inferences from one
transaction to another which is not specifically connected with it
merely because the two
resemble each other. They must be linked
together by the chain of cause and effect and in some assailable way
before you can draw
your inference. Such a connection may be found
for example through the improbability of coincidence. What is meant
here is that
the more striking the similarity of events is the more
improbable the possibility of coincidence will be.”
Schmidt and Rademeyer
supra
, 15 to 16, footnote 26,
cite the example of
R v Sims
1946(1) ALL ER 697 where the
accused had been charged with committing indecent acts with four
persons. The four complainants each
gave an identical account of how
they had met the accused and what he had subsequently done. Evidence
given by each complainant
was held to be relevant in respect of each
incident because the Court held that it was improbable that all the
complainants would
think up an identical version. See further
generally Hoffmann and Zeffertt:
The South African Law of Evidence
4
th
edition at 55.
From the evidence placed on record it appears that the three
incidents in this case involved three young females between the ages

of 16 and 25 years. All the three women were alone. All these young
women were strangled in exactly the same manner by putting
of
pressure with the hands on the front part of the neck above the
collar bone on the soft tissue leading to the death of the two

deceased and one of them rescued by an unknown person.
The two deceased had facial injuries and were turned on their
stomachs when found. Semen was found on the panties of both deceased

and both had no genital injuries. All three of the women were
attacked in bushes. It appears from the injuries sustained by two
of
the women that they were dragged into the bushes.
In all instances the accused lived near where the victims resided.
The State submits that there was such a close proximity or
similarities in the method used to attack the victims, the place
which is in the bushes, where those incidents took place and the
way
in which the victims were attacked, such that the circumstantial
similar fact evidence points cumulatively to the accused as
the only
attacker. The Court is satisfied that there are similarities in all
these incidents.
Against that background the Court proceeds to deal with each of the
three incidents. In dealing with counts 1 and 2, evidence given
in
relation to these counts was mostly common cause. The accused simply
denied that he was the perpetrator of these alleged crimes.
In
recounting their evidence the witnesses of the State were cogent,
clear and generally gave a good impression in court. They
were not
significantly cross-examined on the material aspects of their
evidence. The accused also stuck to his version which was
a total
denial of being the perpetrator of the alleged crimes and placed an
alibi regarding his whereabouts on the day of the incidents.
Regarding his candour and demeanour in the witness box he was soft
spoken and tended to avoid eye contact at times. On seven occasions

he contradicted himself and tended to be evasive, especially when
asked about what he did on particular days, but on the whole
his
evidence throughout was that he was sitting at home on days that he
did not go to his casual work at Atlantis factory and on
18 October
2007 he was at home the whole day doing nothing. What remains is for
the Court to analyse the conspectus of evidence
before it to
ascertain whether the State has proved its case beyond reasonable
doubt.
The total proven relevant facts before this court on counts 1 and 2
are that deceased 1 lived in an informal settlement in Masakhane,

