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 58/2019

In the matter between:

THE STATE										

and

MALIBONGWE DUBA

Coram:			Mbenenge JP
Dates Heard:		14 and 15 October 2019
Date Delivered:		17 October 2019

Summary:			Criminal law – Rape – Murder – Elderly woman assaulted with intent to rape – Assault caused on woman for her to submit to the accused - Fatal injuries on the woman as a result of assault – Lack of penetration resulting in accused being convicted of attempted rape.
Semble: An accused attempting to rape already deceased woman unknowingly – Conviction on attempted murder would still be competent.
Evidence — Circumstantial evidence – drawing of inference – principles restated – accused having been found naked in the location after stranger had fled scene in a naked state.

JUDGMENT

MBENENGE JP:
[1]	Malibongwe Duba (hereinafter conveniently referred to as the accused) is charged with rape in contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and of murder.  It is alleged that on or about 28 April 2018 and at or near Sotho Location, Mooiplaas, East London, the accused unlawfully and intentionally committed an act of sexual penetration with N[…] E[…] M[…], an adult female, by having sexual intercourse with her per vaginam against her will and without her consent.  It is further alleged that at the same time and place the accused unlawfully and intentionally killed N[…] E[…] M[..], an adult female (hereinafter referred to as the deceased).
[2]	The plea tendered by the accused was confirmed as according well with the accused’s instructions by Ms McCallum, the accused’s legal representative.
[3]	In outlining the basis of his defence the accused stated that he had been in the vicinity where the deceased was found dead and that on the same night he was robbed of his clothing.
[4]	The accused made common cause the following facts embodied in a statement he deposed to, which was tendered in terms of section 220 of the Criminal Procedure Act 51 of 1997:
“1.	That the deceased at all relevant times was correctly identified as N[…] E[…] M[…], a 65 year old woman.
2.		That the deceased died late on the evening of 28 April 2018, because of injuries she sustained during an assault.  These include, 3 stab wounds to her neck and one to her left cheek.
3.  		That the deceased sustained no further injuries from the time when she was assaulted and died at Sotho Location, Mooiplaas, in the district of East London, up until a post mortem examination was performed on her body by Dr Solomzi Solomon Zondi on 3 May 2018 as per Death register DR301/18.
4.  		That the injuries sustained by the deceased during the assault are correctly indicated in the post mortem report compiled by Dr Zondi, the contents of which are hereby admitted as Exhibit B.
5.  		That the photos of the scene where the deceased was assaulted, as well as the key to the aforementioned photos, are correct and are admitted as Exhibit C.
6.  		That on the evening of 28 April 2018 I was at the house visible in photo 3 of Exhibit C, when I saw a woman walking past.
7.  		That the following items of clothing found in the neighbouring yard at the places marked Points C and D on Exhibit C, were worn by me on the night in question, viz:
a.	1 pair of men’s black trousers
b.	1 brown belt 
c.	1 pair of black and white takkies
d.	1 pair of black socks 
e.	1 pair of men’s underpants 
f.	1 brown scarf. ”

