---

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 THE HIGH COURT OF SOUTH AFRICA

JOHANNESBURG

CASE NO:710/99,65/00

DATE:2001-03-19

In the matter between

THE STATE

and

MAGAGULA, ZWELI KOOS SABELO........................................................................Accused 1

KUBAYI, SUNNYBOY STYDOM NKABINDE.............................................................Accused 2

NKOSI, THABO BHEJI (Deceased)........................................................................... Accused 3

MAILE, BHEKI SKHUMBUSO....................................................................................Accused 4

MOKWENA, WALTER KENNIE................................................................................. Accused 5

JUDGMENT

WILLIS,, J: Originally there were five accused in this matter. One of the accused, Thabo Bheji Nkosi, died before the trial could commence. He was originally accused 3. In order to avoid confusion for witnesses the person who was originally accused 4, that is Bheki

Skhumbuso Maile became accused 3. Walter Kennie Mokwena who was originally accused 5 became accused 4.

All four of the accused stand indicted on 18 different counts: Count 1, the rape of E S at Honeydew on 6 May; Count 2, robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977, that is the robbery of E S at Honeydew on 6 May 1999; Count 3, unlawful possession of arms in contravention of section 1 read with section 39 of Act 75 of 1969, the Arms and Ammunitions Act; Count 4, unlawful possession of ammunition in contravention of section 36 read with section 39 of Act 75 of 1969; Count 5, housebreaking with intent to steal and theft, this was at the home of Andre Kehlert and Nancy Jane Bently, also at Honeydew, on 6 May 1999; Count 6, robbery with aggravating

circumstances as defined in section 1 of Act 51 of 1 977 this was the robbery of Esther Nchupetsang and J F B at Douglasdale on 28 May 1999; Count 7, robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977------ this was of Elijah Gafane at Douglasdale on 28 May 1999; Count 8, discharging an arm in contravention of section 39(1 )(i) read together with section 39(2} of Act 75 of 1 969 (also at Douglasdale on 28 May 1999}; Count 9, robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 of Steven Mperere Maake at Douglasdale on 28 May 1999; Count 10, robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977, i.e. the robbery of Matthew Nchupetsang at Douglasdale on 28 May 1999; Count 1 1, kidnapping of Gladys Mkhoni Makhwanya at Douglasdale on 28 May 1999; Count 12, robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 ------------ that is of Gladys Mkhoni Makhwanya at Douglasdale on 28 May 1999; Count 13, rape of G N M at Douglasdale on 28 May 1999; Count 14, rape of J F B at Douglasdale on 28 May 1999.; Count 15, robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977---------- that is of L E B and Richard Moore at Douglasdale on 28 May 1999; Count 16, rape of L E B at Douglasdale on 28 May 1999; Count 17, unlawful possession of arms in contravention of section 2 read with section 39 of Act 75 of 1969; Count 18, unlawful possession of ammunition in contravention of section 36 read with section 39 of Act 75 of 1969. Both counts 17 and 18 also relate to the events at Douglasdale on 28 May 1999.

All four of the accused pleaded not guilty to all counts. All of the accused exercised their rights in terms of section 11 5 of the Criminal Procedure Act to give no explanation of their plea. Accused 1 was represented by Mr Nkosi, accused 2 by Mr Skibi, accused 4 by Ms Mogolane and accused 5 by Mr Ngutshane. Ail four of the legal representatives are advocates of this court.

Counts 1 to 4 relate to incidents which took place at the home of E S at Honeydew on 6 May 1999. Count 5 relates to an incident that occurred shortly thereafter, also at Honeydew on 6 May 1 999 but at the home of Nancy Bently. Count 6 to 1 8 relate to events which took place at the home of L B and Richard Moore on 28 May 1999.

For the sake of convenience I shall deal with the evidence according to each of three separate places, i.e. firstly I will deal with the evidence relating to events at E S's home. Thereafter I shall deal with the evidence relating to count 5, the incident at Nancy Bently's home and, finally, the evidence as to what transpired at the home of L B and Richard Moore.

