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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

NOT REPORTABLE

IN SOUTH GAUTENG HIGH COURT

JOHANNESBURG

CASE NO: SS293/00

DATE: 06/03/2002

In the matter between

THE STATE

and

PATRIC MAIPONE MALATSI.............................................................ACCUSED 1

JOSEPH TIP NAMANE........................................................................ACCUSED 2

EDUARD MATOME PILUSA..............................................................ACCUSED 3

Criminal law and Procedure – trial - charges of murder, attempted murder and assault with intent to do grievous bodily harm - evidence of state witnesses - analysis of - test to be applied – contradictions - nature and effect of - defence version – probabilities - accused found guilty as charged.

Sentence - personal circumstances of the accused - seriousness of offences convicted of – interests of society – substantial and compelling circumstances –absence of - Life imprisonment imposed.

J U D G M E N T

VAN OOSTEN J: The three accused were arraigned for trial on the following four charges: firstly; murder; secondly and thirdly, attempted murder, and fourthly, assault with intent to do grievous bodily harm. They all pleaded not guilty to all the charges, and no plea explanation was tendered on their behalf.

The usual formal admissions concerning the identity of the deceased and the correctness of the findings in the post-mortem report were by consent recorded in terms of s 220 of the Criminal Procedure Act 51 of 1977.

The four charges against the accused arise from an incident that occurred on Sunday 31 October 1999 at the Drie Hoek squatter camp in the district of Germiston. During the incident the deceased was seriously injured by various persons with an array of weapons, while the complainants referred to in counts 2, 3 and 4 were assaulted. The deceased subsequently died and the cause of death is described in the post-mortem report as follows: "Fractured skull, cortical contusions and subarachnoid haemorrhage."

Dr Pieterse, the district surgeon who conducted the post-mortem examination, testified that the body of the deceased showed a multiplicity of lacerations and abrasions all over the body. He was of the opinion that the deceased must have been subjected to a severe and vicious assault.

A broad outline of the facts which are either common cause or not in dispute, is the following:

Accused 1 and 2 lived together in a shack in the Drie Hoek squatter camp. During the night of 31 October 1999 two young women, T N M and M D were with them in their shack. Mavuso's uncle, Sipho Khumalo, received information that she had been abducted. Having gathered a group of people to assist him, they searched for her at accused 1 and 2's shack. When they arrived at the shack during the early hours of the evening the deceased and the complainants, who were all in the same group, were assaulted. The next morning a group of people returned to this very shack. The police arrived and the two women were rescued from the shack. All three the accused were arrested shortly afterwards. Members of the community in revenge demolished the accused's shacks.

The accused were charged with the rape of the two women in the Regional Court, Germiston. I have been informed from the bar that the matter "has been dealt with".

Eleven witnesses were called by the State to testify. Seven of those witnesses testified as eyewitnesses to the incident. Those included the two rape victims and the three complainants referred to in counts 2, 3 and 4.

The medical evidence presented was that of the district surgeon, Dr Pieterse as well as Dr Dire, who examined the two rape victims and took smears and samples from them as well as from the complainants referred to in counts 2 and 3.

Finally the State led the evidence of superintendent Michelle Thompson, who is the principal forensic analyst attached to the Forensic Science Laboratory in Pretoria. The analysis of the various samples obtained from Dr Dire, undertaken by her, as well as the results derived therefrom, were not disputed and are set out in her report as follows:

‘1. The STR profile of the DNA from the smears M D (ie M D, one of the rape victims) is the same as the STR profile of the DNA from control blood Joseph Namane (ie accused 2); and

2. The STR profile of the DNA from control blood Joseph Namane (ie accused 2) can also be read into the mixture STR profile of the DNA from swab T M (ie Ms M, the other rape victim).’

The accused testified in their own defence and no other witnesses were called for the defence.

The sequence of the events that occurred on this particular day, as described by the State witnesses in their evidence, is briefly the following.

