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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

 

THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION OF THE HIGH COURT

MBOMBELA MAIN SEAT

 

CASE NO: CC 41/2019

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED.

01 February 2023

 

In the matter between:

 

THE STATE                                                                                       

 

And

 

ELVIS AARON ZULU                                                                        (THE ACCUSED)

 

JUDGMENT

 

RATSHIBVUMO J:

 

[1]        For almost a decade, fear gripped the residents of Pienaar, Kabokweni and Kanyamazane, the locations just outside the Kruger National Park. From around 2008, it became too risky to walk alone especially in the dark or in secluded paths. It was the kind of panic the inhabitants of these areas are too familiar with, especially during the times when dangerous animals would have escaped the neighbouring Kruger National Park. When that happens, one always has to watch his/her back when going about their business. Lonely walks at night would be forbidden.

 

[2]        It was however not any of the Big Five animals having escaped from the Kruger Park that they feared. It was normal human being or perhaps not so normal as he seemed to have lost his humanness, that they feared. A mere mention of what he was capable of, would send shivers down the spine of all who lived in the area. Once he captures his victims, they would be stabbed with a knife, hit with bottles, threatened to be shot, so as to subdue them. He operated in in gangs of two or three. Women would be robbed of their belongings, sexually violated as they screamed. Tombstones in the graveyards would be used as his bed upon which girls would be forced to lose their virginity while he gratifies his sexual desires without making use of condoms. He would thereafter invite members of his gang to come and also enjoy themselves, leaving the victims with permanent psychological wounds, some of which would never to heal.

 

[3]        Such were the horrific events that came back to life in this courtroom when women who were sexually violated lined up to tell in tears how they suffered at the hands of this stranger over the past two weeks. The victims did not implicate anyone (except in just one case directly linking the accused) but the unknown selfish villain of Kanyamazane, Kabokweni and Pienaar. The risk associated with the fact that no condoms were used in all of them was obvious in the trauma of the possible diseases the victims could have been infected with. The silver lining in the cloud is that through the semen left in the victims, there was hope that the DNA donor of the semen left in all these victims could be traced and unmasked.

 

[4]        With the above background, I now proceed to summarise evidence led by the State, most of which was not disputed, for reasons that it does not directly implicate the accused – but the “unknown man.” As evidence will show, the accused was arrested after he was pointed out by SN, the complainant in counts 1 to 4 in the indictment. All the other complainants could not identify the suspect. In all those charges, the accused was linked by forensic evidence.

 

[5]        Charges 1-4: Counts 1 & 2. Contravening section 3 of Act 32 of 2007 (Rape more than once). Count 3. Kidnapping. Count 4. Contravening section 120(6)(b) of Act 60 of 2000 (pointing another person with a firearm or an instrument believed to be a firearm). All these charges were allegedly committed against SN on 30 January 2011 at Pienaar, within the district of Kabokweni.

 

[6]        Initially, the accused pleaded Guilty to count 1 and Not Guilty to counts 2 to 4, to which he offered no plea explanation. The Guilty plea tendered in respect of count 1 was however altered in terms of section 113 of Act no. 51 of 1977 (the Criminal Procedure Act) after the accused indicated that he had sexual intercourse with SN, the complainant in these charges, with her consent.

 

[7]        SN: At the time she gave evidence, she was 38 years old. On 30 January 2011, she was 26. On that day at about 21h00 she was at Shishila Trust in Pienaar walking with the father of her children named N[1]. N had collected her from her parental homestead and they were going to his place of residence. On the way, they stopped at the shop to buy bread and chips. They left the shop and continued walking to N’s place of residence. After leaving the shop, she and N had a quarrel over whether she should be made to carry the bread he bought which was meant to be eaten by him alone. She refused to carry it. This annoyed N who was also drunk at the time so much that he decided to walk alone, leaving her following from behind at a distance.

 

[8]        It was at this stage that she came across a man who until that day, she only knew by sight. That man is the accused. He asked her if she was with the man walking in front of her and she confirmed. He asked her why he was carrying a slasher in his hand and she told him he was going to use it at home. He then pulled out a firearm and pointed her with it and told her not to look at him. He then led her to a yard on the side of the road into the outside pit toilet. Once in the toilet, he pulled up her skirt and told her to hold to the toilet seat with her hands and pulled down her panties. He then penetrated her with his penis from behind and had sexual intercourse with her without using a condom.

 

[9]        When he was finished, he led her out and walked up to the street with her. He handed her a second firearm while he kept the other one saying, if they meet anybody they should shoot that person. They however met no one until they got to a place where she was led into a dilapidated house with no doors and windows. Inside, it was just dark. Once inside, he made her to lie face up and lifted her skirt up and undressed her of her panties. He then inserted his penis into her vagina and had sexual intercourse with her. When he was done and he led her to another house, about three houses away. They entered the house and found a bed and a chair. He made no use of keys to unlock, but simply entered. He told her to sleep in bed while he sat on a chair nearby, with a firearm in his hand. He did not touch her again until the next day.

 

[10]       The next day in the morning, he asked her where she resided and she told him she resided at Matafeni. He accompanied her to where she was to fetch a taxi and also gave her R20 for taxi fare. As they walked, he asked her as to where he could get hold of her. She used his phone to send a “please call me” text to her mother’s phone. A taxi arrived and he signalled for it to stop and it did. She boarded alone and alighted at Kanyamazane. She then proceeded to N’s place and knocked but he did not respond. She proceeded to where his sister, Phindile resided and explained to her what happened the previous night. Phindile walked with her back to N’s place. Phindile knocked and N opened. Phindile then explained to him what happened and NS confirmed it. He then responded saying he did not think she was in danger when he walked and left her behind. He suggested to her that she should open a case at the police station and she agreed.

 

[11]       After opening a case for criminal investigations, she was taken to Rob Ferreira Hospital where she was attended to by the medical staff. Swabs were taken from her vagina for further examination. The first time she saw the accused, he was passing near her parental home in the company of a certain Mbuso whom she knew very well. She denied having been involved in a love relationship with the accused. The argument she had with N was over the carrying bread and had nothing to do with mistrust or infidelity. She did not consent to having sexual intercourse with the accused. She denied that she asked him to rescue her. She also denied that she was crying when she met him and that she said she was afraid of N. She had been in love with N since 2002 and would not break up with him over a trivial issue regarding the carrying of bread.

 

[12]       She is the one who pointed out the accused to the police who arrested him. The accused was however released on bail and it so happened that the police told her that they were looking for him again. She saw him and had him arrested the second time. After his second arrest, the accused was not given bail again.

 

[13]       Nkosinathi Mduduzi Nhleko: He is the investigating officer in all the dockets in which the accused was linked through his DNA. He was not the original investigating officer in these cases. Although the docket was opened at Kanyamazane in January 2011, the accused was only arrested on 01 May 2011 after he was pointed out by SN, the complainant. This is the information he acquired in the docket as by then he was not involved in the case. The accused was however released on bail on 26 May 2011. He attended court throughout even after the case was transferred to the Regional Court. His last court appearance was when the case was postponed to 16 January 2013, for he did not appear on that day. Coincidentally, it was at the same time that the accused was being linked to six other docket through forensic evidence. It was only after this linkage that he was tasked with the further investigations in all these dockets. He only managed to arrest the accused on 23 November 2018 again, with the help of SN who pointed him out to him.

 

[14]       N: He is the man referred to by SN as a father to her two children. He confirmed that they had two children born 2004 and 2007. He confirmed that on the date of the incident, he quarrelled with SN which led him to walking alone ahead, a decision he lived to regret as it made him feel like he failed to protect her. The quarrel was not serious enough to warrant a physical fight. When he noticed that she was not appearing from where he had anticipated her, he walked back looking for her and even went to her home, but he could not find her. From there, he went to his home and slept. It was only on the following day that SN and his sister Phindile came and told him that she was raped by a person she knew by sight.

 

[15]       Exhibit file marked as Exhibit F was handed in as evidence containing statements compiled in terms of section 212 of the Criminal Procedure Act. The following statements from Exhibit F deserve to be mentioned:

 

A.        Exhibit F1: A statement by Constable Patrick Percy Fakude. In it he stated that he was stationed at Kanyamazane Police Station and that he is the one who took SN to Rob Ferreira Hospital on 01 February 2011, where she was examined by Dr. AS Voster. He also handed the Sexual Assault Kit with seal no. [....]  to him. Dr. Voster opened it and sealed it after placing the collected sample therein and handed it back to him. The Sexual Assault Kit was thereafter kept in safe custody in a steel cabinet in a lockable office before it was transported to the forensic science laboratory in Pretoria.

 

B.        Exhibit F2: A statement by Dr. Andre S Voster who examined SN on 01 February 2011 at 00h00 and recorded his findings in the medical report known as J88. He also collected the sample from SN and placed the same in a forensic bag with seal number [....]  and sealed it before handing the same back to Const Fakude.