Gansbaai. The accused also lived in the same vicinity. Deceased 1
lived next to the bushes where members of the community went
to
relieve themselves as there were no toilets next to their settlement.
Deceased 1 was married to Ntshose and their marriage relationship
was
a happy one. When Ntshose left for work he left the deceased at home.
When he returned home his wife was not there. The house
was
undisturbed.
Ntshose noticed the washing basin filled with water as if she was
going to wash herself. Ntshose, his brother, Vuyo Tshitshi and
others
went to search at the bushes for his wife. Ntshose noticed footprints
which he followed. He found the deceased buried in
a shallow grave
lying face down, having recognised her clothing. The grave was
covered with loose branches. There were drag marks
towards where the
deceased was lying. Police arrived and turned the body over. The
deceased’s panty was partially pulled
down and the body had
injuries. The cigarette butt and unused condom were found next to the
scene. No fingerprints were noted after
these items were taken for
testing.
The body was taken to the mortuary and a post mortem was done which
revealed that the deceased died as a result of asphyxia due
to manual
strangulation and there was a fracture of the hyoid bone on the right
indicating severe pressure on the neck. Multiple
scratches were found
on the lower limbs. No injuries were detected on the deceased’s
genitals nor was there any indication
of forceful penetration. A
panty and vaginal swabs were taken to the laboratory for presumptive
testing. Possible semen was detected
on all of the swabs and the
panty. Blood sample was also taken from the accused. DNA was done on
the crotch part of the panty that
contained the semen and that of the
accused’s blood sample.
It is clear from the evidence that Koenze misread the letter S for a
G in Msengana’s surname. The evidence clearly shows
that
reference sample and seal numbers are that of L Msengana. There was a
complete match between the DNA found on the panty and
that of the
accused on all the nine markers applied in the STR profiling. There
was not enough male profile on the swabs to interpret
in order to
identify who the donor was.
The accused testified that he was at home the whole day on 18 October
2007 and only went to the shop. He did not challenge the
DNA
evidence, but denied that he was on the scene on 18 October 2007. He
could however not explain how the semen landed on the
panty. He
testified that he had no problems with erection and was a healthy
young man.
The State seeks the Court to draw an inference from the totality of
the evidence referred to above, that the accused was the attacker
of
the deceased 1 and he committed offences of both rape and murder. In
respect of count 1, that is the count of rape, it is common
cause
that no injuries were detected on the genitals of the deceased nor
was there any evidence of forceful penetration found.
It is true that
there need not be injuries or even a presence of semen for rape to
have occurred, however, it is imperative for
the State to prove
beyond a reasonable doubt that a none consensual penetrative sexual
act of the deceased’s vagina by the
accused penis had occurred,
in other words, that must be the only reasonable inference that can
be drawn from the proved facts.
Consent can be safely excluded because the accused has denied knowing
deceased 1 at all. The issue that remains is that of penetration.
The
State submits that rape should be inferred from the presence of the
semen on the crotch part of the panty of the deceased.
According to
the State it is highly unlikely that semen would be deposited on that
area or zone of the panty that is underneath
the part that covers the
vagina if there was no penetration.
Furthermore, the State argues that the accused could not have
attacked the deceased, which includes taking her into a secluded

area, simply to ejaculate on her panty. It must be remembered that
the test according to
R v Blom
1939 AD 188
at 202 to 203,
that:
“
The inference sought to be drawn must be
consistent with all the proved facts. If it is not then the inference
cannot be drawn.
The proven facts should be such that they exclude
every reasonable inference from them, save the one to be drawn. If
they do not
exclude other reasonable inferences then there must be
doubt whether the inference sought to be drawn is correct.”
Whilst there is a possibility suggested by Dr Potelwa that semen
could have oozed out of the vagina into the panty owing to the
manner
in which the body of the deceased was lying, there remains other
reasonable inferences. In any case, one would have expected
traces of
the accused’s semen in the deceased 1’s vagina to still
be detected. One of the other inferences that could
be drawn is that
the accused pre-ejaculated or ejaculated on the deceased merely by
lying on top of her private parts or by aiming
his penis on her
panty.
The deceased was definitely not a willing person and she obviously
struggled underneath the accused when her air supply was cut
off. The
inference can be drawn that at that stage he was aroused and then
ejaculated on her. No semen was noticed on the vagina
during the post
mortem itself, but it was detected during the presumptive testing in
the laboratory from the swabs. The deceased
was married and Ntshose
could not say when last did he have sexual intercourse with his wife
before she died.
It could therefore not be conclusively said that the possible semen
detected on the swabs belong to the accused. In the final DNA

analysis the donor could not be identified as there was not enough
male profile on the swabs for the purposes of the DNA analysis.
Dr
Potelwa’s scenario on how semen could be lost owing to how the
deceased lay is quite compelling. It however remains speculative
in
the absence of any other evidence suggestive of penetration. In the
circumstances the State has therefore not been able to prove
that
rape had occurred.
Whilst it is so, there remains presence of semen found in the
deceased’s panty which the accused has not explained. Evidence