During the late afternoon of 31 October 1999 Ms M D, who was then 18 years old, went to a tuck shop to buy a cold drink. After she had bought the cold drink, and on her way out, she was attacked by accused 1, accused 2, and a third person who was never traced by the police. Accused 1 slapped her and pulled her, resulting in her falling to the ground. While she was on the ground accused 2 kicked her. The three men then took her to the shack where accused 1 and 2 lived. There she was raped by all three men. She was locked inside the shack when the three persons left. She was told that they were going to fetch "her friend". They left her alone in the shack.

Ms M, who was also 18 years old when the incident occurred, testified that she was sent by her father to a tuck shop to buy meat. She left their house at approximately 20h00. When she arrived at the shop accused 1 came up to her and pulled her by her breast. She asked him to leave her alone. He did so. On leaving the shop accused 1 again attacked her. He pulled her by grabbing her breast, and slapped her. He was in possession of a garden fork, which was handed in as exhibit 1. Accused 2 and a third person were also present. The three of them forced her to accompany them to the shack where accused 1 and 2 resided. On entering the shack she noticed another girl, who was busy preparing food. They did not know each other. She later learnt that the other girl in fact was Ms D. Accused 1 instructed Ms M to exchange her T-shirt, which was bloodstained, for one of his T-shirts. Ms D was instructed to dish up the food, and while they were eating stones were thrown at the shack. In the commotion that followed Ms M heard the voices of her uncle Sipho Khumalo, the complainant mentioned in count 2, and other persons outside the shack. They thereupon left the shack through the window. A fighting ensued outside the shack. She could hear that people were being assaulted outside the shack. She heard the deceased, who was known to her as a colleague of her uncle, apologising and begging his assailants not to kill him. Accused 1 was armed with a garden fork, and accused 2 with a knife which he had taken from the table in the shack. The third person however was not armed. At a later stage accused 3 entered the shack through the window, and shortly thereafter left again through the very same window. The two accused and the third person returned through the window. Accused 1 informed her as follows: ‘We have now killed your uncle’. She observed that accused 1's T-shirt was bloodstained. Ms M was then raped a number of times in turn by the two accused and the third person. Early the next morning she heard a banging on the door. The accused and the third person fled through the window. The door of the shack was kicked open and they were eventually freed by members of the police.

Ms M's abduction to the shack of accused 1 and 2 was witnessed by two State witnesses, Xolani Wesley Nkosi, and Jabulani Hlatswayo, the brother of the deceased.

Nkosi testified that he was on his way to the tuck shop when he observed accused 1, 2 and a third person grabbing Ms M. He decided to report the incident to her uncle, Sipho Khumalo. Hlatswayo testified that he was sitting next to his shack when accused 1, 2 and the third person walked past him. They were holding M at the back of her head. She was crying and it appeared as if she was forced to accompany them. The third person was in possession of the garden fork.

A report was made to Khumalo that his niece had been kidnapped. He decided to investigate and rescue her. He, together with Nkosi and Hlatswayo, went searching for the shack where "the ones selling ice cream" were residing.

I interpose to mention that it is common cause that accused 1 and 2 were well-known in that particular area as vendors of ice cream.

Reverting to the events: having made enquiries they eventually arrived at the shack where M and D were kept. Accused 1, 2 and a third person were standing outside the shack. They were asked whether they were the ones selling ice cream. Their reply was in the affirmative. The immediate release of M was demanded. Accused 1 however refused. Their request was repeated. Accused 1 replied that if they insisted ‘we better fight’. The group left. On their way back home Khumalo suggested to obtain the assistance of others to ensure the release of M. They then approached Elias Magubane and the deceased. Both agreed to help, and the group returned to the shack.