 

C.        Exhibit F6: A statement by Constable Phephile Casandra Sigudla to the effect that she is the one who transported a sealed evidence bag with seal no. [....] containing the Sexual Assault Evidence Collection Kit with seal no. [....]  to the Forensic Science Laboratory in Pretoria on 12 April 2011. The kit was received by LN Mabokela who works at the forensic science laboratory.

 

D.        Exhibit F7: A statement by Lorraine Ntebogeng Mabokela, an Administration Clerk attached to the Biology Section of the Forensic Science Laboratory in Pretoria to the effect that on 12 April 2011, she received a sealed evidence bag with seal no. [....] and marked Kanyamazane [....] .

 

E.        Exhibit F8: A statement by Captain Charlotte Mthethwa, a Forensic Analyst at the Forensic Science Laboratory in Pretoria to the effect that on 28 April 2011, she received from the Administration component of the Biology Section of the Forensic Science Laboratory, a sealed evidence bag with seal no. [....] and marked Kanyamazane [....] containing 18 sealed boxes and envelopes all of which had a seal number [....]  with two different tail end alphabets. She further recorded that she examined these exhibits by a process requiring skill in Biology and detected semen in four of them:

 

i.One swab contained in a sealed Cervical Os swab guard box with reference number [....] .

ii.One swab contained in a sealed Vaginal Vault swab guard box with reference number [....] .

iii.One swab contained in a sealed Vestible swab guard box with reference number [....] .

iv.One panty contained in a sealed paper bag with reference number [....] .

 

[16]       Charges 5-7: Counts 5 & 6. Contravening section 3 of Act 32 of 2007 (Rape of a child). Count 7. Kidnapping. All these charges were allegedly committed against NGM on 19 February 2011 at Pienaar, within the district of Kabokweni. The accused pleaded Not Guilty to all these charges and tendered no plea explanation except to record that he knew her very well.

 

[17]       NGM: She is from Daantjie Trust in Pienaar. She was born on 10 March 1995. On 19 February 2011 she was 15 years old. On that day around 19h00, she was in the company of her friends, Lindo and Sharon coming from the water tank going to their respective residents. She came across Dumisa, her boyfriend near Goboza complex. Dumisa then walked with her accompanying her home until where they came across her brother who told her that her father was looking for her. Dumisa turned back and she proceeded home alone. When she came to Skop-Donor barbershop, she met six men. Five of them walked past and one of them remained and grabbed her saying he wanted her contact numbers. She responded saying she did not have a phone. He then took out a knife with which he stabbed her on her lower and upper arm. She cried as she bled profusely from her injuries.

 

[18]       He then held her by her neck using his arm and dragged her to the bushes. He threatened to shoot her if she continued crying. In the bushes, he told her to undress her pants and lie down on the ground which she did. He then undressed his pants, took his penis and inserted it into her vagina and had sexual intercourse with her. When finished, he again demanded her contact details. She again told him she did not have a phone. He slapped her with an open hand. He told her to dress and walked with her having put his hand around her waist so as to conceal a knife he held against her body.

 

[19]       They walked to a group of five men who were waiting for him and together with them, they walked a long distance to a place unknown to her. They reached a two roomed house which he led her into. When inside, he threw her on a bed and told her to undress, slapping her twice to stop her from crying. She undressed herself and he also undressed himself of his pants and got on top of her and sexually penetrated her again. When he finished, he laid beside her on a bed. She rose up and dressed herself and she sat there and cried. He rose up and told her that she was making noise. He then told her to undress again and he once more had sexual intercourse with her. She did not sleep as she just sat and cried the whole night. In the morning around 4 am, he had sexual intercourse with her for the last time. When he finished he dressed up and got out and locked the door from outside using what appeared to be a padlock.

 

[20]       She tried opening the door from inside but she could not. When he came back a while later, he poured water in a basin and told her to bath so they could go. She did not bath but pretended to be doing so using her hand. They walked out at daybreak and found another man at the gate waiting for them. As they walked, she took a closer look at the man who violated her so she could be able to identify him later. The two men left her when they reached the main road and they took one direction and she took a different one. The distance she walked from the two roomed house to her home could be about 3 hours.

 

[21]       After reaching her home, she went and told her aunt BM, as to what happened to her. BM called her father and informed him what she had reported to her. Her father requested her aunt to accompany her to the police station which she did. At the police station, she opened a case and was also taken to Kanyamazane Clinic where she was medically examined. At the clinic, her pubic hair and swabs from the vagina were collected for further investigations.

 

[22]       There is a time after this incident when she saw the man who violated her. That man is the accused. At the time he was with her father at the Kabokweni court yard and she was outside. She shouted to her father. When the accused heard her calling her father, he fled. She proceeded to tell her father that the man who fled was the one who raped her. He expressed a sense of being surprised saying he did not know. On another day, she saw him seated with her brother. When the accused saw her, he looked down. She immediately left that place.

 

[23]       The lengthy cross examination by the accused focused in trying to show her that he knew her very well, to which she conceded that he may have known her, but she did not know him. She denied his version to the effect that she also knew him. He however denied having had sexual intercourse with her. She was not involved in the arrest of the accused.

 

[24]       Exhibit file marked as Exhibit G was handed in as evidence containing statements compiled in terms of section 212 of the Criminal Procedure Act. The following statements from Exhibit G deserve to be mentioned:

 

A.        Exhibit G3: A statement by Lucy Thandi Themba, a Forensic Nurse attached to Tekwane Clinic who examined NGM on 20 February 2011 at 11h54. She also collected the sample from NGM and placed the same in a forensic bag with seal number [....]  and sealed it before handing the same back to Const TW Sibiya.

 

B.        Exhibit G5: A statement by Constable Thobile Pretty Simba to the effect that she is the one who transported a sealed evidence bag with seal no. [....]  containing the Sexual Assault Evidence Collection Kit with seal no. [....]  to the Forensic Science Laboratory in Pretoria on 12 April 2011. The kit was received by Esther, a Data Typist who works at the forensic science laboratory.

 

C.        Exhibit G6: A statement by Mothate Esther Maswanganyi, an Administration Clerk attached to the Biology Section of the Forensic Science Laboratory in Pretoria to the effect that on 12 April 2011, she received a sealed evidence bag with seal no. [....]  and marked Kanyamazane [....] .

 

[25]       Charges 8-10: Count 8. Contravening section 3 of Act 32 of 2007 (Rape by more than one person in furtherance of a common purpose). Count 9. Kidnapping. Count 10. Contravening section 120(6)(b) of Act 60 of 2000 (pointing another person with a firearm or instrument believed to be a firearm). All these charges were allegedly committed against NNM on 21 April 2011 at Pienaar, within the district of Kabokweni. The accused pleaded Not Guilty and offered no plea explanation on all these charges.

 

[26]       NNM: She was born on 02 September 1992. On 21 April 2011 she was 18 years old. On that day, and at about 19h00, she left her home to buy a soft drink at a nearby Mashego shop. When she crossed the street in order to get to the shop, a man approached her and greeted. She did not greet him back as she did not know him. She proceeded into the shop and bought the soft drink. As she left the shop, she was approached by three men including the one who had greeted her earlier. The one who had greeted her was this time armed with a firearm while one of the other two had a knife. Although it was dark she could see these men as the electric lights from the shop illuminated the area. The three men were just unknown to her.

 

[27]       The gunman grabbed her with her clothes and led her into a dark house while the other two walked with him. The gunman told her that as she was fighting, she would henceforth be his wife. Once inside the house, he told her to undress and bend forward without looking at him, and she obliged. He then inserted his penis into her vagina from behind and had sexual intercourse with her while the other two men watched. He made no use of a condom. When he was finished, he called one of the two friends to come and also have sex with her. One of the two friends came and had sexual intercourse with her. He also did not use a condom. When the second man finished, the gunman invited the third man to also have sexual intercourse with her and he responded saying he was not interested.

 

[28]       At that stage, the gunman instructed her to kneel down and pray until 00h00. He further told her that if she was unwilling to pray, she would go with him as his wife committing robberies. He was however willing to leave her behind and come back to check on her in the morning if she chooses to pray. She chose to kneel down and pray. He then released her. She left and forgot her slippers and the soft drink she was carrying behind. She ran home and found her mother to whom she reported what happened.

 

[29]       Her mother called the police who came and took her to the police station where she laid the charges. She was also taken to Kanyamazane Clinic where swabs were taken from her vagina and handed over to the police for further investigations. The encounter at the hands of these men revived her injuries on her surgical stitches as on 23 March 2011she gave birth through caesarean section.

 

[30]       Much to her surprise, a child arrived at her home some three days later to inform her of a man who wanted her to go out and meet him. She went out only to find it was the gunman who had sexually violated her three days earlier. That man was the accused. He had asked her where she resided on the date of the incident and she told him. When she saw it was him who sent a child to come and call him, she ran back and told her mother about it. When she got out together with her mother, they found he was gone. She did not take part in the accused’s arrest as she had no names, contact details or his residential address.

 

[31]       The accused disputed her version saying he had never met her and he never had sexual intercourse with her.