does show that her panty was partially pulled up which suggests that
it must have been removed from her body and a sexual act performed
on
her, albeit not penetrative. In the absence of any contrary evidence
from the accused it is reasonable to infer that there was
at least an
attempt to rape deceased 1.
The accused may not have succeeded in the actual intended purpose
which was to rape the deceased due to whatever obstacle that
he might
have faced which the Court cannot speculate on. There is however
enough proof that he had commenced with his plan to rape
deceased 1,
but did not fully succeed in what he intended to do.
In light of all the evidence taken together accused’s version
that he was at home all day doing nothing cannot be reasonably,

possibly true and therefore it is rejected as being false. The semen
found in the panty was his. He lived in the same vicinity
as the
deceased and must have been in her company on 18 October 2007. The
Court is therefore satisfied that attempted rape had
been proved
beyond reasonable doubt. The Court therefore finds the accused guilty
of the commission of attempted rape.
Turning to count 2, that is the count of murder. The Court is not
going to repeat the facts that had been alluded to in the Court’s

findings on count 1. The State’s case on this count also rests
on the circumstantial evidence, similar facts and the modus
operandi
applied in the commission of the offences involving the two other
victims, that is Keswa and deceased 2. The State also
submits that
the motive for the attacks on the three women was to commit a sexual
act. That is why the accused dragged them to
the bushes in a secluded
area.
The State seeks the Court to infer that the act of blocking the
airways of victims by the attacker was to get them to the state
of
surrender so that he could perform the sexual act or rape them. The
motive for killing them was to prevent them from reporting
the attack
to the police. The State also submits that it is evident that
deceased 1 resisted her attacker and he assaulted her
by causing her
a blue eye. It is common cause that the deceased was murdered and the
cause of death was asphyxia due to manual
strangulation.
Evidence showed that an amount of pressure was applied on her neck
leading to a fracture on her hyoid bone on the right. She was
dragged
into the bushes and buried on a shallow grave face down. The semen of
the accused is a definite indicator that he was in
the company of
deceased 1 before she died. The defence submits that there is doubt
that the panty tested was the one the deceased
was wearing before the
panty depicted on the photographs because the panty depicted on the
photographs was white whilst Boyana
testified that the panty she cut
for testing was pink.
This submission does not make sense. Taljaard testified that the
panty that the deceased wore was removed from her by Dr Potelwa

during the post mortem examination. Her evidence in that regard was
not strongly challenged. The accused admitted that the panty
that the
deceased was wearing was placed inside the sexual assault evidence
kit by Dr Potelwa. Boyana testified under cross-examination
that
whilst the panty worn by the deceased looks white or cream on the
photos in Exhibit L, it looked light pink on Exhibit F and
this might
be due to the reflection of the light and the fact that the person
who took the photographs in Exhibit F may not have
been a
professional photographer.
The fact that the photograph was taken in the evening with a flash
camera might have contributed to the change in the colour of
the
panty in the photographs. She however testified that she could see
embroidery on the front of the panty depicted on the photo
and the
panty she tested had embroidery on the front which confirmed that it
must have been the same panty. The point remains that
semen was found
on the panty that was tested. There is no explanation from the
accused as to how his semen got into that panty
that was tested for
the semen or who the panty that was tested with semen belonged to if
it was not worn by the deceased when she
was killed.
The submission by the defence that the panty with semen was not that
of the deceased must be rejected. The defence submitted that
the DNA
experts could not be said to be independent because they all are
members of SAPS. The accused did not dispute or challenge
the
independence of the experts nor their evidence. This submission is
also rejected. Reference to general literature on research
that
showed that accused persons often did not have means to acquire
experts is not helpful at this stage as it was up to the accused
to
approach Legal Aid to acquire experts on his behalf if he so wished.
The defence cannot simply raise that issue during closing argument
having made no attempts to raise it with the State witnesses
or Legal
Aid during the hearing of the evidence. That submission accordingly
has no merit and in any event contradicts the accused’s