[5]	Sizwe Booi (Mr Booi), the first State witness, and a resident of Sotho Location, Mooiplaas, East London was on his way home, having been to a traditional ceremony, at 11:45 pm on the night in question when, with the aid of the flash of his cellphone he saw a whitish object on the ground.  This evoked curiosity on him, and as he drew nearer, lo and behold, he saw a person on top of another moving his body as if engaged in sexual activity.  The person he saw was startled at Mr Booi’s appearance, got up and ran away, leaving the other one still lying on the ground.  The stranger wore a whitish t-shirt on the upper body, and was completely naked on the lower body.  Mr Booi gave chase, but was outpaced by the naked stranger.  He returned to the scene, and observed that the person lying on the ground was one he knew – an old lady who stayed in the neighbourhood, N[…] M[…].  She lay in the same position she had been when the other who had run away was on top of her.  She was no longer alive.  She bore an unsightly injury on her neck.  Not far from where she lay, there was a wooden clasp knife with a serrated blade and some clothing items.  Mr Booi summoned neighbours to the scene. 
[6]	Siphosethu Mahlanyana (Ms Mahlanyana) one of the persons who attended upon the scene reported to Mr Booi that the person he had been chasing had been caught still in a naked state, in another street in the location.  Ms Mahlanyana, testified that she had been on her way home on the night in question.  After passing through a lit area she saw a gentleman she referred to as being Mapule’s brother standing at the gate of his yard.  She walked past, and when about to traverse into a dark area, saw a figure appearing from the dark.  She became scared and took a step backward.  She walked back to where Mapule’s brother had been standing, at which point there emerged a naked stranger, with a white object on hand.  Mapule’s brother asked what the matter was, but the naked person did not respond and went about his way.  Ms Mahlanyana proceeded homeward.  Before reaching her home, she met Bulelwa who accompanied her.  When they reached the M[…] homestead she was told that her paternal aunt had been killed.
[7]	Ntyilo Klaas (Mr Klaas) also testified.  He heard a knock on the door of his shack in the early hours of 29 April 2018.  Mr Klaas asked who the knocker was, and the response was “It’s me, I am related to Xolani.”  Mr Klaas knew Xolani very well, and described him as his friend.  The knocker went on to say he did not have clothes and was getting cold.  Upon identifying the knocker, Mr Klaas asked where he had come from, as he knew him to have been in Cape Town.  He responded that he had arrived back from Cape Town a week ago.  Upon opening the door the accused entered and was indeed completely naked.  He asked what had happened to his clothes.  The accused responded that he had been robbed of his clothes, kwaZityele.  Mr Booi gave him some clothes to cover himself.  The accused smelt of brandy.  He put on the clothes and left immediately.  On the following morning Mr Klaas received a report that the person he had opened for the previous night had killed somebody – N[…] M[…].  At that point he learnt for the first time that the deceased had been killed and that the perpetrator had left his clothes at the scene.
[8]	Warrant Officer Mnyazi’s testimony was that in the early hours of 29 April 2018, at ten minutes to one, he attended to the scene of the crime.  He found the deceased lying face down.  Clothing covering her lower body had been lowered to knee level, with buttocks protruding.  The Warrant Officer (W/O) removed all the objects found at the scene.  He also received information from Mr Klaas that the accused had arrived in the early hours and knocked on the door.  Mr Klaas had woken up and opened for the accused, and observed that the accused was naked.  He had asked for clothing, stating that he had been robbed.  That information did not come about spontaneously, but was elicited by a question.  W/O Mnyazi arrested the accused who he found asleep.  The accused was sweating, and mumbled unintelligible words.  He was caused to board a police vehicle, and sat next to the clothes uplifted at the scene.  The accused identified the clothing items as having been his, a fact that was confirmed by the accused’s relatives.  The accused said he did not know how he parted with the clothes, as he had been intoxicated.  Had the accused told him that he had been robbed he would have advised him to open a robbery case.  He was adamant that the accused never opened any case at the police station, and bore no injuries. 
[9]	Captain Higa, the Station Commander of Mooiplaas Police Station, was in the company of W/O Mnyazi when the accused was being arrested.  During the course of the same day, Captain Higa received a report of a t-shirt that had been found abandoned not far from the crime scene.  He investigated this clue and eventually found a white t- shirt bearing blood-like spots, approximately 700 m to 800 m from where the body of the deceased had been found.  At no stage did the accused mention that he had been robbed.
[10]	Dr Zondi confirmed that the deceased died of multiple incised wounds.  Much as there were no findings consistent with sexual intercourse, the possibility that it had occurred could not be ruled out.  The doctor said the lack of injuries to the deceased’s genetalia may have resulted from lack of resistance on the part of the deceased.  Dr Zondi testified that the chief post-mortem findings were multiple incised wounds; “incised right common carotid artery”.
[11]	The accused testified in his defence.  On the night in question he had been drinking at Nkandla Tarven.  He was in the company of 2 other men.  They drank whisky.  When he left the tavern he was drunk.  He said he proceeded to his mother’s parental home.  His relatives had informed him that there were some people staying there.  The homestead in question is not very far from the scene.  He found no one there.  As he left, he saw someone he could not recognise walking along the road.  He proceeded to kwaZityele.  On his way there and in the vicinity of the community water tap, one of 3 men who suddenly appeared advanced at him, carrying a stick.  The man hit him on the bridge of his nose causing him to fall down.  It was dark already.  When he stood up he realised that he had been stripped of all his clothes.
[12]	In his naked state, he went to Mr Klaas’s place.  On arrival there Mr Klaas asked him why he was naked and he told him he had been robbed.  Mr Klaas supplied him with clothes.  He remained conversing with Mr Klaas for about 2 hours, and eventually returned to his place.  He was subsequently arrested by the police.  He identified the clothes that were at the back seat of the police bakkie as being his.  He claimed to have no knowledge of the t-shirt found some 700 m – 800 m from the scene, stating that he had been wearing a red Nike hood. 
[13]	The central issue for determination is whether the person who was seen being on top of the deceased engaged in movements of a sexual nature is the accused. 
[14]	It was argued by Mr Obemeyer for the State, with reference to R v Blom, that the evidence, albeit of a circumstantial nature, warranted a conviction, and that the guilt of the accused had been proven beyond a reasonable doubt.
[15]	In S v Sauls & Others it was held:
“… The State is, however, not obliged to indulge in conjecture and find an answer to every possible inference which ingenuity may suggest any more than the Court is called on to seek speculative explanations for conduct which on the face of it is incriminating and when the accused misleads the Court by lying, arguments based on improbable inferences are not calculated to impress a trial judge.”