 

[32]       N [....] 1 P [....] M [....] : She is NNM’s cousin. She testified that NNM reported to her what happened the night of the incident. She is the one who accompanied her to the police station to lay the charges. She could not recall if the police came and fetched them at home or if they went to the police station on their own. NNM’s biological mother died while she was still a child and now she resides with her grandmother and her aunt. She could not tell as to who NNM could have been referring to as her “mother” between these two, in her evidence. She is the one who told her grandmother and the aunt about the rape of NNM the following day. She does not know about the incident in which one of NNM’s rapists sent a child to call her.

 

[33]       Exhibit file marked as Exhibit H was handed in as evidence containing statements compiled in terms of section 212 of the Criminal Procedure Act. The following statements deserve to be mentioned:

 

A.        Exhibit H1: A statement by Sergeant Vusi Samuel Makamu. In it he stated that he was stationed at Kanyamazane Family Violence, Child Protection and Sexual Offences Unit and that he is the one who took NNM to Kanyamazane Clinic on 22 April 2011, where she was examined by Martha Mkhonto, a Forensic Nurse. He also handed the Sexual Assault Kit with seal no. [....]  to her. Ms. M Mkhonto opened it and sealed it after placing the collected sample therein and handed it back to him. The Sexual Assault Kit was thereafter kept in safe custody in a steel cabinet in a lockable office before it was transported to forensic science laboratory in Pretoria.

 

B.        Exhibit H2: A statement by Martha Mkhonto, a Forensic Nurse attached to Kanyamazane Clinic who examined NNM on 22 April 2011 at 11h40. She also collected the sample from NNM and placed the same in a forensic bag with seal number [....]  and sealed it before handing the same back to Sergeant Makamu.

 

C.        Exhibit H6: A statement by Sergeant Godfrey Luhlanga to the effect that he is the one who transported a sealed evidence bag with seal no. [....] containing the Sexual Assault Evidence Collection Kit with seal no. [....]  to the Forensic Science Laboratory in Pretoria on 29 April 2011. The kit was received by SK Ntuli, a Data Typist who works at the forensic science laboratory.

 

D.        Exhibit H7: A statement by Selina Khelina Ntuli, an Administration Clerk attached to the Biology Section of the Forensic Science Laboratory in Pretoria to the effect that on 29 April 2011, she received a sealed evidence bag with seal no. [....] and marked Kanyamazane [....] .

 

E.        Exhibit H8: A statement by Warrant Officer Tsienyana Leah Montso, a Forensic Analyst at the Forensic Science Laboratory in Pretoria to the effect that on 16 May 2011, she received from the Administration component of the Biology Section of the Forensic Science Laboratory, a sealed evidence bag with seal no. [....] and marked Kanyamazane [....]  containing 09 sealed boxes all of which had a seal number [....]  with two different tail end alphabets. She further recorded that she examined these exhibits by a process requiring skill in Biology and detected semen in four of them:

 

i.One swab contained in a sealed External Anal swab guard box with reference number [....] .

ii.One swab contained in a sealed Rectal swab guard box with reference number [....] .

iii.One swab contained in a sealed Perineum swab guard box with reference number [....] .

 

[34]       Charges 11-13: Count 11. Contravening section 3 of Act 32 of 2007 (Rape by more than one person in furtherance of a common purpose). Count 12. Kidnapping. Count 13. Robbery with aggravating circumstances in which R350 and a cell phone were robbed making use of a firearm. All these charges were allegedly committed against RTK on 10 September 2011 at Pienaar, within the district of Kabokweni. The accused pleaded Not Guilty and offered no plea explanation on all these charges.

 

[35]       RTK: She was born 26 November 1989. On 10 September 2011 she was 22 years old. On that date she travelled from her home in Msogwaba Trust in Pienaar to Thekwane where she asked for money to buy food from her aunt. Her aunt gave her R350. When she left, she packed a bag containing some of her clothes she left there in the past. She had two cell phones and even hid R200 at the back of one of them, between the phone and pouch. She put R150 in the bag and R20 for transport in her jeans’ pocket. Her aunt accompanied her only up to the gate and she proceeded further alone. At that time, it was late in the afternoon and it was starting to get dark.

 

[36]       She walked for about 30 to 45 minutes looking for transport. She signalled for a taxi to stop and it stopped a long distance away from her due to heavy traffic on the road. It may have taken her about five minutes to reach where it was. Shortly before she could reach it, two men crossed the road to where she was walking. One of them approached her and hugged her from the front in a manner that suggested to onlookers that they were lovers. He held a firearm in his hand. The other man was carrying a knife. The gunman told her that if she did anything he would blow her with a firearm. He then told the driver to go saying it was okay as he came to meet her. The driver asked her if she was okay as he was waiting for her all along. She responded saying she was okay and that he could go.

 

[37]       The two men took her to where there is a tavern into a house that was filthy and smelling urine. Once inside, the gunman demanded her phones and money and she gave him one phone and R150 saying it was the only money she had. The man armed with a knife unpacked her clothes from the bag and found the other phone which had cash at the back and took it. She asked for the SIM card that was inside and the gunman agreed that his friend could take out the SIM card and give it over to her. As he opened the phone, he found cash that was at the back. The gunman then slapped her with an open hand.

 

[38]       The gunman then told her to undress. When she refused, he slapped her and took a knife from his friend with which he cut open her jeans. He undressed her and inserted his penis into her vagina and had sexual intercourse with her without using a condom. When he ejaculated, he withdrew his penis and took her Barbie t shirt and ejaculated on it. He then offered his friend to also have sex with her, but he declined. She then dressed up, but could not button the jeans as it was torn by a knife, so she held it by the hand.

 

[39]       The gunman then told her to get down on her knees and say her last prayers. She prayed as instructed saying “my prayer is that if you shoot me, please don’t shoot on my body but on my head so I die in peace. I also wish you let me know what my sin is as you got everything you wanted in me. You took all I had and also violated me sexually.” At that stage, the knifeman pleaded with the gunman to leave her alone. The knifeman then told her to rise and run. The gunman fired a shot by her feet. She saw the stars and ran like she lost her mind. She ran until she found herself on a tarred road on a speed hump with cars and buses hooting for her.

 

[40]       A motorist stopped and took her into his car and drove a distance and parked by the side of the road and asked her what happened. She told him what happened and he decided to take her to the police station. At the police she opened a case before being ushered to Themba Hospital. There, she was attended to by the medical staff. As they struggled to find semen in her vagina, she told them to find a Barbie t shirt which the gunman had ejaculated into in her bag. They searched and found in it, fresh semen in it and took it for further investigations. They allowed her to sleep over night and offered her social worker services before releasing her the next morning. The two men were unknown to her and she has not met them again from that day.

 

[41]       Exhibit file marked as Exhibit D was handed in as evidence containing statements compiled in terms of section 212 of the Criminal Procedure Act. The following statements deserve to be mentioned:

 

A.        Exhibit D1: A statement by Warrant Officer TD Lekhuleni. In it he stated that he was stationed at Pienaar Police Station and that he is the one who took RTK to Themba Hospital on 11 September 2011, where she was examined by Dr Eliando Lopez. He also handed the Sexual Assault Kit with seal no. [....]  and blood collection kit with seal no. [....]  to him. Dr. Lopez opened and sealed the bags after placing the collected sample and the blood sample therein and placed them in a forensic bag with seal no. [....]  and handed it over to him. The exhibit bag was handed over to Sergeant PL Sanderson by Warrant Officer TD Lekhuleni.

 

B.        Exhibit D3: A statement by Dr. EE Lopez who examined RTK on 11 September 2011 at 00h46 and recorded his findings in the medical report known as J88. He also collected the sample from RTK and placed the same in a forensic bag with seal number [....] , which he sealed again. He also collected blood sample which he placed in a forensic bag with seal no. [....] . The two forensic bags were placed in another forensic bag which he sealed, with seal no. [....]  and handed the same back to Warrant Officer Lekhuleni.

 

C.        Exhibit D3: A statement by Sergeant Godfrey Luhlanga to the effect that he is the one who transported a sealed evidence bags with seal no. [....]  and [....]  contained in a forensic bag with seal no. [....]  to the Forensic Science Laboratory in Pretoria on 14 October 2011. The kit was received by ME Maswanganyi, a Data Typist who works at the forensic science laboratory.

 

D.        Exhibit D4: A statement by Mothate Esther Maswanganyi, an Administration Clerk attached to the Biology Section of the Forensic Science Laboratory in Pretoria to the effect that on 14 October 2011, she received a sealed evidence bag with seal no. [....]  and marked Pienaar [....] .

