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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

                                                                                          CASE NO.: CC 88/2015

HEARD: 29/2/16 – 7/3/16

DELIVERED: 9 / 3 / 16

In the matter between:                                         

THE STATE

And

SIYABONGA ZWENGU                                                                                  Accused 1

THOBELANI NYOBO                                                                                     Accused 2

SIZWE BOKWANA                                                                                          Accused 3

JUDGMENT

BESHE J:

[1] Two men, Messrs Mzikayise Tyali and Vuyani Perkad lost their lives in a wave of violent crimes that swept through Vallencia Township, Addo during the night of the 27 to 28 June 2014, during the course of which they were robbed of their sneakers. They were however not the only victims of that crime spree, a woman who was in their company Ms Monica Stefana was robbed and stabbed several times. Earlier Ms Miena Steyn was robbed of her cellular phone, sneakers and R30.00. Mr M. S. who was walking with her lady friend Ms N. K. was stabbed and robbed of a pair of jeans and sneakers that he was wearing together with his belt. His companion was not only robbed of her sneakers and cellular phone but raped by two members of the group that accosted them. In the early hours of the morning on the 28         June 2014 a group of men burst into the house of Ms Madolo and Mr Jack and robbed them of money, a television set, DVD player, speakers and an amplifier. 

[2] The three accused are charged with complicity in the abovementioned crimes. They are charged with seven (7) counts of robbery with aggravating circumstances, two (2) counts of murder, one (1) count of rape, one count of attempted murder and one count of housebreaking with intent to commit robbery.

[3] The accused who are represented by Ms Mazibukwana, Messrs McConnachie and Stamper respectively, pleaded not guilty to the charges.

[4] It became clear during the trial that the only bone of contention was the identity of the perpetrators of the crimes. It is also a feature of this case that none of the complainants identified their assailants and the offences were committed under cover of darkness there being no lights in the streets where this happened. In respect of the housebreaking and robbery at Madolo and Jack’s house the perpetrators made a point of switching off the lights and used lights from their cellular phones to get around the house during the robbery.    

[5] It is common cause that the group of men who perpetrated these crimes were wielding knives and did not hesitate to use them when dispossessing or after their victims of their belongings. Only Ms Steyn, Jack and Madolo were spared the stabbing.       

[6] Ms Stefana testified that when she and her two male companions, the two deceased persons were accosted by the group of men, she had a bottle of beer in her possession. At the time when she was being robbed, she fought back and used the bottle of beer to stab one of her assailants who shouted out to one of his companions, referring to him as Siya and told him that rubbish of a woman was stabbing him. It became common cause that accused number one whose full name is Siyabonga is commonly referred to as Siya. It is also common cause that accused number two had a wound on his upper arm which he alleges he sustained as a result of being stabbed by a Sesotho speaking man at Wallace’s tavern during the evening in question. In her statement to the police however Ms Stefana said the name shouted was that of Bonabona – accused number two. She denies she told police the name Bonabona was shouted.

[7] Ms Vuyokazi Mahobe testified that she met accused number one at Wallace’s tavern on the 27 June 2014. That after accepting accused number one’s love proposal accused number one gave her a key to a house in which he was staying to go and wait for him there. She was later joined by two ladies with whom she was earlier at the tavern, Vuyiseka and Tsitsi also known as Ntombizanele Huhu. The accused persons arrived in the early hours of the morning in the company of other male persons one of whom was Mara. They brought with them some speakers, an amplifier, some alcohol, a cellular phone in a pocket that appeared to have been cut /torn off from an item of clothing. Ms Mahobe also testified about a wound that accused number two had on one of his arms. She also testified about how accused number two and three recounted how a person who was lying on the ground was stabbed repeatedly even backing that up with actions and about the presence of a woman at the time who according to accused number two stabbed him. Accused number two recounted how he in turn stabbed the woman on her buttocks. He also recounted how he took a cellular phone from the woman by cutting the pocket of her jeans which contained the phone off. According to Ms Mahobe accused number two narrated how they kicked the door of a house down and took speakers. Ms Mahobe observed blood stains on the pair of jeans accused number one was wearing as well as on his sneakers. Blood stains on accused number two’s tracksuit pants. Vuyiseka and her were asked to wash the items with blood stains. This included knives that were thrown into a basin in which they were washing the blood stained items of clothing and sneakers. It is common cause that Vuyiseka is accused number two’s girlfriend.    