testimony that he did not dispute expert evidence. The totality of
the evidence places the accused on the crime scene and the manner
in
which deceased 1 was killed had not been placed in dispute. The
accused’s version that he was at home is rejected as not
being
reasonably possibly true.
The accused failed to call any witnesses to corroborate his
alibi
in the face of evidence that points to him as the perpetrator. In the
circumstances the State has proved its case on count 2 beyond

reasonable doubt. The accused is found guilty of murder as charged.
Turning to counts 3 and 4, these two counts highlight a number of
important legal principles, those being admissibility of hearsay

evidence by an unknown informant, identification of an assailant by
the complainant, single witness testimony and similar fact
evidence.
It is upon a conspectus of all that evidence that the State has
presented which it seeks the Court to consider in making
a finding
that it has proved its case beyond reasonable doubt. During the
hearing of the evidence dealing with counts 3 and 4 the
State applied
for admission of hearsay evidence regarding a report given by an
unknown male informant to Gcolotela at Gansbaai
charge office after
midnight of 25 November 2007.
After hearing submissions from both sides the Court admitted hearsay
evidence with reasons to be part of this main judgment. Those
reasons
are dealt with later in the Court’s findings on counts 3 and 4.
The evidence in respect of these counts is more direct
in nature.
There is also hearsay evidence which was admitted by the Court as
already indicated. The counts involved a complainant
who gave a
personal account of what happened to her on 25 November 2007.
The impression the Court formed of Keswa was that she was cogent.
While she became emotional at times as she relayed the incident
she
collected herself and gave a clear account of the details of what
occurred on the day of the alleged attack. Other witnesses
of the
State on these counts were members of the SAPS who were involved in
the investigation or who apprehended the accused. They
contradicted
each other in some respects of their evidence, but those were not
material. In many respects they corroborated each
other.
The accused denied that he was the assailant of Keswa and placed his
identity in dispute, denying that he had a scar in 2007. Whilst
he
admitted that he was arrested on 26 November 2007 he denied that
Keswa’s cell phone was found in his possession. He maintained

that he was at home on 25 November 2007. He testified that the
document he signed giving permission to the police to hand the cell

phone over to Keswa was not explained to him. He was just told to
sign.
The question is whether his version is reasonably, possibly true in
light of all the evidence before court. Keswa lived in the
back yard
of a house in Masakhane, Gansbaai. On 25 November 2007 on her way
home she was attacked by a male person whom she identified
as the
accused. This person dragged her into the bushes and strangled her by
pressing his thumb on her throat while she could not
breath to the
point of unconsciousness.
She was rescued by an unknown man who helped her home. She did not
know where the accused had gone. The accused did not rape her,
but he
took her cell phone and wallet containing an amount of R300,00 when
those fell during the struggle between the two. Keswa’s

evidence that she sustained injuries as a result of the attack by an
unknown assailant was corroborated by Dr Makoti’s medical

report. Keswa identified the accused as her attacker based on the
fact that he was in close proximity to her during the attack.
He was sitting on top of her as he was busy strangling her and she
made a clear observation of who he was. She testified that he
had a
scar on the right-hand side of his nose and she remembered the
clothes he wore during the attack which were off colour black
T-shirt
and denim jeans. She testified that the attack happened in broad
daylight and the sun was shining and the ordeal took about
20 minutes
which meant she had enough time to observe his features.
The police went to Keswa’s house with the accused for her to
identify him in the early hours of 26 November 2007 in a police
van.
A flashlight was lit on the accused and she then identified him as
the person who was wearing the same clothing he wore during
the
attack which was an off colour black T-shirt and a blue denim and he
had a scar on his face. Keswa identified the accused on
the dock as
the man who attacked her.
She pointed out a scar in court when she was standing within one
metre of the accused. She hesitated a bit whilst doing that. Her