With regard to counts 1 to 4 the following was the evidence. E S gave a harrowing account of events. She is a middle aged woman who lives on her own. From her home she operated a freelance bookkeeping business. At about 1 9:30 her dogs had started barking on the night in question. She opened her front door to let them out. She remembered that she had left her garage door open. She left the front door open and went to her kitchen to activate the remote control of the garage door. When activated it automatically switches on a light in the garage. As the door was closing she noticed someone dash underneath it. Realising something was wrong she turned around to run. A man was standing in the kitchen doorway with a gun in his hand. He told her to be quiet and to come towards him. He pulled her towards the front door. At the door was another person whom she later identified as accused 3. He hit her over the head with a hard object. At about this time at least another three persons entered from the front room. This group whom she estimated as consisting of at least five or six people started rummaging through her house. They kept on asking her for money, jewellery, firearms and so on. They hurled abuse at her. Accused 3 struck her on the head another time and also hit her on the arm with this hard object. For much of the time during her ordeal she was blindfolded. At one stage her legs were tied together as well as her hands. Members of the group demanded to know which were the keys to the vehicle and she showed them. She confirmed that she was robbed of her Toyota Conquest motor vehicle which was found a day after the incident burnt out in Alexandra. She was also robbed of her Bernadelli 7,65 mm pistol, two cell phones, a laptop computer, a Canon printer, a Sansui video machine, a Sansui music centre, two cameras, a pair if binoculars, jewellery, clothing, linen, a briefcase, travel bags, handbags, bottles of wine, whiskey decanters and compact discs. While some of this group of intruders were taking items from her home, others raped her on the floor in the lounge. One person whose penis was so large as to be unable fully topenetrate her raped her twice. Another person also raped her as did another. A further person lay on top of her and simulated the act of sexual intercourse although his penis did not enter her body. Although she could not identify any of those who actually physically raped her, she saw accused 3 standing at her feet during the rape. Accused 4 was positively linked to this crime by DNA analysis. Traces of semen on a carpet and a stocking found at the scene of the crime have an identical profile of analysed DNA to his blood. Because this semen was mixed with that of another person, the profile was only partial. Furthermore, other bodily fluid found on the table at the home of E S immediately after the crimes also has an identical profile of analysed DNA to his blood. The expert witness, Michelle Thompson, said that the chances of this being a coincidence are one in 29 000. While any one individual was busy with the act of sexual intercourse with E S, others were standing around. When she was confident her attackers had eventually gone she telephoned her security company, BBR Security, who arrived within minutes. They summoned the police who arrived on the scene shortly thereafter. She was taken to the Sunninghill Hospital where she received 15 stitches and was medically examined. She attended a photographic identification parade held at the Krugersdorp Police Station on 2 September 1999 where she pointed out photographs of accused 1 and accused 3 as being members of this group of attackers.

Counsel for the defence mounted no real attack on her credibility although the reliability of her identification was tested. She was adamant as to the accuracy of her identification. Especially when the nature of her ordeal was taken into account she was an excellent witness.

Accused 2 was positively linked to this crime by DNA analysis. Traces of semen on a sock and a jersey found at the scene of the crime have an identical profile of analysed DNA to his blood. The expert witness, Michelle Thompson, said that the chances of this being a coincidence are 1 in 17 billion.

Accused 4 was positively identified as being on the scene beyond any doubt by a fingerprint expert. A palm print of his was found on the hi-fi set which had been removed from a cupboard but left at the scene. Accused 1 showed the police where accused 4 was staying and this led to the arrest of accused 4. Accused 1 also pointed out the property, that is the property of E S to Captain Bakker of the Magaliesburg Police Station on 28 October 1999. He also showed him, i.e. Captain Bakker, where they had gained entry to the property, where they had entered the house and where he had been standing in unlawful possession of a firearm.

The admissibility of this pointing-out was challenged by accused 1. He did not give evidence in the trial within a trial. He opposed the admissibility of this evidence of his pointing-out on two grounds. One, that he was allegedly assaulted by the investigating officer, Captain Steyn, during the exercise and, two, he was not afforded an opportunity to consult in private with his guardian at the time when both of them agreed to the pointing-out. I disbelieve the allegation of assault because I believe the credible evidence of Captain Steyn, Inspector Nxumalo and Captain Bakker that Captain Steyn was not even present during this exercise. Furthermore, photographs were taken of accused 1 during the pointing-out and he looked as fit as a flea. With regard to the question of whether there was an opportunity for the accused and his guardian to consult, it is important to note that it was never even claimed by accused 1 that he or his guardian either (a) sought the opportunity or (b) that it would have made any difference. I ruled that the evidence with regard to the pointing-out was admissible and I am satisfied with the correctness of that decision.