 

E.        Exhibit D5: A statement by Lieutenant Colonel David Sanyana Mtsweni, a Chief Forensic Analyst at the Forensic Science Laboratory in Pretoria to the effect that on 02 October 2011, he received from the Administration component of the Biology Section of the Forensic Science Laboratory, a sealed evidence bag with seal no. [....]  and marked Pienaar [....]  containing 09 sealed boxes all of which had a seal number [....]  with two different tail end alphabets. He further recorded that he examined these exhibits by a process requiring skill in Biology and detected semen in all of them. They were:

 

i.One swab contained in a sealed Vaginal Vault swab guard box with reference number [....] GV.

ii.One swab contained in a sealed Cervical swab guard box with reference number [....] GC.

iii.One swab contained in a sealed Internal Cervical swab guard box with reference number [....] GI.

iv.One swab contained in a sealed Vestible swab guard box with reference number [....] GB.

v. One swab contained in a sealed Vulva swab guard box with reference number [....] GE.

vi.One swab contained in a sealed Perineum swab guard box with reference number [....] GP.

vii.One swab contained in a sealed External Anal swab guard box with reference number [....] AE.

viii.One swab contained in a sealed Rectal swab guard box with reference number [....] AR.

ix.One swab contained in a sealed Oral swab guard box with reference number [....] OS

 

[42]       Charges 14-15: Count 14. Contravening section 3 of Act 32 of 2007 (Rape more than once). Count 15. Contravening section 120(6)(b) of Act 60 of 2000 (pointing another person with a firearm or an instrument believed to be a firearm). All these charges were allegedly committed against TLN on 02 November 2011 at Pienaar, within the district of Kabokweni. The accused pleaded Not Guilty and offered no plea explanation on all these charges.

 

[43]       TLN: She was born on 09 October 1992. On 02 November 2011, she was 19 years old. On that day, around past 16h00, she was walking alone alongside the graveyard near EJ Sengwane School in Msogwaba Trust in Pienaar. As she was walking, she met two men who asked to talk to her. She tried resisting and screamed and they warned her saying if she did not allow them to talk to her, they would shoot her. One of them had a firearm in his hand while the other was carrying a knife. The one armed with a firearm grabbed her and instructed her to undress. In the process, he put her on the ground. He told her not to resist, otherwise he would kill her. He also told her that he was Matsoroto and that he was well known in Shishila Trust. If she was to go around talking about him he would know of it and kill her.

 

[44]       He then put down the firearm and assisted her to undress the pants and panties. He told her to lie down on the grave on her back. When she resisted, he told her he would kill her. She then cooperated with him. He put his penis in her vagina and had sexual intercourse with her as she lied on her back, without using a condom. She was crying all along as it was painful. It was her first time to have sexual intercourse. When he finished, he rose up and invited his friend who had been watching, to come and also have sexual intercourse with her. The friend declined the offer. He then came back and had sexual intercourse with her again. When he finished he stood up and told his friend to shoot her. She pleaded with them not to kill her.

 

[45]       Although the two men were unknown to her, she noticed that the man who sexually penetrated her had a scar on his hand towards the elbow side. She then got up and dressed while the gunman kept on threatening that she must be shot. When freed, she ran alongside the graveyard crying heading home. Upon her arrival at home, she reported the incident to her sister, Lisa Ndlovu as her parents were not home. She also reported this to her now deceased grandmother, Alvina Makhubedu who was a nurse by profession. Her grandmother told her not to take bath. She accompanied her to the police station where she opened a case for criminal investigations.

 

[46]       She was thereafter taken to Themba Hospital where she was medically examined. Samples were also taken from her vagina. She took no part in the arrest of the accused. Ever since the incident, she easily gets overwhelmed by anger and have her mind overstretched. Of late, she is impatient. In 2016 she became epileptic, an illness that remains with her to this date. She has no idea as to what the cause thereof could be. She also feels unpleasant in losing her virginity under those circumstances.

 

[47]       The accused who displayed big dark scars on both his hands, disputed that such could have been the scars she saw then as he sustained the injuries that resulted in these scars from a car accident in 2016. To this, she responded saying that she made mention of the scar in her statement given to the police in 2011.

 

[48]       LIN: She is a younger sister to TLN. In 2011, she was 16 years old. She told of the events of 02 November 2011 when her big sister came home crying and reported that she was raped at the graveyard. She conveyed the report to her brother who immediately went out to look for the two men fitting the clothing description given by the victim, but he could not find them.

 

[49]       Exhibit file marked as Exhibit I was handed in as evidence containing statements compiled in terms of section 212 of the Criminal Procedure Act. The following statements deserve to be mentioned:

 

A.           Exhibit I1: A statement by Sergeant Vusi Samuel Makamo. In it he stated that he was stationed at Pienaar Family Violence, Child Protection and Sexual Offences Unit and that he is the one who took TLN to Themba Hospital on 02 November 2011, where she was examined by Dr. NT Mbowane. He also handed the Sexual Assault Kit with seal no. [....]  to him. Dr. NT Mbowane opened it and sealed it after placing the collected sample therein and handed it back to him. The Sexual Assault Kit was thereafter kept in safe custody in a steel cabinet in a lockable office before it was transported to forensic science laboratory in Pretoria.

 

B.           Exhibit I2: A statement by Dr. NT Mbowane who examined TLN on 02 November 2011 at 22h50 and recorded his findings in the medical report known as J88. He also collected the sample from TLN and placed the same in a forensic bag with seal number [....] , which he sealed again. He also packaged a panty of the victim in a forensic bag with seal no. [....]  which he placed in a forensic bag with seal no. [....] . The forensic bags were handed back to Sergeant Makamo.

 

C.           Exhibit I4: A statement by Sergeant Godfrey Luhlanga to the effect that he is the one who transported a sealed evidence bag with seal no. [....]  to the Forensic Science Laboratory in Pretoria on 30 November 2011. The kit was received by LN Mabokela, a Data Typist who works at the forensic science laboratory.

 

D.           Exhibit I7: A statement by Lorraine Ntebogeng Mabokela, an Administration Clerk attached to the Biology Section of the Forensic Science Laboratory in Pretoria to the effect that on 30 November 2011, she received a sealed evidence bag with seal no. [....]  and marked Pienaar [....] .

 

E.           Exhibit I8: A statement by Warrant Officer Verosha Gounden, a Forensic Analyst at the Forensic Science Laboratory in Pretoria to the effect that on 13 December 2011, she received from the Administration component of the Biology Section of the Forensic Science Laboratory, a sealed evidence bag with seal no. [....]  and marked Pienaar [....]  containing 07 sealed boxes all of which had a seal number [....]  with two different tail end alphabets. She further recorded that she examined these exhibits by a process requiring skill in Biology and detected semen in six of them:

 

i.One swab contained in a sealed Cervical swab guard box with reference number [....] GI.

ii.One swab contained in a sealed Cervical swab guard box with reference number [....] GC.

iii.One swab contained in a sealed Vaginal Vault swab guard box with reference number [....] GV.

iv.One swab contained in a sealed Vestible swab guard box with reference number [....] GB.

v. One swab contained in a sealed Vulva swab guard box with reference number [....] GE.

vi.One swab contained in a sealed Perineum swab guard box with reference number [....] GP.

 

[50]       Charges 16-18: Count 16. Contravening section 3 of Act 32 of 2007 (Rape by more than one person in furtherance of common purpose). Count 17. Robbery with aggravating circumstances in which 190 and a cell phone were robbed making use of a firearm. Count 18: Kidnapping. All these charges were allegedly committed against TS on 20 January 2012 at Pienaar, within the district of Kabokweni. The accused pleaded Not Guilty and offered no plea explanation on all these charges.

 

[51]       The complainant in these charges, TS, was not called to give evidence in person as she was said to be out of the country in Mozambique. Although she had attended court on several occasions in the past when the case was postponed for trial, she was currently unreachable. The court accepted a statement made by this witness in terms of section 222 of the Criminal Procedure Act after an application by the State for its acceptance. This was done after it was made clear that in the statement, the complainant does not implicate the accused in any manner or identify any suspect as she merely makes allegations against people who were unknown to her. The statement does not as such attempt to prove any disputed fact.

 

[52]       TS: In a statement received and marked as Exhibit E, TS alleges that she was born on 14 February 1992 meaning she was 19 years old on 20 January 2012. On that date she left her home at Zomba Newscom to go and attend her friend’s hair dressing at Daantjie Trust. She finished attending to her around 18h00 and came back home in a quantum taxi. At Msogwaba, the driver told her to alight so she could fetch another taxi as he was proceeding to Tekwane. She did as she was told. As she was waiting for another taxi there by the main road, two men who were on the opposite side of the road crossed over to where she was. They started insulting her and told her to go with them. When she refused, they started assaulting her with an empty beer bottle all over her body, while the other one went to the extent of stabbing her with a knife on her head. She then submitted and walked with them.

 

[53]       The two men led her to a cemetery next to EJ Sengwane Secondary School. Once there, they searched her and took from her a Nokia cell phone, R190 in cash and a brown jersey. One of them undressed her of her clothes and ordered her to lie down which she did. He then inserted his penis into her vagina and had sexual intercourse with her without using a condom. When he finished, he called his friend to also come and “enjoy”. The friend came and also had sexual intercourse with her without a condom. When he finished, they told her to dress up and go which she did. She went back to the main road where she was found by the police walking up the road, and they took her to the police station where she opened a case.