It was during the second visit to the shack that the deceased and the complainants were assaulted. Part of the assault on the deceased was also witnessed by Martina Mohlale, who resided in a shack with her husband and children not far away from the shack of accused 1 and 2. Mohlale testified that she heard the throwing of stones, as well as swearing, while she was inside her shack. She was able to identify the voices of the deceased and Khumalo. She opened the door of the shack and went outside to investigate. She observed the deceased being dragged to her shack, while he was being assaulted by accused 1, 2 as well as a certain Stanley. Accused 1 was armed with a garden fork and accused 2 with a knife. They stabbed the deceased with both the garden fork and the knife. He was already seriously injured and bleeding from the head. She asked them why they were assaulting the deceased. The reply was that the deceased was undermining their dignity. The garden fork was passed between them. Accused 3 arrived on the scene. He assaulted the deceased by hitting him twice over the head with the handle of the garden fork. A man named ‘Pinky’, whom she said resided with accused 1, joined in on the assault on the deceased. The accused started singing. They later bought liquor from her, and she heard three gunshots being fired.

Nkosi testified that accused 1 suddenly came from behind when they were at the shack and that accused 1 struck the deceased with an iron bar on his head. The third person, who was in the company of accused 1 and 2, stabbed Nkosi in the back with a long iron rod. He fell and the deceased fell on top of him. Accused 2 stabbed Nkosi on the right hip with the garden fork. He however got up and ran away. He then recognised accused 3, who chased after him but was unable to catch up on him.

Jabulani Hlatswayo testified that he was waiting at the gate of the premises when the group he accompanied entered on their way to the shack of accused 1 and 2. He felt stones being thrown at him by accused 1, 2 and a third person. He became frightened and returned to his shack. He asked three other persons to assist them. They returned to the scene. There they observed the deceased, who was seriously injured on his head and back.

Magubane testified that six people came from behind while they were making enquiries at the door of accused 1 and 2's shack. Accused 3 was part of the group and he was in possession of an iron rod. Accused 3 hit the deceased with the iron rod. One in the group had a garden fork. He decided to flee but was assaulted with a knobkerrie on the back.

Khumalo in his evidence described the assault on himself during the second visit. He did not witness the assault on either the deceased or the other complainants. While they were at accused 1 and 2's shack he turned around and was then struck with a small axe on the forehead. He observed accused 1 being armed with an axe. When the axe was pulled out from his head it cut Khumalo on his arm. The scars are still visible on his forehead and on his arm. Accused 2 stabbed him in the back with a knife. Accused 3 hit him with an iron rod on the head. Next he found himself in a shallow toilet pit not far away from the shack of accused 1 and 2, where he was hit with a garden fork on the side of his body. He was rescued from the pit the next morning.

I turn now to consider the credibility of the witnesses whose evidence I have dealt with thus far. It is not surprising that the eyewitnesses' accounts reveal profound differences. The deceased was assaulted by several people over an extended period of time. He was moreover dragged from one place to another while the assault on him continued. The witnesses were unsophisticated people, who witnessed what must have been a horrific and frightening experience. The three complainants as well as the two rape victims were moreover themselves the victims of assaults.

Against this background one would hardly expect the eyewitnesses' accounts to coincide on every minute detail however small and unimportant it may be. Considerable time was spent by defence counsel in cross-examination in attempting to expose contradictions and discrepancies between the versions of the different witnesses as well as between their evidence in court and the contents of their police statements. Regarding the latter counsel had the advantage of comparing the witnesses' evidence in this court with, in most instances, two police statements made by the witnesses. This situation arose because a murder docket was opened only during May 2000, some seven months after the events had occurred. The opening of the docket on a charge of murder apparently required further statements from the witnesses, which were obtained.

Before dealing with the contradictions and discrepancies that were revealed it is useful at this stage to refer to the approach adopted by our courts in evaluating the weight to be attached thereto.