[8] Later that morning the police followed up on information that they received concerning stolen goods. This let them to accused number one’s place. Sergeant Maarman’s evidence confirms Ms Mahobe’s evidence about the items of clothing that were washed in that he found the sneakers, a pair of jeans and black tracksuit pants hanging in the washing line at accused number one’s place, still wet. It is common cause that the pair of jeans and sneakers belong to accused number one and he was wearing them during the evening in question. Both accused number one and Ms Mahobe told court that the black tracksuit pants were worn by accused number two, something he denies. The two also testified that he was wearing the brown laced up shoes that also had blood stains. This was confirmed by one of the police officers who were at accused number one’s place, Warrant Officer Lama. Accused number two admitted that the blood stains on the pair of shoes that belongs to him was that of the two deceased persons.

[9] It became common cause during the trial that the amplifier and speakers found in accused number one’s place by Sergeant Maarman are items that were taken during the robbery at Ms Madolo and Mr Jack’s place. These were found in accused number two’s presence. A cellular phone contained in a pocket that appeared to have been cut off from the rest of the garment was seen at accused number one’s place by Ms Mahobe. We know that Ms Stefana testified that both sides of one leg of her pants was torn down the seams and she lost her cellular phone and a sum of R180.00 in the process. These were in the pocket of her jeans. It is common cause that Ms Stafana was stabbed twelve times. This is after she stabbed the man who had pinned her against a wire. As she was on top of that man who called out for “Siya”. It was at that stage that she felt being stabbed on her back. At the time when one of the men backed her up against the fence, and after her two male companions fled, other members of the group chased them (Perkad and Tyali). It is common cause that the two (Perkad and Tyali) were stabbed to death not far from where Stefana was attacked. Both had their shoes removed. Tyali having sustained multiple stab wounds mostly on his upper body. Same applies to Perkad. The doctor who conducted the post-mortem examination stated that the latter ± ten stab wounds. Accused number two admitted that the blood belonging to each of the deceased persons was found in a pair of shoes belonging to him. He however denied that he had been wearing the shoes that evening saying he had lent them to a coloured male at accused number one’s instance. At a house which turned out to be accused number three’s house, where accused number one was found by the Investigating Officer Sergeant Maarman, Warrant Officer Lama found some of the items that were taken from Ms K. and Mr S. during the robbery. As well as sneakers taken from Ms Steyn which were hidden inside the ceiling. Lama also testified about seeing a blood stain on one of the socks accused number three was wearing. Maarman testified that knives were found in possession of both accused number one and two.         

[10] Lieutenant Colonel Sharlene Otto who is attached to the Biology Unit of the Forensic Science Laboratory testified that after a process of analysing certain DNA exhibits received in connection with this matter had been completed, the following conclusion could be made:

The DNA results of swabs “Vulva” and “Cervix” and panty of N. K. (complainant in the rape charge) matches the DNA result of reference sample of Siyabonga Zwengu (accused number one).

[11] All three accused deny complicity in the offences charged. Accused number one states that he does not know who placed the items in his house. He does not know how his DNA ended up in swabs lifted from Ms K.’s panties, cervix and vulva. Saying he did not know Ms K. before this incident. As far as blood stains on his pair of jeans and sneakers he explained that they must have been soiled at the time he was tending to accused number two’s wound who had arrived at his house alleging that he had been stabbed on his arm. That however he did not give him details of the stabbing saying he would do so at a later stage but spent the night at his place (accused number one’s).    

[12] Accused number two testified about having been stabbed at Wallace’s tavern by Sesotho speaking person. I have already alluded to what he said as regards the blood on a pair of shoes belonging to him. As to the presence of goods inside number one’s house where he spent the night, he does not know how and when the items got there though he did not see them before he fell asleep. Only observed them when he got up the following morning.

[13] Accused number three disavows knowledge of how items found in his room came to be there suggesting that accused number one may have placed them there because he had earlier handed him the key to his house / room in order for him to retrieve his charger. Suggesting that he may have been the one who wore his socks and returned them with one having a blood stain. It is clear from the a foregoing summary that evidence from which I should determine whether or not the accused or any of the accused committed the offences charged is of a circumstantial nature. Put differently to determine the identity of the perpetrators of the crimes in question, all that I have at my disposal is circumstantial evidence. This means that I am required to draw inferences from the circumstantial evidence before me. It is trite that there are two cardinal rules of logic which must be borne in mind when one is confronted with circumstantial evidence. They are:

1. The inference sought to be drawn must be consistent with all the proven facts, otherwise the inference cannot be drawn.

2. The proven facts should be such that the exclude every reasonable inference except the one sought to be drawn, if the proven fact does not exclude all other reasonable inference, then there should be a doubt whether the inference sought to be drawn is the correct one.[1]

Trite also in this regard is the principle that the court should look at the cumulative effect of all the items of circumstantial evidence.[2]

[14] Allied to the principles is the appreciation of the fact that in a criminal case, the state bears the onus of proving the guilt of an accused person beyond reasonable doubt.[3]

[15] Regarding what allegedly happened in the early hours of the 28 June 2014 at accused number one’s place, a single witness Ms Mahobe testified. Her evidence has the effect of implicating all three accused persons in the unlawful activities that took place during that evening. I do not propose to traverse her evidence again. Being a single witness in this regard Ms Mahobe’s evidence requires that it be approached with caution. Such caution will be satisfied if her evidence is found to be satisfactory in every respect or if I find that there is corroboration for her evidence.