[16]	I hasten to say all the State witnesses gave evidence in a satisfactory manner.  None was shaken under cross-examination.  The evidence establishes that a naked man had been seen doing up and down movements upon the deceased whilst both lay down.  The movements were consistent with engagement in sexual activity.  I find, by inferential reasoning, that the naked person who was on top of the deceased would have stripped off his clothes before engaging in the act that was witnessed by Mr Booi.  On the evidence tendered, it is, in my view, safe to conclude that the person who was on top of the deceased was the owner of the clothing found at the scene.
[17]	The next issue to consider is whether the version of the accused in relation to how his clothes got to be at the scene is reasonably possibly true.  The accused’s version is that he was robbed of his clothes, having been in the vicinity of the incident during the night in question.
[18]	At this juncture it is apposite to refer to S v Rama, wherein Rumpff JA quoting Malan JA in R v Mlambo 1957 (4) SA 727 (AD) at 738C said:
“… [I]f an accused deliberately takes the risk of giving false evidence in the hope of … escaping conviction … and his evidence is declared to be false and irreconcilable with the proved facts a Court will, in suitable cases, be fully justified in rejecting [the evidence].”

[19]	The accused fared woefully poor under cross-examination.  His testimony was riddled with inconsistencies and incongruities.  According to Mr Klaas the accused did not mention having been robbed, until he was asked why he was naked.  One would have expected the accused to have warded off the shame nakedness put him to by stating at the outset that he had been robbed, which he never did.  In any event, he never reported any robbery to the police, even upon his arrest.  According to W/O Mnyazi, the accused did not know how he got to lose his clothes.  The evidence of the accused that he was shown and asked about clothing after his arrest was not disputed.  Only during cross-examination did it emerge, for the first time, that the accused was shown his clothing much later at the police station.  The police had no reason to lie in this regard, and indeed none was suggested.
[20]	A lot of questions that spring to mind remain unanswered.  If, as stated by the accused, he was, during the alleged robbery, hit with a stick on his nose resulting in him being unconscious, he would at least have borne an injury on the bridge of his nose, and the police or other persons who interacted with him would have observed the resulting injury or mark.  Is it not strange that the accused was robbed even of his socks and under-wear, and that subsequent to the alleged robbery the clothes were simply dumped where they were subsequently found?  That is strange, indeed!  Might it be that the alleged robbers put on the accused’s clothes purely with a view to killing and raping the deceased?  That suggestion is highly incongruous and improbable.  Why would the perpetrator(s) dump the clothes after executing the plan?
[21]	There are other discrepancies that inhere in the testimony of the accused.  He floundered in relation to what he had been drinking on the night in question.  Initially he had mentioned whisky.  His ultimate version was that he had been drinking rum.  In his section 220 statement he said he saw a woman walking past, but under cross examination he vacillated.  Initially he sought to distance himself from the statement, but ended up being not sure whether he had seen a man or a woman whilst on his way to his mother’s home.
[22]	The accused was hard put to explain how it came about that whilst in a drunken stupor he would visit people he did not know, at about mid-night.
[23]	According to Mr Klaas the accused left immediately after he had supplied him with clothes.  Mr Klaas was not challenged on this under cross-examination, yet when the accused testified he mentioned, for the first time, that he had stayed and conversed with Mr Klaas approximately 2 hours before eventually returning home.