In S v Bruinders en 'n Ander 1998 (2) SACR 432 (SEC) Horn AJ (as he then was) said in this regard:

‘Ek is van mening dat ten einde 'n Staatsgetuie te diskrediteer sover dit sy getuieverklaring betref, dit steeds 'n vereiste is dat daar 'n wesentlike afwyking deur die getuie van sy getuieverklaring moet wees alvorens 'n negatiewe afleiding gemaak kan word. Nie-wesenlike afwykings in 'n getuieverklaring sal nie noodwendig afbreuk doen aan die gehalte van 'n Staatsgetuie se getuienis as 'n geheel nie. Die doel van 'n polisieverklaring is om besonderhede van 'n misdaad te bekom sodat daar besluit kan word of die beskuldigde vervolg moet word. Die getuieverklaring is nie om die getuie se getuienis in die hof vooruit te loop nie. Dit is vergesog om van 'n getuie te verwag om in sy getuieverklaring reeds presies dieselfde weergawe te verskaf as wat hy in die ope hof gaan getuig. (Sien in dié opsig die uitspraak van Cloete R in Shabalala v Attorney-General Transvaal and Another; Gumede and Others v Attorney-General Transvaal 1995 (1) SA 608 (T) op 625F-626A). Getuieverklarings bly nuttige ammunisie vir kruisondervraging, maar dan moet dit in konteks oorweeg word en sal die aard en omvang van die afwykings in geheel in ag geneem moet word alvorens dit gesê kan word dat 'n getuie se getuienis as gevolg van sulke afwykings verwerp moet word.’

On this aspect Cloete J in Shabalala v Attorney-General Transvaal (supra) at 625E-G referred to par. 3.25 of the Botha Commission Report, which reads as follows:

‘Statements of witnesses are often taken down by inexperienced non-white and other police officials, all with the aid of an inexperienced interpreter, and mostly under difficult circumstances, and often at a stage upon which the alleged charge is still undetermined. The result is that reliance cannot always be placed on the accuracy and completeness thereof. They are not intended to serve as official documents at court proceedings, but are taken down in the course and as part of the police investigation into an alleged offence, and include everything that may possibly contribute to the identification of the offender, and thus often contain allegations which are irrelevant and not admissible as evidence. In R v Steyn 1954 (1) SA 324 (A), at 335 Greenberg JA drew attention to the difference between evidence given at a preparatory examination and statements made by the witnesses to the police in connection with the investigation of a case, and added:

“(T)here is a serious possibility that statements made to the police, which are made in entirely different circumstances, may be far from constituting this accurate representation and through inaccuracies may be a target for cross-examination which instead of revealing the truth, may obscure it.’

(See also S v Khoza 1994 (2) SACR 611 (W) 618b; S v Mlumbe and another 1991 (1) SACR 235 (A) 248b). I respectfully associate myself with the approach adopted in the judgments I have referred to.

The inconsistencies that were revealed can in my view be divided into three groups:

Firstly, there were minor varying details regarding time, location and sequence of the events. They show no more than what is to be expected, namely that eyewitnesses differ from one another in their accounts, mainly due to the different positions they were in when the events occurred.

Secondly, the fact that details which were often important and relevant were not disclosed by the witnesses when they made their police statements. One telling example will suffice: Ms Dlamini testified that after the initial assault on the deceased, accused 3 appeared in the shack. He asked for a knife and added that he wanted it ‘to cut the deceased's testicles off’. At that stage she said the deceased was lying at the door of the shack already seriously injured. In her first statement to the police, which was made on 1 November 1999 (exhibit M), she made no mention of accused 3. Two days later however she pointed accused 3 out at an identification parade, which was formally admitted by the defence. In her second statement, made on 15 August 2000, she does make mention of accused 3. This clearly shows that the absence of a reference to accused 3 in the witness' first statement was merely an omission and it does therefore not impair the reliability and the truthfulness of the witness' evidence.

The third group of inconsistencies requires serious consideration: Those are the inconsistencies which are apparent from the statements and that cannot be reconciled with either the witness' evidence or other statements made by the witness, and in respect of which no acceptable explanation was tendered. An apparent example thereof is the following: In her evidence Mohlale pertinently denied that she had seen the assault on Khumalo. In her first statement to the police however she in some detail describes the assault on Khumalo. In this statement it is recorded that she said the following:

‘They went behind Stanley's shack, where another man known as Khumalo was tied with fence so that he must not run away. All the five men started to assault Khumalo, who was tied up. They assaulted him with garden fork, knife, iron rod and an axe. They were all of them exchanging the weapon amongst themselves. After assaulting Khumalo they took him and put him in the toilet.’