Accused 2 pointed out a house in Alexandra where accused 3 was arrested on 16 August 1999. At the house where accused 3 was arrested were found a briefcase Exhibit 1, hiking shoes Exhibit 2, a camera Exhibit 3 and a jacket Exhibit 4 which E S later identified positively, inter alia by using the combination of the lock on her briefcase, as being items which were removed from her house during the robbery.

I turn now to deal with the incident that took place at the home of Nancy Bentley on 6 May 1999. In the camera which had been robbed from E S and which was found in he house where accused 3 was arrested in Alexandra, was found a spool which the investigating officer had developed. One of the photographs showed a menu with the words "Seekers Travel World Awards". The investigating officer found this business in Randburg. There he found Nancy Bentley who was an employee of this business. She said that the camera spool had been removed from her home during the house-breaking. The crimes in counts 1 to 4 and count 5 took place in the same area very shortly after one another. They were reported to the police in the area immediately after one another and have consecutive serial numbers. Access to the properties was gained in a similar manner, i.e. by removing the precast concrete slab in the garden wall. Nancy Bently confirmed that on the night in question she and her then fiance had left their property in Randpark Ridge at about 19:00. They had gone to Alberton and returned at approximately 23:00 to find that their house had been broken into and a number of items removed. There were clear signs from goods lined up that the burglars had been disturbed. She confirmed that the following items had been removed: A Sony video camera, a NAD hi-fi system, a cabinet, a video machine, a portable radio, jewellery, clothing and a camera containing a spool of film which spool was found in the camera found at the house where accused 3 was arrested. The value of the goods in total was approximately R50 000.

I turn now to deal with the evidence relating to counts 6 to 18 namely the events at the home of Richard Moore and L B. The witness Elijah Gafane testified that he is the uncle of the complainant, J F B. He took her to her aunt. Esther Nchutpetsang who is now deceased and who at that time worked at the home of LB and Richard Moore as a domestic worker. This happened at about 20:00 on the evening of 28 May 1999. He did so in preparation of leaving for a visit to their homeland in the Northern Province. From there he went to fetch Stephen Maake. his nephew. He and Steven Maake returned to the house where Esther Nchupetsang worked to fetch both her and J B. He travelled all the while in his yellow Toyota 1200. When he arrived at the home of Richard Moore and LB he hooted several times but received no response. He then got out of his vehicle and knocked on the door of Esther Nchupetsang's room. Four or five men opened the door. They had more than one firearm among them. They cocked one of the firearms and told him to get inside. While he was remonstrating with them they fetched Steven Maake. They hit Elijah Gafane on the head. They tied up Elijah Gafane and Steven Maake by the hands and the feet with wire and blindfolded them. Elijah Gafane was robbed of R2 500,00 in cash, a pair of shoes which he was wearing, a ring and his cellular telephone which had been left on the dashboard of his motor vehicle. While this was going on someone fired a bullet onto the floor. The ricochet of the cartridge injured Elijah Gafane by penetrating his body. He was unable to identify any of his assailants.

Steven Maake confirmed in every material respect the evidence of Elijah Gafane. He said that he had been robbed of R3 000,00 in cash, his Norinco 9 mm pistol, a Jet credit card, a pair of shoes, a wallet (also described as a purse) and a wrist watch. He confirmed that he had identified this pistol when it was shown to him later by Captain Steyn. He could not identify any of his assailants.

J F B confirmed the evidence of Elijah Gafane and Steven Maake in every material respect. She said that she had been raped by five different men in the staff quarters. She could say that there were five different persons because of their different body weights and odours. She was a virgin at the time. She confirmed that G had been raped next to her. She had been blindfolded at the time. She was robbed of R27,00 in cash and saw a TV set in Esther Nchupetsang's room being removed by the robbers. She identified two persons at an identification parade, one of whom she thought she obtained a glimpse of immediately before she was blindfolded and the other whom she thought she saw carrying a firearm. It is common cause that these persons are not among the accused.