hesitation does not raise doubt, but could simply suggest that she
wanted to have a good look at the accused. The defence submits
that
there should have been an identification parade in order to put the
identity of the suspect beyond doubt.
It is trite that evidence of identification should be treated with
caution. In
S v Mthethwa
1972(3) SA 766A at 768A the Court
stated the following:
“
Because of the fallibility of human
observation evidence of identification is approached by the Courts
with some caution. It is
not enough for the identifying witness to be
honest. The reliability of his observation must be tested.”
In
S v Tandwa
2008(1) SACR 613 (SCA) at 652 at paragraph 129
the Court said the following:
“
Dock identification may be relevant
evidence, but generally unless it is shown to be sourced in an
independent preceding identification
it carries little weight.”
The Court agrees with the remarks made by Bam, AJ as he then was in
S
v Ramabokela
2011(1) SACR 122G and P at paragraph 21, where he
stated that:
“
The latter part of the above quote
indicates that the weight to be attached to dock identification
depends on the circumstances
of the case which may differ from case
to case. At the end of the day identification of the accused must be
evaluated with all
the evidence.”
Keswa’s evidence is confirmed by a photograph of the accused
handed in by the State as Exhibit Y which was taken on 3 December

2007. The photograph showed a scar on the right-hand side of the
accused’s nose. The accused denied that he had a scar in
2007.
He testified that he had a pimple which left a mark on his face in
2010. This cannot be reasonably, possibly true for a number
of
reasons. One of the reasons is that the photograph was taken in 2007,
shortly after the incident, depicted a mark on the accused’s

face.
Whether it was caused by a pimple or not, the point is that there is
still a mark. Nothing turns on Keswa referring to it as a
scar
instead of a mark. The accused’s version in this regard is
found to be unreliable and it is an attempt to lie about
his
identity. Keswa’s evidence is corroborated by the hearsay
evidence that the State sought to introduce during Gcolotela’s

evidence.
During the evidence of Gcolotela the State gave notice that it would
request the report by an anonymous person who visited Gcolotela
to be
provisionally allowed in terms of
section 3(1)(c)
of the
Law of
Evidence Amendment Act 45 of 1988
as hearsay evidence. At the end of
the State’s case the State applied for admission of the unknown
informant’s report
as hearsay evidence. The Court allowed
admission of that evidence and reserved reasons which it now gives as
part of this judgment.
An unknown male person who arrived at the Gansbaai charge office just
after midnight of 25 November 2007 informed Gcolotela that
the person
who robbed somebody in the bushes was Lunga who lived 481 Mbeki
Street, Masakhane. The informant described Lunga as
a person who had
a scar on his face and he was wearing a blue overall and a black
shirt and blue and white beanie. Gcolotela testified
that he
immediately went to the address and found the accused that fitted the
description given by the anonymous person and later
went to Keswa’s
address with the accused for her to identify the accused.
This person elected to remain anonymous and refused to divulge his
name. The State submitted that the probative value of the said

evidence was high as it provided independent corroboration of the
version of the complainant. It linked to the circumstantial evidence