Although being alive to the discrepancies that were revealed, I am required to consider the evidence as a whole. It is thus incumbent on this court to decide, having regard to the evidence as a whole, whether such differences are sufficiently material to warrant the rejection of the State's version.

In considering the evidence as a whole the accused's evidence must be assessed: It is only then, and having evaluated the evidence as a whole, that the court can decide whether the State has proved its case beyond reasonable doubt (Cf S v Ntsele 1998 (2) SACR 178 (SCA) 182b).

Accused 1 and 2 in their evidence admitted the presence of M and D in their shack during the incident. Accused 1 testified that D was his girlfriend and that she had been living with him in his shack for some months prior to the incident. Accused 2 testified that M was his girlfriend and that she had often visited him at the shack. Both the rape victims vehemently denied these allegations.

Accused 1 and 2 both testified that they arrived home from work during the evening on the day of the incident. D was busy preparing food. They asked her to bring water to wash themselves. Shortly thereafter M arrived on one of her regular visits. They all ate together and thereafter went to sleep. The accused both slept on the floor and the two women on the bed. Nothing untoward happened. They were woken up early in the morning by the noise of people throwing stones at their shack. Accused 1 opened the door and observed a group of people armed with objects like irons. He decided to flee. Members of the group chased him but he managed to escape. He eventually reported the incident to a BBR security official, who contacted the police, whereafter he was arrested. Accused 2 testified that he heard people outside the shack saying: ‘Here is one of them’. He also decided to run away. He intended going to the police station but instead found himself in Maharaka squatter camp, where he was later arrested. Both accused denied either having had sexual intercourse with the rape victims or having assaulted the deceased or any of the complainants.

Their denial, however, is palpably false. It is countered not only by the evidence of the State witnesses, the medical evidence, the results of the DNA analysis but also by the probabilities arising from the facts as a whole.

The medical evidence to which I have referred is the following: Dr Dire testified that he examined both the rape victims on 1 November 1999. Ms D presented with severe bruises and lacerations on the left side of her ribs and on the left breast. She had started her menses resulting from the rape on her. Because of the presence of blood in the vagina a further internal gynaecological examination was not possible. Dr Dire was of the opinion that her injuries were sexually related and that those injuries were inflicted by someone else.

Ms Mavuso presented with a swelling of the left lip and a swollen red eye which was in no way related to an infection. She experienced difficulty in walking due to what she described as ‘inside pain’. Her labia minora were tender and swollen. The walls of the vagina were lacerated and bruised. A white substance was found. Based on his clinical examination and observations Dr Dire was of the opinion that a recent forceful penetration had occurred.

I have already alluded to the evidence of Superintendent Thompson. The results obtained by her implicate accused 2 in the commission of rape on both the rape victims. Neither the medical evidence nor the evidence relating to the DNA tests was disputed. It has moreover not been suggested in argument that the evidence should not be accepted.

Against the background of the medical evidence and the results obtained from the DNA analysis the version proffered by the accused is simply untruthful and must accordingly be rejected as false. The medical and DNA results further corroborate the version of the two rape victims, proving beyond reasonable doubt that they were forcefully kept in the shack of accused 1 and 2, and that they were both raped by the two accused and the unknown third person. As I have mentioned, the rape charges have been dealt with by another court.

The only remaining issue is whether the accused assaulted the deceased and the complainants: The evidence of the State witnesses, which I have alluded to, implicates all three the accused. Both accused 1 and 2 as I have already found, falsely denied having known any of the State witnesses.