J B gave the investigating officer clothing which some of her assailants had used to wipe her private parts after raping her. Her uncle had said that she should keep these as he thought they should be taken to a witch-doctor. Her aunt, Esther Nchupetsang, had kept them in a plastic bag at her place of employment. When she had lost her job as a result of her employer moving she had handed these over to J B. Accused 1 was positively linked to this crime by a DNA analysis. Traces of semen on a T-shirt and a piece of cloth given by JB to Captain Steyn as part of these kept items have an identical profile of analysed DNA to his blood. The expert witness, Michelle Thompson, said the chances of this being a coincidence are one in 540 billion. In other words, more than 90 times the entire human population of the world.

When accused 1 was arrested a 9 mm short Star pistol was found in the motor vehicle in which he was travelling. This pistol was later identified by Steven Maake as having been one of the items removed from him on 28 May 1999 during the robbery. The witness, G M M, corroborated the evidence of J B in every material respect. She described how she had been walking along the road in which the robbery and rapes had taken place at about 20:15 in the evening. She had finished work shortly before 20:00. Two men, each armed with a firearm, surprised her from the nearby vicinity of a vehicle parked in the road. They told her that because she had seen them she would report them to the police. They forced her to go with them to the house where the subsequent robbery and rapes occurred. At the staff quarters she saw three other men. She together with the other innocent persons who were there were tied up at their feet and their hands. She was tied up by the two who apprehended her in the street earlier. Shortly before this she was robbed of a chocolate bar which she had in her pocket. The assailants were looking for money but she did not have any. She was blindfolded and taken to another room where she and J B were raped. She too was raped by five different men. She is certain of this because of their different body weights and their different voices. G M's evidence that she was raped is corroborated by medical evidence. It is common cause that G M pointed out accused 2 and Thabo Bheki Nkosi, who was originally accused 3 but is now deceased, at a photographic identification parade held at Krugersdorp on 5 May 2000. She is adamant that accused 2 is one of those who first apprehended her while she was walking in the street. Accused 2 was also positively linked to this crime by DNA analysis. Traces of bodily fluid, presumably saliva, taken from cigarette butts left on the scene, have an identical profile of analysed DNA to his blood. The expert witness, Michelle Thompson, said that the chances of this being a coincidence are one in 17 billion.

Like the other witnesses who testified as to these incidents, G M impressed me as an honest and reliable witness. The fact that she appeared genuinely to have forgotten that she made a statement to the police after the identification parade and that she said in her statement taken on 13 March 2000 that she might be able to recognise some of the robbers if she saw them, where she recalls saying that she would be able to identify some of her attackers by their facial characteristics, does not, in my view, justify any adverse inference as to her credibility.

The witness Matthew Nchupetsang is the husband of Esther Nchupetsang. He lived with her at the premises of L E B and Richard Moore. He returned home from work at about 21.20 on the night in question in his Ford Escort motor vehicle. There he was apprehended and tied up and blindfolded like the others. He described how the attackers took it in turn to guard them for what seemed like an eternity. He heard a truck arrive on the scene and goods being loaded thereon and removed. He said he saw five different men in total, all of whom were armed with firearms. His evidence is significant in that he makes it clear that he believes that if it was not for one consistently good Samaritan among the attackers they would have been shot and killed. Like all other witnesses he heard what must have been Richard Moore and Lo B arrive home late that night in their Mercedes Benz motor vehicle and a person who could only have been L B shout "Richard, Richard, give them the keys". While he and others were guarded at the staff quarters he heard others among the attackers go into the main house and stay there for a long time. He also heard them removing items from the house. He said that his Ford motor vehicle was removed from the property and later returned that night. The attackers tried on a pair of shoes but threw to one side in disgust because they would not fit any of them. He had money taken from his person. Some R3 000,00 in cash was removed from his and Esther Nchupetsang's room. He confirmed the removal of the television set and the removal of jewellery and clothing from there as well. The value of the goods he estimated as approximately RI0 000,00. His viva voce evidence substantially covers the items listed in count 6 and 10. He confirmed that his wife had lost her job after the owners of the property had moved and that she had never been well thereafter. She died on 28 May 2000, a year to the very date of these dreadful events.