[16] Ms Mahobe’s evidence was criticized on the basis inter alia that she appeared uncertain of what exactly happened during that evening. Admitting that she may have forgotten some things because this happened a while ago; Parts of her statement to the police differ from her evidence in court; That she may have ill feelings towards accused number one because he brought another woman to the house yet he had earlier taken her to the same house and made her wait for him for the better part of the night. Parts of her statement that are impugned relate to her suggestion that accused number one was already her boyfriend at the time as opposed to have proposed love to her on that day. The aspect relating to when and with whom the two young children who were at some stage also at accused number one’s place arrived. I am inclined to agree with Mr Obermeyer, the representative for the state that these are of no moment as they related to what happened earlier that evening. And do not concern the stage when accused persons are alleged to have returned to the house in the early hours of the morning carrying certain items and about what occurred then.      

[17] In my view Ms Mahobe’s evidence was substantially satisfactory in al material respects. She struck me as being honest, not claiming to recall or being aware of everything that happened that evening. She readily admitted that she cannot recall how many knives were thrown into the washing basin and by whom. Could not recall if she was given any specific instruction when told to wash the blood soiled items. But most importantly, there is corroboration for her evidence inter alia on the following aspects:

She testified that accused number three left after he and accused number two reminisced about the events that took place earlier. There is evidence that accused number one and two remained in the house with accused number one leaving later to join accused number three at his place. She testified about the presence of knives that evening. Knives were indeed found in accused number one’s house. Speakers and an amplifier were found in accused number one’s house. Blood stained clothes were found in the premises. Accused number two denies he was wearing the brown shoes and black tracksuit pants, but it is confirmed by both Warrant Officer Lama and accused number one that he was wearing the brown shoes. Accused number one alleges that he was also wearing the black tracksuit pants.

It is common cause that the door at Ms Madolo and Mr Jack’s house was kicked open. How would Ms Mahobe have known about this if she did not hear accused two and three mention this? Ms Stefana testified that she believes she stabbed one of her assailants with the bottle of beer she had – how would Ms Mahobe have known about that including that she was as a result stabbed on her buttocks. Ms Stafana testified that one of her assailants tore her pants and that she lost her cellular phone and money in the process. She apparently was not even aware that her pocket was torn off – so Ms Mahobe could not have heard from her that her pocket was torn off. I am therefore satisfied that Ms Mahobe’s evidence can be relied upon. No suggestion was made as to why she would want to falsely implicate accused numbers two and three. She was not even found in the house with stolen items. When the police arrived she had already left. 

[18] Evidence reveals that accused number one must be one of the men who raped Ms K. because his DNA was found in swabs taken from Ms K.’s panties, cervix and vulva. He could not explain how his DNA got to be there. At the place where Ms K. was raped her male companion Mr S. was robbed. Items taken during the robbery at Ms Madolo’s house was found in his house. So was Ms Stafana’s phone which was seen in his house by Ms Mahobe. A knife or knives were found in his house. We know that knives were wielded / used when the violent crimes were committed that evening. Accused number two was found in accused number one’s house wearing shoes that had the blood of the two deceased persons who were stabbed to death that evening. Items taken from Ms Madolo and Mr Jack were found in his presence in accused number one’s place. The police found accused number one in the company of accused number three at the latter’s house the very same morning. There they found accused number three’s blood stained sock, items belonging to both Ms Steyn and Mr S..

[19] Save for indication that accused number one is one of the people that raped Ms K., and the indication that the accused may have been present at one or other of the scenes of crime, there is no direct evidence of who did what when. This has prompted the submission by Mr Obermeyer that the accused have been linked in some way to the crimes, should be convicted of all the offences on the basis of the docrine of common purpose. It is difficult to determine with any certainty who did what, who stabbed the deceased persons, who else apart from accused number one raped Ms K., kicked the door at Ms Madolo’s house. Who removed the items taken from the victims (complainants and deceased persons); who stabbed Ms Stefana, etc. The doctrine of common purpose exists to cater for situations such as described above. The doctrine entails that if two or more persons acting with a common purpose to commit a crime, they will be liable for the commission of the crime even though it cannot be determined who did what. This means that the criminal conduct of each of the members of the group will be attributed or imputed to all the members of that group.[4] In S v Mgedezi the following prerequisites for the establishment of common purpose were laid down with specific reference to murder:

(a) presence at the scene of violence.