[24]	I am satisfied that the accused is the person that was seen by Mr Booi being on top of the deceased.  The sudden appearance of Mr Booi made the accused escape.  There is enough evidence from which to infer that the accused was subsequently seen in a nearby street by Mapule’s brother and Ms Mahlanyana being in a naked state and with a white object in his hand.  I am further satisfied that the t-shirt the police found in the vicinity of the crime scene is the one that the accused was seen wearing when escaping from the scene.  Later that night the accused was completely naked when Mr Klaas supplied him with clothes.  This explains why the spot stained t-shirt was found a bit distant from the rest of the other clothing items. 
[25]	Regard being had to the nature of the injuries that caused the deceased’s death, there must clearly have been an intention on the part of the accused to kill the deceased.  If the accused had been bent on merely killing the deceased, he did not need to strip off his clothes.  There is sufficient evidence from which to infer that the accused subjected the deceased to an assault to cause her to submit to him.  There is, however, no evidence of actual sexual inter-course, as indeed the accused was disturbed at the sudden appearance of Mr Booi.  The doctor’s testimony in relation to whether there had been penetration is neutral.  It must therefore be that the actions of the accused did not translate to anything beyond an attempt to have sexual intercourse with the deceased (without her consent).
[26]	In R v B it was held:
“If a man assaults a woman in order then and there to have intercourse with her against her will, he attempts to rape her.  The stage of attempt is reached as soon as the assault takes place and before any direct effort is made to effect penetration.”

[27]	The evidence establishes that the assault on the deceased was ferocious, and resulted in gruesome, fatal injuries being sustained.  According to Dr Zondi the deceased must have died almost immediately after the injury on the neck was inflicted.  It is not impossible that the deceased had already died at the time the accused was seen being on top of her making movements akin to those of engagement in sexual activity.  That, however, does not detract from his conduct constituting attempt to have sex with the deceased.
[28]	In S v W it was held that attempted rape is established where the accused has carnal intercourse with an already dead woman in the belief that she is alive and in circumstances where he knows she would not have consented had she still been alive.  In S v Ndlovu  it was held that where an accused who is under the mistaken impression that his victim is alive, whereas in fact he is already dead, and inflicts stab wounds on the victim with the intention of murdering him, is guilty of attempted murder.  
[29]	It follows from the principles enunciated in the cases referred to above that an accused who attempts to have sexual intercourse whilst under the mistaken impression that his victim is alive, whereas in fact she is already dead, ought to be found guilty of attempted rape.
[30]	Applying these principles to the facts of the instant matter, the accused ought to be found guilty of attempted rape, instead of rape.  The stabbing must have been meted out in order to disable the deceased for rape to take place.  Once disabled, it made for the lowering of the deceased’s clothes covering her lower body to be at knee level.  I am therefore satisfied that all this could only have been embarked upon in the knowledge that the deceased would not have consented to having sexual intercourse with the accused.  The movements made by the accused on the deceased whilst the latter was lying down suggest that, at the very least, the accused mistakenly thought that the deceased was still alive. In my view, even if she was already dead, a conviction on attempted rape would, in light of the authorities referred to above, still be competent.
[31]	In all these circumstances, the accused is found guilty of attempted rape on count 1, and murder on count 2.

________________________
S M MBENENGE 
JUDGE PRESIDENT OF THE HIGH COURT

Counsel for the State 		:	H Obemeyer   
					Office of the Director of Public Prosecutions 
					Grahamstown  

Counsel for the defence		:	H McCallum 				
Instructed by                                  :          Legal Aid South Africa
					Grahamstown    

Dates heard                                    :	14 and 15 October 2019.
  
Date judgment delivered 		:	17 October 2019