 

[54]       She concluded her statement by averring that she would be able to identify the two men if she was to see them again. When in her company, the two addressed each other as Matsoroto and Sifiso.

 

[55]       N [....] 2  E [....]  M [....] 2 : Evidence by this witness was initially provisionally accepted where it related to what she was told by TS as it amounted to hearsay. At that stage, the State still had hopes that they would be able to call TS to testify. When this failed, an application for admission of hearsay evidence by the State was allowed in terms of the Law of Evidence Amendment Act no. 45 of 1988. She testified that she was a police officer who attended to TS when she arrived at the police station to open a case.

 

[56]       At the time of giving evidence, she had 13 years’ experience as a police officer and she was a Sergeant. It was on 20 January 2012 while she was on duty at Pienaar Police Station doing night shift that TS came at about 23h50. Although TS was from Mozambican, they spoke in Seswati and could understand each other well. She is the one who took a statement from TS as per above. Repeating her evidence here is in unnecessary.

 

[57]       Exhibit file marked as Exhibit J was handed in as evidence containing statements compiled in terms of section 212 of the Criminal Procedure Act. The following statements deserve to be mentioned:

 

A.        Exhibit J1: A statement by Constable SM Nkosi. In it he stated that he was stationed at Pienaar Police Station and that he is the one who took TS to Themba Hospital on 21 January 2012, where she was examined by Dr. CM Zungu. He also handed the Sexual Assault Kit with seal no. [....], Collection of Forensic Evidence with Clothing Collection kit with seal no. [....] and Individual and Crime Scene Body Fluid Evidence Collection Kit with seal no. [....] to him. Dr. Zungu opened the bags and sealed it after placing the evidence material acquired from the patient therein and handed them back to him. The forensic bags were thereafter kept in safe custody in a steel cabinet in a lockable office before being transported to forensic science laboratory in Pretoria.

 

B.        Exhibit J4: A statement by Dr. CM Zungu who examined TS on 21 January 2012 at 08h15. He also received from Constable Nkosi the Sexual Assault Kit with seal no. [....], Collection of Forensic Evidence with Clothing Collection kit with seal no. [....] and Individual and Crime Scene Body Fluid Evidence Collection Kit with seal no. [....] that he used to obtain a sample from the patient, TS and sealed with a new seal bearing the same number. The J88 he completed was taken from D2 kit with seal no. [....]. He renamed seal no [....] to [....] to match with the collection of forensic DNA evidence from an Adult Patient of Sexual Assault Kit (D1). The forensic bags were sealed and handed back to Constable SM Nkosi. The contents of this statement were also repeated as viva voce evidence by Dr. Zungu as he was called by the State as a witness.

 

F.         Exhibit J6: A statement by Sergeant TG Mahlalela to the effect that he is the one who transported a sealed evidence bag with seal no. [....]XX contained in a sealed forensic bag with seal no. [....] to the Forensic Science Laboratory in Pretoria on 15 February 2012. The kit was received by SI Jones, a Data Typist who works at the forensic science laboratory.

 

G.        Exhibit J7: A statement by Warrant Officer Seroro Johannes Moeng, a Laboratory Assistant at the Forensic Science Laboratory in Pretoria to the effect that on 12 March 2012, he received from the Administration component of the Biology Section of the Forensic Science Laboratory, a sealed evidence bag with seal no. [....] and marked Pienaar [....]containing 07 sealed boxes all of which had a seal number [....] with two different tail end alphabets. He further recorded that he examined these exhibits by a process requiring skill in Biology and detected semen in all of them. They are:

 

i.One swab contained in a sealed Cervical swab guard box with reference number [....]GI.

ii.One swab contained in a sealed Cervical swab guard box with reference number [....]GC.

iii.One swab contained in a sealed Vaginal Vault swab guard box with reference number [....]GV.

iv.One swab contained in a sealed Vestible swab guard box with reference number [....]GB.

v. One swab contained in a sealed Vulva swab guard box with reference number [....]GE.

vi.One swab contained in a sealed Perineum swab guard box with reference number [....]GP.

vii.One swab contained in a sealed External Anal swab guard box with reference number [....]AE.

 

[58]       Charges 19-21: Count 19. Contravening section 3 of Act 32 of 2007 (Rape more than once and by more than one person in furtherance of common purpose). Count 20. Robbery with aggravating circumstances in which a cell phone was robbed making use of a firearm. Count 21: Kidnapping. All these charges were allegedly committed against PSS on 15 November 2014 at Pienaar, within the district of Kabokweni. The accused pleaded Not Guilty and offered no plea explanation on all these charges.

 

[59]       PSS: She was born on 13 July 1997. On 15 November 2014, she was 17 years old. On that date, and at night, she was seated with a friend at Mandla’s place waiting for a friend’s boyfriend named Lifa to arrive. He arrived and took her friend along and she remained there alone. She remained there for a while before deciding to go out to the street to walk to her boyfriend’s home. As she walked along a foot path she saw two men walking from behind heading the same direction as her. When they reached her, one of them grabbed her by the neck and placed something against her back. The one who grabbed her pushed her head down so she should not look at them. The two men took her phone and ordered her to follow them. She tried to run away but the other man told her he would kill her if she runs. She stopped running and followed them.

 

[60]       The two men led her to an old tavern now turned into a church. She was led into a room with bricks and dirt. In the dark, one of them undressed her of the pants she was wearing. She did not wear panties underneath. The same man then undressed himself and came over her and inserted his penis in her vagina and had sexual intercourse with her. When he finished he called his friend to come and also have sex with her. The friend declined. She had by then dressed herself up. The man who had sexually penetrated her then came and undressed her and had sexual intercourse with her again. When he finished he dressed up and told her to put on her clothes. He told her to run away and not look back, which she did.

 

[61]       She testified further that she ran to her boyfriend’s place who was not home at the time. At his home, she found a phone that he was not using and used it to contact him and he called her back. She knew that he was not home as he was attending a church conference. His mother came after he called and asked her to come and attend to her. The next morning, her boyfriend’s mother accompanied her to the police station where she opened a case of rape. The police took her to Rob Ferreira Hospital where she was medically examined and samples were also taken from her. Tests were also conducted on her and she was told to come back later for the results. On the date she went for the results, she learned for the first time that she was HIV positive. She could not identify the man who sexually violated her.

 

[62]       TMN: He is the husband to PSS and has been married to her since 2013. It was him that PSS referred to as her boyfriend in her evidence. On 15 November 2014 he was away from his Msogwaba Trust home in Pienaar as he was attending a church meeting in Bushbuckridge. While away, he called PSS and informed her where to find the house key at his home. She wanted to go there but she told him that she was afraid to go there on her own. He told her that he was going to call his friend who would come and accompany her to his house. Moments later, she called him saying she would go there on her own as his friend was not coming.

 

[63]       Along the way, she called him to say there were men following her. When he called her later, her phone was off. About 30 minutes later, he received a ‘please call me’ message from a phone he had left at his home and called back. PSS answered the phone crying and she could not tell him what happened. He then called his mother to go to where PSS was to see why she was crying. His mother confirmed to him that PSS was raped. Upon his return the following day, PSS told him that she was taken to a tavern that has since been changed into a church where she was raped. He took her to the police station where she opened a case for criminal investigations.

 

[64]       Exhibit file marked as Exhibit K was handed in as evidence containing statements compiled in terms of section 212 of the Criminal Procedure Act. The following statements deserve to be mentioned:

 

A.        Exhibit K1: A statement by Sergeant G Luhlanga. In it he stated that he was stationed at Parkview Police Station and that he is the one who took PSS to Themba Hospital on 16 November 2014, where she was examined by Dr. CM Zungu. He also handed the Sexual Assault Kit with seal no. [....] to him. Dr. Zungu opened it and sealed it after placing the collected sample therein and handed it over to him after placing it into a another forensic bag with seal no. [....]. The Sexual Assault Kit was thereafter kept in safe custody in a steel cabinet in a lockable office before it was transported to forensic science laboratory in Pretoria.

 

B.        Exhibit K2: A statement by Dr. CM Zungu who examined PSS on 16 November 2014 at 16h50. He also collected the sample from PSS and placed the same in a forensic bag with seal number [....] and sealed it before handing the same back to Sergeant Luhlanga.

 

C.        Exhibit K6: A statement by Sergeant DM Msibi to the effect that he is the one who transported a sealed evidence bag with seal no. [....] contained in a sealed forensic bag with seal no. [....] to the Forensic Science Laboratory in Pretoria on 24 November 2014. The kit was received by RL Booysen, a Data Typist who works at the forensic science laboratory.

 

D.        Exhibit K7: A statement by RL Booysen, an Administration Clerk attached to the Biology Section of the Forensic Science Laboratory in Pretoria to the effect that on 24 November 2014, she received a sealed evidence bag with seal no. [....] and marked Pienaar [....].