(b) awareness of the assault.

(c) intention to make common purpose with those who were actually committing the assault.   

(d) manifestation of a sharing of a common purpose with the perpetrators of the assault and by performing some act of association with the conduct of others and possession of the requisite mens rea.

[20] The intention of the group that perpetrated the crimes in question was very clear. They were wielding knives, knives were used to stab or threaten the victims. Demand for money and phones will have been made. The majority of the victims were also robbed of their shoes. The witnesses estimated the group to have constituted of four to six people. The fact that only three accused are before court, in my view, is insignificant. The spoils from the activities of the evening were kept at both accused numbers one and three’s places respectively. On the evidence before me the accused were together when they brought the goods to accused number one’s place. Accused number one and two were still together later that morning. Accused number one also spent time at accused number three’s place where the police found him. It is clear that the accused made common purpose with each other to go about robbing people in the streets of Valencia that evening and to use violence to dispossess them of their property by using knives that they had in their possession.

[21] The question though is, is this the only inference that can be drawn from the proven facts? Some of the inferences I am urged to draw are or that could be drawn from the facts are that someone, without the knowledge o consent of accused number one dumped stolen items at his house. At the same time though, his DNA matched the samples taken from a panty, vulva and cervix of a lady who was raped that evening. That in the middle of the night when accused number two knocked at his house and having identified himself at the time when he (accused number one) was already in bed, he got dressed in his jeans and sneakers before he can open the door for him. Despite the fact that we now know that he had flip flops which he was wearing later that morning. That blood from accused number two’s wound on the arm must have soiled his sneakers and jeans. That his DNA inexplicably ended up in a rape victim’s genitalia who was not known to him. As far as accused number two is concerned, that accused number one who according to him owns a number of pairs of shoes, prevails upon him to give or lend his shoes to a coloured man he does not know only for the coloured male to go and take part in the murder of the two deceased persons – return the shoes and disappear without accused number two seeing him. That during the course of the night in addition to his shoes being returned speakers and an amplifier are brought to the house and he did not hear that because he was asleep. He remains in accused number one’s place having realised that the items were gotten illicitly and his shoes are blood stained. That I should draw an inference that that the lady who was in the company of the deceased persons (whose blood ended up in his shoes) who believes she stabbed her assailant, the fact that accused number two sustained a stab wound that evening is a mere co-incidence. In respect of accused number three I am required to consider as one of the inferences that someone possibly accused number one placed the stolen items in his room. As if that was not enough, having helped himself without his permission to his socks without his permission, wears the socks, and later dumps them in his room with blood stains. In the process does not take the charger he was meant take from accused number three’s place – a charger that belongs to him. This must have necessitated accused number one having gone in and out of his house more than once. Namely he came, took the socks, wore them, did whatever resulted in them or one of them having blood stains and coming back to return the socks and dump stolen items.

[22] Can these be said to be reasonable inference to be drawn from the proven facts? Having considered all the evidence in its totality, I am not persuaded that there is a reasonable possibility that the versions proffered by the accused persons might be true. And that therefore the inferences they suggest should be drawn from the facts are not reasonable. Their versions are accordingly rejected as being untrue.

[23] The only reasonable inference that can be drawn from the proven facts is that the accused formed a common purpose with other and did then rob Ms Steyn, Ms K., Mr S., Ms Stefana, Mr Tyali, Mr Perkad, Ms Madolo and Mr Jack at the time when they were wielding knives. That they proceeded to stab Tyali and Perkad to death. Stabbed Ms Stafana several times in an attempt to murder her. Stabbed Ms K. and  Mr S.. The only inference that can be drawn from accused number one’s DNA having been found in Ms K.’s private parts is that he is one of the men who raped her. The evidence of S. and K. is clear that although the group had separated into two groups, with one group dealing with each of them, at the stage after he (S.) had been instructed to lie face down and not look at them all the men converged on Ms K. and after it had been suggested that she should be raped. K. testified that whilst two men raped her, others would be holding her and pinning her down. 

[24] Because rape can only complete upon penetration and can only be committed with one’s own body, I can only convict accused number one of rape in light of the evidence before court, accused numbers two and three of being accomplices to the rape.

[25] Accordingly the verdicts that I return are as follows:          

Accused number 1:

Guilty as charged on all counts.

Accused number 2:

Guilty as charged in respect of counts 1, 2,

Guilty of being an accomplice to the rape in respect of count 3.

Guilty as charged in respect of counts 4 to 12.

Accused number 3:

Guilty as charged in respect of counts 1 and 2.

Guilty of being an accomplice to the rape in respect of count 3.

Guilty as charged in respect of count 4 to 12.

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N G BESHE

JUDGE OF THE HIGH COURT

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