Shortly after Matthew Nchupetsang had given his evidence in chief I adjourned the court in order to enable defence counsel to take instructions as to whether or not one of their clients was perhaps the so-called good Samaritan. There were no volunteers.

Richard Moore and LB testified as to how they had returned home shortly after 22:00 on the night in question. Mercifully L B's young child was away that night spending time with a relative. They had been surprised by a group of armed men whilst still in their vehicle. L B was stripped of her jewellery which she was wearing at the time. They were forced to allow the group of intruders into the homestead where they were forced to lie down on the floor and had their hands and feet tied up with coat hanger wire. The wire were tied so tightly that it affected circulation. They had to endure a most harrowing experience over several hours during which they were humiliated. In a pattern that is found in all these attacks they were blindfolded. The intruders spat and urinated throughout the house. Almost all their possessions worth several hundreds of thousands of rand were removed from the house. The indictment contains the erroneous allegation that Richard Moore's Mercedes Benz was robbed. In fact it was not. L B was raped in her child's room several times by at least three different men. At one stage shortly before she was taken away to be raped members of this group turned her body round so that her head was lifted from the floor and she looked up at an angle. She saw accused 4 for about 10 seconds in clear light and identified him at an identification parade. She was adamant as to the correctness of her identification. The fact that she mentioned the sequence of the rapes in her police statement in a slightly different order from that in her evidence in court does not, in my view, detract seriously from the accuracy of her identification. When satisfied that the attackers had finally left, they managed to get up and summon help from their neighbour. Like the other witnesses to the events on 28 May 1999, both Richard Moore and L B, estimate the group consisted of about five men. Both of them have been most negatively affected by these events. DNA analysis link semen removed from the body of L B immediately after the incidents with the blood sample taken from Thabo Bheji Nkosi, the accused who is now deceased. Mr Ngutshane, counsel for accused 4, made much of the fact that L B was a single witness and that her evidence should be treated with caution. He was also critical of the fact that at the photographic identification parade accused 4 was only one of two persons photographed without a T-shirt on. I must say that neither I nor it seems L B noticed this until he had drawn our attention to the fact. He also rightly says that a photographic identification parade should be treated with caution if not scepticism. Whatever concerns one may have about the reliability of L B's identification, despite her impressive performance as a witness, there are, in my view, two factors which taken jointly provide an adequate safeguard against a wrong conviction.

1. He was linked beyond any doubt to the remarkably similar incident at E S's house by a fingerprint and there is conclusive proof that accused 1 and accused 2 were also involved. This link makes it too much of a coincidence that L B must have mistakenly identified him.

2. Accused 4 did not give any evidence to challenge her identification. Each of the accused closed his case without leading any evidence in his defence.

Mr McKelvey, for the State, very fairly and correctly conceded that there was no evidence linking accused 3 to the events at Randburg and accordingly he is entitled to an acquittal on counts 6 to 18.

Defence counsel did not challenge the fact that these robberies had taken place. They also did not challenge the fact that the rapes had taken place. The fact is that the rapes were indeed corroborated by medical evidence. Defence counsel mounted their defence on two grounds, (1) the accuracy and reliability of the identification and (2) the relevant legal principles applicable. I have already dealt with the question of identification.

There is more than enough evidence safely to conclude beyond reasonable doubt that accused 1, accused 2, accused 3 and accused 4 were involved in the incidents at E S's house, There is also more than enough evidence safely to conclude beyond a reasonable doubt that accused 1, accused 2 and accused 4 were involved in the incidents at the home of L B and Richard

Moore. I shall deal later with the question of the incident at Nancy Bently's house, count 5-

I turn now to deal with the applicable legal principles and in particular the question of common purpose. In the case of R_v Jackelson 1920 AD 486 the following is said by Juta JA at 490.

"All persons who knowingly aid and assist in the commission of a crime are punishable just as if they have committed it." At 491 it is said;

"But if a person assists in or facilitates the commission, if he stands by ready to assist although he does no physical act as where a man stands outside a house while his fellow burglar breaks into the house (per Coleridge CJ in R y_Coney 8 QEB at 569-570). If he gives counsel or encouragement or if he affords the means for facilitating the commission, if in short there is any co-operation between him and the criminal then he aids the latter to commit the crime." This was approved in S v Williams en "n ander 1980 (1) SA 60 (A) at 63C-E. And in S v Khoza 1982 (3) SA 1019 (A) at 1033E. In the Willi am/s case, Joubert JA, giving the judgment and the Court said at 63B:

'"n Medepligtige vereenselwig horn bewustelik met die pieging van die misdaad deur die dader of mededaders deurdat hy bewustelik behulpsaam is by die pieging van die misdaad of deurdat hy bewustelik die dader of mededader die geleentheid, die middele of die inligting verskaf wat die pieging van die misdaad bevorder."