in that it provided the initial link which led to the arrest of the
accused and fitted the male person who came to Keswa’s
rescue.
In
Mamushe v The State
2007 SCA 58 RSA, paragraph 16 and 18,
Brand, JA encapsulated the legal position in relation to
admissibility of hearsay evidence
as follows:
“
What has now become axiomatic is that our
courts apply considerable restraint in allowing or relying on hearsay
evidence against
an accused person in criminal proceedings. The
reasons for this restraint have become equally well settled. They
flow mainly from
the nature of the onus that rests on the State and
from the rights of an accused person underwritten by the
Constitution. See e.g.
S v Ramavhale
1996(1) SACR 639A, at 647I(2), 648B,
S v
Ndhlovu
2002(2) SACR 325 (SCA),
paragraph 16 at 337A to C. An important consideration in deciding
whether the Court should overcome its
general reluctance to admit the
hearsay evidence under consideration in a particular case relates to
the role that the evidence
will play. It stands to reason that a
hearsay statement will only serve to complete a mosaic pattern will
be more readily admitted
than one which is destined to become a vital
part of the State’s case. By its nature hearsay evidence cannot
be tested in
cross-examination. The possibility of mistake can
therefore not be excluded in this way. The result is in my view that
hearsay
evidence of identification can only be admitted if the
possibility of mistake can safely be excluded in some other way, e.g.
with
reference to objectively established facts.”
The Court will not go into detail on each of the aspects detailed in
section 3(1)(c)
of the
Law of Evidence Amendment Act, save
to
emphasise that the true test for whether hearsay evidence should be
admitted is whether the interest of justice demand its reception.
In
this regard see
S v Shaik and others
2007(1) SA 240 (SCA) at
171. The hearsay evidence that the State sought to introduce in this
case implicated the accused as the
person who attacked Keswa.
This evidence standing alone would not be sufficient grounds for
admission of hearsay evidence. However, sufficient grounds exist
for
its admission if regard is had to the further evidence based on the
version of the State. Keswa identified the accused as the
person who
attacked her. Further as alleged by the State the accused was asked
where the cell phone was and a cell phone was according
to Plaatjie
and Tsoananyana retrieved by the accused under the mattress at his
home approximately 12 hours after the attack on
Keswa.
It was objectively ascertained that the cell phone belonged to Keswa
based on its make and all contact numbers that came up when
the SIM
card was inserted. All of this served to confirm
prima facie
that the accused at least must have been in the presence of Keswa
when she was attacked. This therefore served to strengthen the

hearsay evidence that this unknown person saw the attack perpetrated
by the accused on Keswa. The mosaic of the hearsay evidence
therefore
completed the State’s evidence and could in the circumstances
not be ignored. Interest of justice demanded admission
of this
evidence.
This evidence has high probative value in that the report made by the
unknown informant about the description and address of the
accused
turned out to be true because when the police reached the address
given by the informant they found the accused and he
confirmed that
his name was Lunga as indicated by the informant and the clothing he
wore fit the description given by the informant.
In the end the
hearsay evidence was reliable.
Taking into account the totality of the evidence which includes the
version of the accused it is highly probable that the unknown
male
person is the person who came to the rescue of Keswa when she was
being attacked. He not only knew about the robbery, but
he knew the
female person was robbed and the identity of the attacker as Lunga.
Furthermore Keswa’s cell phone was found
in the possession of
Lunga Msengana, the accused. Had the unknown person not rescued Keswa
whilst the accused was applying pressure
on her airway with his thumb
she would have probably died like the two deceased women in counts 2
and 6.
The accused’s version that he was at home in the Court’s
view could not reasonably be possibly true. In light of the
positive
identification and overwhelming evidence against him it is highly
improbable that he would sit at home every day doing
nothing. Once
again the accused called no witnesses to support his
alibi
. It
is trite that the
alibi
raised cannot be considered in
isolation, but in the context of the totality of this matter.
His evidence that he did not notice who might have seen him when he
went to the toilet and tap outside does not help his version.
The
accused conveniently remembered what he was doing on the dates of the
specific incidents and not on other dates which is highly
improbable
if he had nothing else to hide. His
alibi
is therefore
rejected.
The accused’s credibility is also questionable in many
respects. First to deny that he signed a document giving consent to