 

E.        Exhibit K8: A statement by Warrant Officer Phindile Ntekele, a Forensic Analyst at the Forensic Science Laboratory in Pretoria to the effect that on 08 December 2014, she received from the Administration component of the Biology Section of the Forensic Science Laboratory, a sealed evidence bag with seal no. [....] and marked Pienaar [....] containing 03 sealed boxes and one sealed envelope. She further recorded that she examined these exhibits by a process requiring skill in Biology and detected semen in all of them. They are:

 

i.One swab contained in a sealed Posterior Fornix swab guard box with reference number [....].

ii.One swab contained in a sealed Vagina swab guard box with reference number [....].

iii.One swab contained in a sealed Vulva swab guard box with reference number [....].

iv.One pair of legging contained in a sealed paper bag with reference number [....]

 

[65]       Charge 22: Contravening section 120(10)(b) of the Firearms Control Act, no. 60 of 2000 (Possession of a firearm or imitation firearm for purposes of committing a crime). This charge was allegedly committed between 29 January 2011 and 15 November 2014 at Pienaar, within the district of Kabokweni. The accused pleaded Not Guilty and offered no plea explanation on this charge. No further evidence was led in respect of this charge except the evidence led above in respect of counts 1-21.

 

[66]       Exhibit file marked as Exhibit L was handed in as evidence containing statements compiled in terms of section 212 of the Criminal Procedure Act. The following statements deserve to be mentioned:

A.        Exhibit L1: A statement by Fakazile M Mthimkhulu, a Forensic Nurse attached to Kanyamazane Clinic to the effect that on 03 May 2011, she received a suspect named Elvis Zulu from Constable ST Mogane for purposes of collection of blood sample. She collected blood sample from the suspect and placed it in a forensic bag with seal number [....] and sealed it before handing the same back to Constable ST Mogane. According to Exhibit L5 which is a death certificate, ST (Susan Tina) Mogane died of unnatural causes on 07 March 2012.

 

B.        Exhibit L2 is Form D4 which reflects seal no. [....]TF. In this form the details of the suspect and his signature in consenting to the collection of the blood sample are contained. His ID number is also reflected therein as [....].

 

C.        Exhibit L3: A statement by Sergeant G Luhlanga to the effect that he is the one who transported a sealed evidence bag with seal no. [....] contained in a sealed forensic bag with seal no. [....]to the Forensic Science Laboratory in Pretoria on 12 May 2011. The kit was received by RL Booysen, a Data Typist who works at the forensic science laboratory. Exhibit L3A is an acknowledgement of receipt stamp by the Forensic Science Laboratory in Arcadia, Pretoria dated 12 May 2011. The full content of the forensic material in this forensic bag is contained in a statement by Alicia Opperman, a Forensic Analyst at the Forensic Science Laboratory. The contents were: one sealed blood sample collection kit with ref no. [....] and sealed envelope with ref no. [....] containing a reference sample with ref no. [....].

 

[67]       Exhibit file marked as Exhibit M was handed in as evidence containing statements compiled in terms of section 212 of the Criminal Procedure Act. The following statements deserve to be mentioned:

 

A.        Exhibit M1: A statement by Constable Nkosinathi Doctorson Nhleko to the effect that he is attached to the Detective Services at Kanyamazane FCS. In it he gives details of his qualifications and/or training that qualifies him to be an “authorised person” as defined in Criminal Law (Forensic Procedures) Amendment Act, no. 37 of 2013 to take buccal sample. On 26 November 2018, he collected non-inmate forensic DNA reference (buccal) sample for confirmation purpose from Elvis Aaron Zulu using a DB-DNA Reference Collection Kit with unique seal number [....]. This was further sealed in a forensic bag with seal no. [....]. This was collected in connection with Pienaar docket [....] . The forensic bag was thereafter kept in safe custody in a steel cabinet in a lockable office before it was transported to the forensic science laboratory in Pretoria.

B.        Exhibit M2 is a DB Form: Databasing-Buccal Sample Collection containing the details of Constable Nhleko and Elvis Aaron Zulu. EA Zulu whose ID number is reflected as [....] also signed the form giving consent for buccal collection. According to Exhibit M5, this forensic bag was received at the forensic science laboratory by an Administrative Clerk, Salome Mosibudi Motsoko on 30 November 2018.

 

[68]        Patrick Molefe Makwela: He testified that he was a Forensic Analyst and a Reporting Officer attached to the Biology Section of the Forensic Science Laboratory, Pretoria. His evidence was to explain the process followed in extracting DNA material from the evidence sample when received from various police stations in the country and in particular, his role in the analysis of the sample received in this case. He therefore testified on his statement that was received and marked as Exhibit N1. He proceeded to explain the contents of Exhibit N2, which is a statement deposed to in terms of section 212 of the Criminal Procedure Act by Remembrance Xoliswa Mdepa.

 

[69]       On 10 February 2015 he received case files pertaining to Kanyamazane CAS 369/01/11 LAB 72223/11. He evaluated the results from the samples that were subjected to DNA analysis, by a process requiring skill in Biology. The results obtained via the STR-DNA analysis system were:

 

Samples:	Gender marker	STR-LOCI
	Amelogenin Male(X:Y) Female(X:X)	D3S1358	vWA	FGA	D8S1179	D21S11	D18S51	D5S818	D13S317	D7S820
Cervical swab [....] [....]  “Ngomane”	X:Y	14:17	15:19	22:26	13:15	31:31	15:2:17	10:11	12:14	10:10
Reference sample [....][....] “Elvis Zulu”	X:Y	14:17	15:19	22:26	13:15	31:31	15:2:17	10:11	12:14	10:10

 

 

[70]       He therefore concluded that the DNA result obtained from the Cervical swab [....] ([....]  “Ngomane”) matches the DNA result of the reference sample [....]([....] “Elvis Zulu”). The most conservative occurrence for the DNA result obtained from the Cervical swab [....] ([....]  “Ngomane”) is one in 9.7 trillion people. The only instance therefore that people could have similar DNA characters is when they are identical twins.

 

[71]       Exhibit N2: This is a statement by Remembrance Xoliswa Mdepa, a Forensic Analyst and a Reporting Officer working at the Forensic Science Laboratory, Pretoria. On 20 February 2019 she received case files and DNA results pertaining to the following cases from the Administration Component of the Biology Section of the Forensic Science Laboratory:

 

1.               Pienaar CAS 169/11/14                        LAB 240460/14

2.               Pienaar CAS 79/09/11                           LAB 190247/11

3.               Pienaar CAS 08/11/11                           LAB 230642/11

4.               Pienaar CAS 160/01/12                        LAB 55016/12

5.               Kabokweni CAS 452/12/08                  LAB 1330/09

6.               Kanyamazane CAS 190/04/11            LAB 86960/11

7.               Kanyamazane CAS 205/02/11            LAB 72011/11

8.               Kanyamazane CAS 369/01/11            LAB 72223/11 (LAB 404462/18).

 

[72]       She recorded the sample exhibits she received for analysis under paragraph 4.1 of her statement as follows:

 

4.1.1    Vagina swab [....]; [....] S [....] Pienaar CAS 169/11/14.

4.1.2    Vaginal vault swab PA30000633651; [....] XX KHOZA Pienaar CAS 79/09/11.

4.1.3    Internal Cervical swab [....] ; [....] XX NDLOVU Pienaar CAS 08/11/11.

4.1.4    Cervical Os swab FSD-690671; 07D1AB2589XX NKOSI Kabokweni CAS 542/12/08.

4.1.5    External Anal swab FSD-713495; [....] XX MKHATSHWA Kanyamazane CAS 190/04/11.

4.1.6    Vaginal Vault swab [....] ; [....]  MASEKO Kanyamazane CAS 205/02/11.

 

[73]       She further recorded that she established the following from the samples that were subjected to DNA analysis, by a process requiring skill in Biology. The results obtained via the DNA analysis system were:

 

Samples:	Gender marker	STR-LOCI
	Amelogenin Male(X:Y) Female(X:X)	D3S1358	vWA	FGA	D8S1179	D21S11	D18S51	D5S818	D13S317	D7S820
Exhibits (par 4.1.1-4.1.6)[2]	X:Y	14:17	15:19	22:26	13:15	31:31	15:2:17	10:11	12:14	10:10
Vestible swab ([....]; [....]XX)	X:Y	14:17	15:19	22:26	13:15	31:31	15:2:16:17	10:11	12:14	10:10
Cervical swab (FSD-713495; [....] XX MKHATSHWA)	X:Y	14:17	15:19	22:26	13:15	31:31	15:2:17	10:11	12:14	*
Reference sample ([....] ; [....]  “ZULU ELVIS A”)	X:Y	14:17	15:19	22:26	13:15	31:31	15:2:17	10:11	12:14	10:10
Reference sample ([....]; [....] “EA ZULU”)	X:Y	14:17	15:19	22:26	13:15	31:31	15:2:17	10:11	12:14	10:10
Reference sample ([....] ; [....]XX “ELVIS ZULU”)	X:Y	14:17	15:19	22:26	13:15	31:31	15:2:17	10:11	12:14	10:10

 

 

[74]       She went on to record that the most conservative occurrence for the DNA result obtained in the above mentioned exhibits (par 4.1.1-4.1.6) is one in 9.7 trillion people. She concluded therefore that the DNA result of the reference sample ([....] ; [....]  “ZULU ELVIS A”) KANYAMAZANE CAS 190/04/11, ([....]; [....] “EA ZULU”) and ([....] ; [....]XX “ELVIS ZULU”) KANYAMAZANE CAS 369/01/11 is read into the mixture DNA result obtained from the Vestible swab ([....]; [....] PIENAAR CAS 160/01/12. The most conservative occurrence for the DNA result obtained from the Vestible swab ([....]; [....] PIENAAR CAS 160/01/12 for all the possible contributors to the mixture DNA results is one in 740 million people.