He goes on to say at 63E:

"Die medepligtige se bewustelike huipverlening by die pieging van die misdaad kan uit 'n doen of late bestaan. Laasgenoemde is byvoorbeeld die geval waar 'n nagwag versuim om alarm te maak omdat hy horn bewustelik met die pieging van 'n inbraak by die gebou wat hy moet oppas vereenselsig." In the Khoza case, supra, 1031C to 1032A Corbett JA, as he then was, approved these observations of Joubert JA although he lamented the fact that there would not appear to be any English word which conveniently conveyed the concept of "medepligtigheid". Although Corbett JA's judgment in the Khoza case was the minority judgment, in the case of S v Safatsa and Others 1988 (1) SA 868 (A) Botha JA records at 900B that although he had a difference of opinion with Corbett JA in the Khoza case, on the liability of an accused "joining in" in an assault upon a person who had already been fatally wounded, he was generally in agreement with his views on common purpose. In the Safatse case, supra, five judges of the Appellate Division generally approved the following views expressed by the learned authors Burchelf & Hunt:

"Association in an illegal common purpose constitutes the participation------ the actus reus. It is not necessary to show that each party did a specific act towards the attainment of the joint object. Association in the common design makes the act of the principal offender the act of all. Moreover it is not necessary to show that there was a causal link between the conduct of each party to the common purpose and the unlawful consequence" (See 899B-D).

A common purpose may be manifested simply by conduct. See S. v Safatsa. supra; S v Mgedezi and Others 1989 (1} 687 (A}; S v Motaung and Others [1990] ZASCA 75; 1990 (4} SA 485 (A); S v Khumalo en Andere [1991] ZASCA 70; 1991 (4} SA 310(A) and S v Singo. 1993(2) SA 765 (A) at 772D.

It is clear from the evidence as a whole, in particular the obviously planned nature of their attacks, their duration and the assistance which different members afforded each other from time to time that it was a single group that was responsible for these attacks and that it acted as a cohesive whole. It is also clear that different roles were played by different persons at different times, for example taking turns in guarding. A common purpose must have been formed before the attacks began. In the case of the rapes of E S, if the rapes were not planned beforehand, then it is at least clear that there was an agreement, whether tacit or otherwise, that the group as a whole, even if certain individuals did not actually physically rape her, would commit this outrage.

I have given anxious consideration to whether it is reasonably possible that although the actual robberies themselves were executed in the furtherance of a common design or purpose, the incidence of rape could be frolics, if that is the correct legal term in such instances, of some of the accused acting on their own. In other words, I have considered whether the rapes may have fallen outside the "scheme of things" (i.e. whether the rapes could have been as a result of "spur of the moment" decision and/or spontaneous acts by some but not all of the accused and for which not each of the accused may be held responsible). I have also considered whether there was indeed an active association by each member of the group with these rapes. 1 have already said that in the case of the rapes of E S, if the rapes were not planned beforehand, then it is at least clear that there was agreement, whether tacit or otherwise, that the group as a whole, even if certain individuals did not actually physically rape her, would commit this outrage.

In the case of the rapes of G M, J B and L B the fact that accused 1, accused 2 and accused 4 had been present when the earlier rape of E S, in a similar attack, took place is utterly damning. This together with the systematic manner of these rapes, the fact that no fewer than three women were raped, all of whom were raped repeatedly, combines to permit no other conclusion than that each member of this group associated himself with the rapes in counts 13, 14 and 16. By their participating in the attack in Randburg, accused 1, accused 2 and accused 4 may be said to have ratified the conduct of the group at E S's house. Accused 3, as is clear from the evidence outlined above, actively associated with the rape of E S and the discovery of his sperm on the carpet and the stocking leads to an irresistible inference that he indeed actually physically raped her. The same applies to accused 2. Of course the evidence links accused 1 as the actual physical rapist of J B. There clearly was, beyond reasonable doubt, "medepligtig-heid" on the part of all members of the group. There clearly was an association in the common design to make the acts of the principal offenders in the crimes the acts of each member of this group. The fact that the specific role of each of the members of the group in each specific incident is not clear, does not change the fact that for each member of the group there was an association in an illegal common purpose which constitutes the participation, the actus reus, of each member of the group. Those in respect of whom there is no definite evidence of actual physical rape are therefore guilty of rape as accomplices. It was said in S v Singo, supra, at 772E:

"it is clear beyond reasonable doubt that in such cases liability requires in essence that the accused must have the intent in common with other participants to commit the substantive crime charged (in this case murder} and that there must be an act of association by him for the conduct of the others for the , attainment of the common purpose". At 772H in the Singo case it is said:

"However, where the participant not only desists from actively participating but also abandons his intention to commit the offence, he can, in principle, not be liable for any acts committed by others after his change of heart. He then no longer satisfied the requirements of liability on the ground of common purpose." At 7721-J it is pointed out that the onus is on the prosecution and that if the court has any reasonable doubt whether an accused was at a critical stage still a party to the common purpose, the accused is entitled to the benefit of that doubt. Can it reasonably be possible that some of the accused, after the crimes had begun, thereafter had a change of heart or mind and then dissociated themselves from the

crimes, such that they are liable for some but not all of them. The probability that any of the accused dissociated himself from the crimes in counts 1 to 4 and counts 6 to 18 after the attacks may be discounted. It is not in the overall circumstances of the case the reasonable possibility. There are other considerations as well.

The facts of this case are distinguishable from those in Singo's case. Moreover, none of the accused gave evidence and "avowed any abjuration." In Singo's case the accused asserted his discontinuance of participation amounting to a dissociation from the common purpose (see 770C-H). As the learned judge said in the Singo case:

"The test for dissociation will be difficult to apply but ultimately it is a question of fact and evidence. The accused starts with a problem that ex hypothesi he was an active participant in the common purpose and a court may well be sceptical of his avowal of abjuration" (See 7721). Here we did not even have an "avowal of abjuration". It is trite that the failure of an accused to give evidence on an issue of material importance is a factor to be taken into account by a court (see R v Nkanana 1948 (4) SA 399 (A) at 405-406; R v L 1951 (4) SA 614 |A) at 623B-D).

Where a factum probandum is peculiarly within the knowledge of an accused (such as the dissociation from a common purpose) this is a factor which a court may also take into account (See S v Madihlaba 1990 (1) SA 77 (T) at 80H-I).

The totality of the evidence convinces me beyond reasonable doubt that there was an active association with these crimes of rape and robbery by all those identified as being present from beginning to end. On the basis of the decision in S v Nkosi 1998 (1) SACR 284 (W), Mr McKelvey conceded that as only accused 1 could positively be found to be in possession of a firearm, that the other accused had to be acquitted on counts 3 and 4. There is also no evidence linking accused 1 to count 4 (possession of ammunition}. In the case at Randburg which took place at the home of Mr Richard Moore and L B all those who were there had firearms.

Mr McKelvey accepted that there was no evidence to justify the conviction of any of the accused on count 8, discharging a firearm in contravention of the Arms and Ammunitions Act. He also fairly and correctly accepted that on count 11, the kidnapping count, the evidence justified a conviction of accused 2 only. Although a shot was fired during the course of the events at Richard Moore and L B's house, it is no clear from whose firearm this was fired. It is also not clear if the firearms did indeed have ammunition in them although one is highly suspicious that they did. Accordingly, all accused are entitled to an acquittal on count 18, unlawful possession of ammunition.

I turn very briefly to deal with count 5, that is the housebreaking incident at Nancy Bently's house. 1 accept the argument of Mr Nkosi, counsel for accused 1, that the inference is irresistible that some but not necessarily all of the accused involved in count 1 to 4 were involved in this incident and accordingly accused 1, accused 2 and accused 4 should enjoy the benefit of the doubt.

Accused 3 was found in possession of a spool taken from Nancy Bently's house. This indicates an active continuing association of accused 3 with the crime of which he must at least have been aware. Accordingly only accused 3 can be found guilty on this count (count 5).