the police to hand over Keswa’s cell phone when his signature
is clearly on the document is absurd. There is no evidence
of
inducement or threat by police to force him to sign. The accused has
also failed to place any motive behind him being forced
by the police
to sign consent that the phone be returned to Keswa.
Second, the accused testified that he never owned a blue overall
whereas the photo, which he did not dispute, Exhibit Y, showed
him
with a blue overall on. The accused also lied about having a pimple
that caused a mark in 2010 whereas it was put to the State
witnesses
that the pimple he had was in 2007. The accused also testified that
he had no parents since 2002, however, in his bail
application in
2007 he stated that he had a responsibility of supporting his sick
parents whenever he had money.
The Court finds the accused’s evidence to be untruthful and on
the whole unreliable. Taking into account all the evidence
led on
counts 3 and 4 the Court finds that the State has been able to prove
beyond reasonable doubt that the accused is guilty
of robbery with
aggravating circumstances and attempted murder as charged. Therefore
the Court finds the accused guilty of robbery
with aggravating
circumstances and attempted murder as charged.
Dealing with counts 5 and 6. The circumstantial evidence that the
State relies on in respect of these counts is that the deceased
and
the accused knew each other, having been seen together at a tavern by
the deceased’s friends on or about 1 July 2011.
Daweti was the
deceased’s boyfriend who testified that he had sexual
intercourse with the deceased on Saturday, 2 July 2011,
which was the
last time he saw her alive, but could be mixing up the dates between
Saturday, 2 July 2011, and Sunday, 3 July 2011.
The deceased was last seen in the company of the accused on 4 July
2011 by Mabala who was walking in the bushes from Balasi to
Zinyoka
coming back from accompanying his girlfriend. Mabala greeted them and
passed. After he had passed the two he heard the
deceased scream, but
had initially mistaken it for a laugh. Mabala met Kilani and Thobani
who were walking to Balasi. He told them
to take another route. The
two met Khethani who was going to Zinyoka on the road. There are
discrepancies between the evidence
of various witnesses as to what
Mabala exactly told them.
Despite this the two young girls changed their route. All of them
testified that they heard a female person scream or a cry. Khethani

was specific that she recognised the voice as that of deceased 2.
There were discrepancies between the evidence given by these

witnesses. Despite this they were consistent on the fact that they
were told by Mabala to change their route and that they heard
a
scream from a female person which was quite sustained.
The body of the deceased was found on 6 July 2011 in the grazing
field between Balasi and Zinyoka. The deceased’s body was
lying
face down on her stomach fully dressed with her jeans zipped up. Dr
John, who conducted the post mortem, found that the external
and
internal injuries found on the body were suggestive of strangulation.
He further found that the injuries on the front of the
neck were
possibly produced by the application of blunt force in the neck.
Semen was detected on the crotch part of the panty worn by deceased
2. The DNA results showed a mixture DNA sample which linked
the
accused to the semen stain found on the panty. There was a complete
match between the accused’s DNA profile and semen
found on the
panty on all nine loci. Daweti’s DNA profile could be read on
the vestibule, vulva, cervical os and vaginal
vault swabs. There were
however additional markers present on the vaginal vault and vulva
swabs. There was a 14 on D8S1179 of the
vaginal vault, a 14 on
D8S1179 of the vulva swabs. A 27/30 on D21S11 of the vulva swab, a 13
on DS18S51 of the vulva swab and a
12 on D5S818 of the vulva swab.
All these markers are similar to the accused’s profile.
Although the accused was excluded as a donor on the swabs due to the
match not being on all markers the State submitted that those

similarities should be an important factor to infer amongst others
that there was penetration of the deceased’s vagina by
the
accused. The accused denies that he was at any stage in the company
of the deceased. He testified that he knew her only by
seeing her in
the community and had no personal relationship with her.
He testified that while he could not dispute the expert evidence that
match his profile with the semen on the panty he denied that
he was
the perpetrator. He also testified that Zola, the investigating
officer, informed him that he would make sure that the DNA
results
were positive. According to him Zola stopped at a laboratory in Port
Elizabeth and this act confirmed his suspicion that
Zola was in
cahoots with those testing his blood sample to make sure that the
results came out positive. Zola denies this in cross-examination.
In regard to his whereabouts between 4 and 6 July 2011 the accused
stated that he lived in Balasi during that period. In the mornings
he
would walk his sister to Bisho to work and fetch her later in the
day. The route he took, he alleged, did not pass through the
bushes
between Balasi and Zinyoka. Although Mabala’s testimony had
certain discrepancies Mabala was adamant that he had seen
the accused
in the company of deceased 2 on 4 July 2011 in the Balasi grazing
fields.
Mabala knew who the accused was and as he had seen him in the
community before, the accused confirmed that he also knew Mabala.