 

[75]       She further recorded that the DNA result of the Cervical swab (FSD-713495; [....] XX MKHATSHWA) KANYAMAZANE CAS 190/04/11 matches the DNA result of the reference sample ([....] ; [....]  “ZULU ELVIS A”) KANYAMAZANE CAS 190/04/11; ([....]; [....] “EA ZULU”) and ([....] ; [....]XX “ELVIS ZULU”) KANYAMAZANE CAS 369/01/11 at corresponding loci. The most conservative occurrence for the DNA result obtained from the Cervical swab (FSD-713495; [....] XX MKHATSHWA) KANYAMAZANE CAS 190/04/11 is one in 1.2 trillion people.

 

[76]       With this evidence case for the State was closed.

 

Case for the Defence:

 

[77]       Elvis Aaron Zulu: He was also a resident of Pienaar. Of all the complainants who gave evidence, it was only SN, the complainant in counts 1-4 whom he had sexual intercourse with. He met her at a shop and proceeded with her to his home where they had sexual intercourse on two occasions. The following morning, she asked him to accompany her as she was going to Matafeni. He also gave her R20. He was arrested and released on R1000 bail. He attended the court until he was told by the court interpreter to go and that he would be summoned to come to court on a new date. He did not run away.

 

[78]       As for NGM, the complainant in counts 5-7, he testified that he used to work and knock off late in the afternoon in his tiling business. The times that she mentioned as the time she was raped, he would be still on the road from work. Upon his return from work, he would be too tired to leave home. On the date alleged in the indictment (19 February 2011), he arrived home and found his friend L [....]  waiting for him. He stayed with him at his residence (accused’s) until he got inside the house and slept as he had to prepare for his next day’s work. He further alleged that he could not have raped her because he knew her very well and she also knows him.

 

[79]       As for the rest of the complainants, he denied having had sexual intercourse with them. He also questioned how they could not have identified him. He suspected that they were schooled by the State in order for them to come and identify him as the suspect as he did not know any of them. He could not explain how his semen was found in all of them if he did not have sexual intercourse with them saying, he was not familiar with how the police conducted their investigations.

 

[80]       He had intended to call L [....]  as a witness. After he was afforded an opportunity to consult with him he decided not to call him saying, he (L [....] ) says he could not remember the events he wanted him to testify about.

 

[81]       With this evidence, case for the defence was closed.

 

[82]       Closing arguments: Counsel for the State submitted that the accused should be convicted as charged in respect of all the charges.

 

[83]       The accused submitted that he should be acquitted of all the charges. He painted a picture of a man who was just handpicked by the investigating officer as a suspect simply because there were people who were raped. He could not tell what their motive could be against him.

 

[84]       It is trite that for a conviction to stand, the State must prove its case beyond a reasonable doubt.[3] There is no duty on the accused to prove his innocence. In case there is a version put forward by the accused, and should the same be reasonably possibly true, the accused is entitled to an acquittal. These are not separate and independent tests, but the expression of the same test (the proper test) when viewed from opposite perspectives. There is only one test in a criminal matters and that is whether the evidence establishes the guilt of the accused beyond a reasonable doubt or not.[4]

 

[85]       For evidence to establish the guilt of the accused beyond reasonable doubt, it will be so only if there is at the same time no reasonable possibility that an innocent explanation has been put forward that might be true. The two are inseparable, each being the logical corollary of the other. In whichever form the test is expressed, it must be satisfied upon a consideration of all the evidence. It suffices for present purposes to state that it is well settled that the evidence must be looked at holistically – See S v ML[5] & S v Van der Meyden,[6].

 

[86]       Facts Not Disputed:

 

a.         On 30 January 2011, the accused had sexual intercourse with SN, the complainant in counts 1-4) on more than one occasion and without using a condom.

b.         When the accused and SN met, she was in the company of her partner and a father to her kids, but he was walking ahead of her and she was behind.

c.         SN was made to spend a night in a house with the accused and the next day, he accompanied her to fetch a taxi home and even gave her R20 for taxi fare.

d.         SN took a taxi straight to where the father of her children resided where she reported the incident to him.

e.         The accused was arrested four months later after SN pointed him out to the police.

f.          Accused’s DNA was found in the swabs taken from SN’s vagina.

g.         On 19 February 2011, NGM, the complainant in counts 5-7, was raped by a man she did not know

h.         The rape took place more than once: Four to be exact: once at the bushes near where they met, twice in a house before sleeping, and lastly in the morning, and no condoms were used.

i.           NGM was 15 years old at the time of the incident.

j.           When she resisted and could not furnish her phone number to the man who raped her, he stabbed her on the upper and lower arm with a knife.

k.         She was made to spend a night with the man who violated her before being released the next day in the morning.

l.           Swabs were taken from her vagina for forensic examination.

m.       On 21 April 2011, NNM, the complainant in counts 8-10, was accosted by three unknown men, one of whom was armed with a firearm while another was armed with a knife.

n.         She was led into a building where two of the men had sexual intercourse with her making no use of condoms.

o.         She was told by the gunman that she should kneel down and pray if she did not want to go out with him committing the crimes throughout the night.

p.         Swabs were taken from her vagina for forensic examination.

q.         Three days after the incident, she saw the first man to rape her who was armed with a firearm at the time, after he sent a child to call her from home.

r.          On 10 September 2011, RTK, the complainant in counts 11-13 was accosted by two unknown men, one of whom was armed with a firearm while the other was armed with a knife.

s.         The two men forced her at gunpoint to abandon boarding a taxi that had stopped for her.

t.          They led her to a building at a tavern where the one armed with a firearm had sexual intercourse with her without using a condom.

u.         The gunman used RTK’s t shirt to ejaculate his semen into, or to wipe himself with it.

v.         The gunman invited his companion to also have sex with her but he declined.

w.        R350 in cash and two cell phones were taken from her before she was sexually violated.

x.         RTK was instructed to kneel down and say her last prayers, before she could be killed which she did.

y.         Swabs were taken from RTK’s vagina and/or her t shirt for forensic examination.

z.         On 02 November 2011, TLN, the complainant in counts 14-15 was accosted by two unknown men, one of whom was armed with a firearm while the other was armed with a knife.

 

aa.                The two men had stopped her as she was walking along the path next to the cemetery and EJ Sengwane School.

bb.                The gunman introduced himself to her as Matsoroto and that he was well known and feared in the area.

cc.                She was dragged to the cemetery where she was made to lie on a grave before she was raped by the man armed with a firearm without using a condom.

dd.                When he finished, the gunman invited his companion to also come and have sex with her but he declined.

ee.                The gunman came and had sexual intercourse with her again before releasing her.

ff.                Swabs were taken from TLN’s vagina for forensic examination.

gg.                On 20 January 2012, TS, the complainant in counts 16-18 was accosted by two unknown men, who were carrying beer bottles and a knife.

hh.                At that stage she was waiting for a taxi on the main road.

ii.                She was hit with the bottles and also stabbed on her head so as to subdue her, and she submitted herself to their demands.

jj.                The two men dragged her to a graveyard where they each had sexual intercourse with her, without using condoms.

kk.                They also took from her, a cell phone, R190 in cash and a jersey.

ll.                While in their company, the two men called each other, Sifiso and Matsoroto.

mm.             Swabs were taken from TS’s vagina for forensic examination.

nn.                On 15 November 2014, PSS, the complainant in counts 19-21 was accosted by two unknown men, at night who threatened to kill her.

oo.                They took a cell phone from her before leading her to a tavern, now changed into a church where one of them had sexual intercourse with her without using a condom.

pp.                When he finished, the man who sexually penetrated her invited his companion to also come and have sex with her but he declined.

qq.                Swabs were taken from her vagina for forensic examination.

rr.                Blood sample and confirmatory buccal swabs were taken from the accused for analysis and forensic examination on different occasions, first on 03 May 2011 and again on 26 November 2018.

 

[87]       Facts in Dispute:

 

a.         Did the accused propose love to SN?

b.         Did the accused have consensual sexual intercourse with SN?

c.         Where did the accused and SN have sexual intercourse? In the toilet? Dilapidated building or at his place of abode?

d.         Did the accused give a firearm to SN saying they should kill anyone they meet that night?

e.         Is the accused the unknown man who raped the complainants in all the other charges?

f.          How did the accused’s semen end up in all these complainants’ private parts?