I think it is appropriate for me to comment on the marked difference in the quality of the investigations between the police involved in the Honeydew cases, counts 1 to 5, to those in the Randburg case, counts 6 to 18. The Honeydew case fell under the auspices of the Krugersdorp Murder and Robbery Squad. They arrived on the scene promptly. Excellent detective work was done immediately, right down to detecting some saliva on the brickwork paving. They liaised closely with the victims, gave them support and made swift arrests which led to a connection with the Randburg case and the solving of the crimes in counts 6 to 18.

The conduct of the Randburg police was frankly a disgrace. The police arrived on the scene well after the paramedics and the ambulance arrived. They lost the docket. After all that Richard Moore had to endure they gave him a blank piece of paper and told him to write a statement of what had happened. It took six months before they approached L M to make a statement and then they had the insensitivity to send a male person to take the statement. As a general rule female police officers should, in my view, take statements from rape victims. They had hardly any liaison with the victims. When Captain Steyn of Krugersdorp Murder and Robbery Squad was informed by the Forensic Department and told that there may be a link between the Honeydew case and the Randburg case he called for the file from Randburg and found that next to nothing had been done in terms of investigating the case. I hope Mr McKelvey for the State will take the matter further. In my view good police work should be well rewarded and bad seriously and firmly dealt with. It is well recognised that there is a fundamental link between solving the many problems which this country faces and our turning the corner on the crime problem. Quite how certain police officers seem to think it is adequate for them to report for work and then lounge about the police station astonishes and distresses me.

In a society which has sadly been obsessed with race, and in many ways still is, it is tempting, as was suggested at one stage during this trial, for some to see a racial pattern on this marked difference in investigation. It is not so simple. In the Randburg case two of the three rape victims were black women. Both were young and one was a virgin. Earlier this term 1 had a try a so-called farm murder case which occurred in Tarlton in which a white man had been murdered and a white woman shot in the head. Miraculously she survived. It was excellent police work by a black investigating officer which led to the speedy arrest and ultimate conviction of the culprit.

I wish to commend the police officers from the Forensic Department in Pretoria for their excellent work in both cases. DNA analysis is truly one of the marvels of modern science. It is especially useful in rape cases establishing very often not only the fact of the rape but also the identity of the rapist beyond any doubt. It also serves to liberate women from much humiliating and unnecessary cross-examination.

Count 11, the kidnapping of G M M on 28 May 1999, ACCUSED 2 GUILTY AS CHARGED. ACCUSED 1. ACCUSED 3 AND ACCUSED 4 ARE ACQUITTED.

Count 12, robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977, i.e. the robbery of G M on 28 May 1999, ACCUSED 1, ACCUSED 2 AND ACCUSED 4 GUILTY AS CHARGED. ACCUSED 3 IS ACQUITTED.

Count 13, rape, i.e. the rape of G M M on 28 May 1999, ACCUSED 1, ACCUSED 2 AND ACCUSED 4 GUILTY AS CHARGED. ACCUSED 3 IS ACQUITTED.

Count 14, the rape of J F B on 28 May 1999, ACCUSED 1, ACCUSED 2 AND ACCUSED 4 GUILTY AS CHARGED. ACCUSED 3 IS ACQUITTED.

Count 15, robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977, i.e. the robbery of L B and Richard Moore on 28 May 1999, ACCUSED 1. ACCUSED 2 AND ACCUSED 4 GUILTY AS CHARGED. ACCUSED 3 IS ACQUITTED.

Count 16, the rape of L B on 28 May 1999, ACCUSED 1. ACCUSED 2 AND ACCUSED 4 GUILTY AS CHARGED. ACCUSED 3 IS ACQUITTED.

Count 17, unlawful possession of arms in contravention of section 2 read with section 39 of Act 75 of 1969, ACCUSED 1, ACCUSED 2 AND ACCUSED 4 GUILTY AS CHARGED. ACCUSED 3 IS ACQUITTED.

Count 18, unlawful possession of ammunition in contravention of section 36 read with section 39 of Act 75 of 1969, ACCUSED 1, ACCUSED 2, ACCUSED 3 AND ACCUSED 4 ARE ALL ACQUITTED.

---