There is no doubt as to the identification made by Mabala. The fact
that he had seen the accused before and the short distance
between
them when he saw him walking with the deceased in the morning at
approximately 10:30 and they greeted each other was conducive
to a
favourable opportunity for reliable identification. In this regard
see
S v Zitha
1993(1) SACR 718A at 720I.
The fact that the accused was the last person seen walking with the
deceased while alive and that his semen was found on the panty
worn
by the deceased makes the accused’s version that he was at home
on the morning of 4 July 2011 unreliable.
Those factors put together with the fact that the deceased was heard
screaming, the manner in which she was killed which was manual

strangulation, similar to counts 2 and 4 relating to deceased 1 and
Keswa, all point to the accused as the person who attacked
deceased
2.
With regards to count 5, the State raises an argument similar to the
one it raised in respect of deceased 1, that the position
of the
panty where semen was found, which is the crotch part, was suggestive
of penetration. The State’s submission in this
instance however
goes further. The State submits that the markers that are similar to
the accused’s profile in the swabs
are factors to be taken into
account in determining whether penetration did occur.
Once again a reasonable inference must be drawn from the proven facts
and the inference to be drawn must exclude all other reasonable

inferences. The proven fact is the presence of semen of the accused
on the crotch part of the deceased’s panty. The inference
that
can be drawn from that is that the accused ejaculated on the panty
that was worn by deceased 2. As with deceased 1 no injuries
or
evidence of forceful penetration were detected from the vagina of the
deceased.
These facts are different from those involving deceased 1. In this
instance the DNA interpreted on the various swabs illustrated
markers
similar to the accused found in the vaginal vault and vulva. This
together with the semen found on the crotch part of the
panty suggest
that the only reasonable inference that can be drawn is that the
accused penetrated deceased 2’s vagina with
his penis. This is
further bolstered by Boltman’s evidence who testified that the
presence of the mixture on more markers
on the vulva swab is
understandable because the vulva is the closest to the panty.
Only two person’s DNA profiles were found on the deceased 2’s
vagina and panty, namely Daweti and the accused. It is
improbable
that the additional markers found on the swabs could be that of any
other person other than the accused. This is coupled
with the
accused’s admission in cross-examination that he could not
dispute the expert’s evidence that a mixture of
DNA bearing DNA
markers similar to his with that of another person was found in the
vagina of deceased 2.
The accused has offered no explanation as to why his semen was found
on the deceased’s panty except a bare denial. The Court

therefore finds that the State has succeeded in proving penetration
of deceased 2’s vagina by the accused penis and it has
been
able to show beyond reasonable doubt that the only reasonable
inference that can be drawn is that the accused has committed
an
offence of rape. Accordingly the Court finds the accused guilty of
rape as charged.
As regards count 6, the only reasonable conclusion that can be drawn
is that the accused strangled the deceased with his hands.
It is
reasonably possible that his motive was for her not to be a witness
of sexual act that he had performed on her. The State
has been able
to prove beyond reasonable doubt that the accused committed an
offence of murder and the Court finds him guilty as
charged.
In conclusion the Court repeats for record purposes the findings in
respect of the different charges:
COUNT 1, ACCUSED IS GUILTY OF ATTEMPTED RAPE AS CHARGED.
COUNT 2, ACCUSED IS GUILTY OF MURDER AS CHARGED.
COUNT 3, ACCUSED IS GUILTY OF ROBBERY WITH AGGRAVATING
CIRCUMSTANCES AS CHARGED.
COUNT 4, ACCUSED IS GUILTY OF ATTEMPTED MURDER AS CHARGED.
COUNT 5, ACCUSED IS GUILTY OF RAPE AS CHARGED.
COUNT 6, ACCUSED IS GUILTY OF MURDER AS CHARGED
.
___________________________
N P BOQWANA
ACTING JUDGE OF THE
HIGH COURT
/LL /...