I turn now to consider the evidence of accused 3: He testified that he was at home in his shack at the Drie Hoek squatter camp at about 20h00 on the day of the incident when there was a knock on his door. He opened the door. Accused 1 was standing at the door with a garden fork with bloodstains on it, in his hand. Accused 1 informed him as follows: ‘We are killing the dog out there’. He added: ‘Come, let us go there’. Accused 3 followed him ‘to see what was happening’. They eventually arrived at a spot in the street where the deceased was lying. He was seriously injured. Accused 1 said to the deceased: ‘Say what you have said’. The deceased then started talking. He told accused 3 that he had wanted to burn accused 3's shack and that he had wanted to kill accused 3. Accused 3 inferred from what the deceased was saying that he referred to an incident during January when his shack was burnt down. He however never came to know who the culprit was. Accused 2 as well as the other persons mentioned by the State witnesses were behind accused 1 and they formed a group. The group consisted of accused 1, accused 2, accused 3, Matume, Pinky and Stanley. Accused 3 asked accused 1 why he was assaulting the people so badly. The reply was because stones were thrown at their shack. He reprimanded them not to do this to the deceased. Accused 3 decided to leave the scene. He was however asked by the group to buy them some beers. He refused and told them that he had no money. They persisted in asking him to buy beer. He then gave them R20,00 to buy beers. They started to sing. The deceased was crying. Accused 3 told him not to cry and to keep quiet. He then went back to his shack. Accused 3 denied having assaulted anyone on the scene.

Accused 3 was a most unimpressive witness. He was highly emotional while giving evidence. His version is self-destructive. Many questions put to him in cross-examination remain unanswered. His version is furthermore plainly improbable. His reasons for following accused 1 to the scene are less than convincing. The deceased's reaction when arriving on the scene, in referring to an earlier incident when accused 3's shack was burnt down, is a figment of his imagination. The deceased was at that stage seriously injured and one would certainly not have expected him to refer to such an incident at that stage. Accused 3 claimed to be a community leader. He attempted to convey to this court that he accompanied accused 1 in order to assist the deceased. He however did not assist the deceased at all. On the contrary, he handed money to the accused to buy beers. The reason for doing that, so he testified, was that he became frightened of accused 1, and furthermore because there was a group of people present. It simply makes no sense.

Accused 3's version is rejected as false. The evidence as a whole justifies as the only reasonable inference that he was asked by the accused to assist them to become part of the group to attack the deceased and the complainants.

In assessing the evidence of the accused I am mindful of the caution expressed in S v Mtsweni 1985 (1) SA 590 (A), that not too much weight must be attached to the fact that the accused have given untruthful evidence. That fact in isolation does not always justify the most extreme conclusion. In the circumstances of this case it is however a consideration to be weighed in the light of the evidence as a whole. The ultimate requirement of course is proof beyond reasonable doubt.

The evidence overwhelmingly proves the complicity of the accused in the commission of the crimes. Their evidence including the denial of their involvement is palpably false. The probabilities arising from the eyewitnesses' accounts, the medical and DNA evidence, all strongly support the version of the State witnesses. That being the situation, the discrepancies to which I have referred, pale into insignificance.

Having considered what I have set out thus far, the following are my findings:

1. Ms D and Ms M were held by force and against their will in the shack where accused 1 and 2 resided.

2. They were both assaulted and raped by accused 1, 2 and a third person.

3. Mr Khumalo, the uncle of Ms M, was informed of the kidnapping. They assembled in a group and attempted to rescue Ms M from the shack where she was kept.

4. Accused 1, 2 and 3 attacked the rescue group, consisting of inter alia the deceased and the complainants. Accused 1, 2 and 3 acted in common purpose, not only amongst themselves but also with the other members in their group, inter alia, Pinky, Stanley and Matume.

5. Acting in the furtherance of a common purpose the accused killed the deceased and assaulted the three complainants. In the light of all the circumstances of this case they acted with dolus directus.

It follows that the State has proved the accused's guilt on all the charges beyond reasonable doubt.

In the result the three accused are found guilty on counts 1, 2, 3 and 4, as charged.

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