 

Discussion: Counts 1-4

 

[88]       The version by the accused to the effect that he had consensual sexual intercourse is disputed by SN the complainant. In fact, the accused and SN’s versions are irreconcilable. The approach by the courts when confronted with two mutual destructive versions was restated by the Supreme Court of Appeal in Stellenbosch Farmers' Winery Group Ltd v Martell et Cie & Others[7]when it held,

 

“[O]n the central issue, as to what the parties actually decided, there are two irreconcilable versions. So, too, on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.”

 

[89]       The accused wants the court to believe that SN was not only a willing participant in the sexual encounter with him, but she was grateful to be rescued from a man who was so enraged that he could harm her with a slasher in his hands. In other words, the accused came at the time of her need. The behaviour of SN the moment she was on her own and able to exercise unquestionable free will does not portray a woman who had just been rescued from a violent partner. Instead of going to the police to lay charges against N, or to the Family Court to acquire a protection order against him so that he is barred from touching her, or at the very least, to her parental home to inform them of what happened between her him; she decides to go meet him. If she was rescued from the same man hardly 12 hours earlier, the decision to visit the same person defeats the logic.

 

[90]       As if that is not enough, the behaviour of the accused after the encounter with SN does not paint a picture of a man who had just fallen in love. If his version was to be believed, it would entail that he finally got the jewel he had always wanted. He proposed her twice before finding a moment to enjoy his honeymoon the whole night which came at the time that SN had an acrimonious separation from her soon to be ex-lover who threatened to use a slasher on her. One would expect him to first advise her on how to get separated from N permanently, not just for him to have a one night stand of sexual intercourse.

 

[91]       It would also be expected of a reasonable lover to have been in constant contact with her at least from the contact numbers of her mother which she gave him, to find out if she was still fine and safe from the slasher wielding man. The first time he saw her again from the honeymoon night would be four months later and even then, it was not due to his efforts to meet his lover, but because the said lover visited him in the company of the police.

 

[92]       The court finds therefore that the accused did not prove to be a reliable witness, and his version should be rejected as such. His version is inherently improbable when it is compared with that of SN, the complainant. Her version is not only probable and logical but it fits well into undisputed facts of the case. Her version the effect that she had seen the accused only once before that date is reasonable and probable. It would also make sense for the accused to instruct her not to look at him maybe because he thought he was a stranger and by then, he had not yet decided to take her to his home. Visiting two different buildings that night would suggest that he had no intentions to take her home where she would be able to see him on daybreak. But the enjoyment was too tempting to let her go while that night was still young. He decided to finally let her go with him to his place of abode or where he spent the night.

 

[93]       The accused’s modus operandi also seem to be in line with his style in other cases that he is linked by DNA. When the accused handed over a firearm to SN and told her that they must kill whoever they will meet that night, he was making similar threats he would make to NNM some three months later when he threatened that she would have to go with him committing crimes throughout the night. The accused wants the court to reject that version saying no rapist would hand over a firearm to his victim knowing she could use it on him. What the accused ignores is that the victim does not aver that the firearm was loaded with ammunition and was in good working condition. A possibility cannot be excluded that he may have been testing to see if she was bitter over what happened so much that she would want him dead. Perhaps that was his way to gauge if he should kill her. There is nothing unbecoming if a criminal would engage with his victim in that fashion.

 

[94]       The court finds therefore that the accused was armed with a firearm through which he subdued SN. If he was a lover, there would be no need to make use of a weapon. There would be no need for him to use the disused buildings for sexual intercourse while his own house was just nearby. Like many of his other victims, he had hoped that SN did not know him and would not be able to point him out in the future.

 

[95]       Even if the court was to accept the accused’s version of events, it lacks the consent part. Agreeing to be in love with a person does not entail agreeing to have sexual intercourse with him, hence even a spouse can be guilty of rape. This becomes more relevant for people who had just fallen in love minutes earlier and had never had sexual encounter in the past. Nowhere does the accused version contain a talk about each of them willingness to have sexual intercourse without making use of protection even though they were total strangers who did not know each other’s status in terms of sexually transmitted diseases. Before engaging in sexual activity with a woman you have just met that night, it is your responsibility to make sure that she is happy to engage with you in sexual encounter. One cannot just make a presumption in this regard.

 

[96]       It may be prudent to remark that had it not been for SN, this trial may not have taken place. For it was SN who gave identity and a face to a man whose DNA was to be found in so many women who simply could not identify their assailant. It was only after his blood was drawn that the DNA characters could be linked to other cases, including those to be opened in the future. The court accepts SN’s version of events and the accused’s version is rejected as false. The court finds therefore that there was no consensual sexual intercourse with SN and that she was raped twice that night.

 

DNA Evidence.

 

[97]       DNA (the abbreviation for Deoxyribonucleic Acid) is a type of testing which may be performed on a wide range of bodily samples, including blood and buccal swabs, with a view to proving guilt, establishing innocence or proving relationships. The test, a complex one, is based upon the scientific thesis that all individuals, save for identical twins, possess a unique genetic code held in the chromosomes which are made up of the complex chemical which is DNA.[8] Evidence of this nature is commonly referred to as forensic evidence due to the application of science in investigating facts, usually associated with, but not limited to the commission of crime.

 

[98]       Forensic criminal investigation was first introduced as evidence in courts in 1986 in United Kingdom when forensic analysts were asked to confirm the veracity of a confession in a case involving rape and murder.[9] In that matter, forensic evidence excluded the accused’s DNA and he was acquitted. It was only in 1987 that the first convictions were recorded with the advancement of science in criminal investigations.[10] In South Africa, forensic evidence slowly found its way into the criminal justice to the extent that as long as the admissibility issues are taken care of, its veracity remains unquestionable.[11]

 

[99]       It is infrequent for anyone to dispute the forensic evidence regarding the presence or absence of his/her DNA for obvious reasons. What is rather common is for the admissibility of such evidence to be challenged for non-compliance with the provisions of the law regarding the taking, storage, and transportation of the forensic material and whether the same was properly sealed at the time of analysis by the forensic analysts.[12] Courts are expected to be more vigilant when it comes to the basic requirements regarding the admissibility of forensic evidence especially in cases where the accused is unrepresented as in casu.

 

[100]    The above background is necessary because it is a difficult task, if not impossible, to have to challenge DNA evidence in a criminal trial. The accused was at pains in apportioning blame on the investigating officers for falsely implicating him. When the court engaged him on who that investigating officer would be and what his motive would be, it turned out to be a goose chase. The accused admitted that the current investigating officer only came into the picture long after he was already linked to all these cases through the DNA. He may be guilty of many things, but linking him to all these cases through his DNA cannot be one of them.

 

[101]    Equally, the accused exonerates the initial investigating officer who was involved in the case when his blood was drawn from him for DNA analysis. He went on to appreciate the fact that he saw to it that he was released on bail, a clear indication that he had no issues with him. With that, there remains no one to blame as all the other officers who worked in this matter to end up linking him, were only working on samples and identifying the DNA and not individual persons.

 

[102]    The accused’s attempt to blame anyone for his linkage through DNA has to fail. If anyone is to blame, it would be himself in that he left his semen in all these women. While scientific knowledge is necessary to read the DNA from the semen, one need not be a scientist to know that it takes sexual intercourse to deposit semen into female genitalia. The accused, a confessed married man seemed to have forgotten that when he claimed not to know how his semen ended up in the private parts of all these women. After all, all the victims testified on how the semen was left in them. It was not through any magic, but sexual intercourse with them. I have no reason to doubt that this is the only normal way that semen would be deposited in a woman’s vagina.

 

[103]    The evidence including DNA samples, implicating the accused is overwhelming. The accused’s version that he is not the man who raped the complainants on counts 5-21 simply has to be rejected as false, misleading and illogical. The accused’s modus operandi put him in several locations where these rapes were perpetuated. This would include, but not limited to his preferred locations for rape: disused buildings, taverns, bushes, his home (or possibly, friends’ homes) and cemetery next to EJ Sengwane Secondary School, his demands for the victims to pray after being raped, operating in groups of two, always being the first to rape and then offering the companion to also take part, making no use of condoms, being the one armed with a firearm and a friend being the one carrying a knife. It is however not through these similar facts that the accused’s conviction will stand. It is through his DNA characters that were extracted from the semen deposited in all these rape victims that he stands to be convicted.

 

[104]    Verdict:         The accused is found Guilty as charged in respect of all the charges – Counts 1-22.

 

[105]    Section 51 (1) of Act 105 of 1997 is applicable in respect of counts 1, 2, 5, 6, 8, 11, 14, 16 & 19; and section 51 (2) of Act 105 of 1997 is applicable in respect of count 3, 7, 9, 12, 13, 17, 18 & 20.

 

T.V. RATSHIBVUMO

JUDGE OF THE HIGH COURT

 

Dates Heard:                              16 – 31 January 2023

 

Judgment Delivered:                01 February 2023

 

For the State:                             Adv. TV Mahashe

Instructed by:                             DPP - Mbombela

 

For the accused:                      In Person

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