South gauteng high court, johannesburg



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REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG


CASE NO: SS 36/2009
DATE:18/03/2011
In the matter between:

THE STATE

and

MADUMETJA JACK MOGALE............................................................Accused

______________________________________________________________
J U D G M E N T

______________________________________________________________

KGOMO, J:
INTRODUCTION
[1] The accused, a 42 year old male person, then of R417 Waterworks Section, Zuurbekom, Gauteng, stood arraigned in the High Court, Johannesburg on 18 counts of kidnapping, 19 counts of rape, 16 counts of murder, one count of attempted murder, three counts of robbery with aggravating circumstances as intended in section 1 of the Criminal Procedure Act, 51 of 1977, one (1) count of fraud, alternatively theft, one (1) count of theft, one (1) count of assault with intent to do grievous bodily harm, one (1) count of sexual assault and one (1) count of escaping from lawful custody.
[2] Accused was legally represented throughout the trial. Before he pleaded to the charges the provisions i.e. import and implications or extent of sections 51 and 52 of the Criminal Law Amendment Act 105 of 1997 (Minimum Sentences Act), section 3 read with sections 1, 55, 56-61 of the Criminal Law Amendment Act (Sexual Offences and Related Matters) 32 of 2007 as well as the applicable sections of the Criminal Procedure Act were fully explained to the accused and his counsel also confirmed on record that he had explained same to him earlier on.
[3] Accused pleaded not guilty to all the charges and elected to remain silent (not to disclose the basis of his defence).
THE CHARGES
[4] The specific allegations levelled against the accused are that:

    1. Count 1: Kidnapping


Upon or about 17 March 2008 and at or near Waterworks settlement in the district of Westonaria, the accused did unlawfully and intentionally deprive one HEM of her freedom of movement by luring her from Westonaria Magistrate’s Court to Waterworks settlement or area in Westonaria.


    1. Count 2: Rape


Upon or about the date and at or near the place mentioned in Count 1, the accused did unlawfully and intentionally commit an act of sexual penetration with or on HEM by penetrating her vagina with his penis without her consent.


    1. Count 3: Robbery with aggravating circumstances as intended in section 1 of the Criminal Procedure Act read with section 51(2) and Schedule 2 of the Minimum Sentences Act


In that upon or about the date and at or near the place mentioned in Count 1, the accused did unlawfully and intentionally assault HEM with the intent to rob and did unlawfully and intentionally take a Nokia 1100 cellphone from her possession, being the property or in the lawful possession of the said HEM. Aggravating circumstances as defined in section 1 of Act 51 of 1977 being present but undefined.


    1. Count 4: Murder


In that upon or about the date and at or near the place mentioned in Count 1, the accused did unlawfully and intentionally kill HEM.


    1. Count 5: Kidnapping


In that during or about 5 to 10 October 2008 and at or near Anchorville, Lenasia Extension 1 in the district of Lenasia, Johannesburg, the accused did unlawfully and intentionally deprive DEM of her freedom of movement.


    1. Count 6: Rape


In that upon or about the date, and at or near the place mentioned in Count 5 the accused did unlawfully and intentionally commit an act of sexual penetration with DEM by penetrating her vagina with his penis without her consent.

    1. Count 7: Robbery with aggravating circumstances as intended in section 1 of Act 51 of 1977 read with section 51(2) and Schedule 2 of the Minimum Sentences Act


In that upon or about the date and at or near the place mentioned in Count 5, the accused did unlawfully and intentionally assault DEM with the intent to rob and did unlawfully and intentionally take a cellphone from the latter, it being the property or in the lawful possession of the said DEM. Aggravating circumstances as defined in section 1 of Act 51 of 1977 being present.


    1. Count 8: Murder


In that upon or about the date and at or near the place mentioned in Count 5, the accused did unlawfully and intentionally kill DEM.


    1. Count 9: Kidnapping


In that during or about the period September 2008 and at or near Mosquito Valley, Lenasia Ext 1 in the district of Lenasia, the accused did unlawfully and intentionally deprive an unknown adult female person of her freedom of movement.


    1. Count 10: Rape


In that upon or about the period and at or near the place mentioned in Count 9, the accused did unlawfully and intentionally commit an act of sexual penetration with an unknown female person by penetrating her vagina with his penis without her consent.


    1. Count 11: Murder


In that upon or about the period and at or near the place mentioned in Count 9, the accused did unlawfully and intentionally kill an unknown adult female person.


    1. Count 12: Kidnapping


In that during or about the period of November to December 2008 and at or near West End Brick and Clay in the district of Westonaria, the accused did unlawfully and intentionally deprive an unknown adult female person of her freedom of movement.


    1. Count 13: Rape


In that upon or about the period and at or near the place mentioned in Count 12, the accused did unlawfully and intentionally commit an act of sexual penetration with an unknown adult female person by penetrating her vagina with his penis without her consent.


    1. Count 14: Murder


In that upon or about the period and at or near the place mentioned in Count 12, the accused did unlawfully and intentionally kill an unknown adult female person.


    1. Count 15: Kidnapping


In that upon or about 6 December 2008 and at or near West End Brick and Clay in the district of Westonaria, the accused did unlawfully and intentionally deprive an unknown adult female person of her freedom of movement.


    1. Count 16: Rape


In that upon or about the date and at or near the place mentioned in Count 15, the accused did unlawfully and intentionally commit an act of sexual penetration with an adult female person by penetrating her vagina with his penis without her consent.


    1. Count 17: Rape


In that upon or about the date and at or near the place mentioned in Count 15, the accused did unlawfully and intentionally commit an act of sexual penetration with an unknown female person by penetrating her anus with his penis without her consent.


    1. Count 18: Murder


In that upon or about the date and at or near the place mentioned in Count 15, the accused did unlawfully and intentionally kill an unknown adult female person.


    1. Count 19: Assault with intent to do grievous bodily harm


In that upon or about 24 December 2008 and at or near Lenasia in the district of Lenasia, the accused did unlawfully and intentionally assault NM with the intent to do her grievous bodily harm by making her drink a substance that made her dizzy or hallucinate.


    1. Count 20: Kidnapping


In that upon or about the date and at or near the place mentioned in Count 19, the accused did unlawfully and intentionally deprive NM of her freedom of movement by luring her from her place of employment at Lenasia and taking her to a nearby bush.


    1. Count 21: Rape


In that upon or about the date and at or near the place mentioned in Count 19, the accused did unlawfully and intentionally commit an act of sexual penetration with an adult female person, to wit, NM, by penetrating her vagina with his penis without her consent and by false and/or deceitful means.


    1. Count 22: Indecent assault


In that upon or about the date and at or near the place mentioned in Count 19, the accused did unlawfully and intentionally sexually violate the complainant, namely, NM, by rubbing a certain substance with his hands on her vagina without her consent.


    1. Count 23: Fraud


In that upon or about 23 December 2008 and at or near the place mentioned in Count 19, the accused did unlawfully and intentionally misrepresent to NM that he was a traditional healer or prophet and that she should pay him a sum of money, inducing her by such misrepresentation to pay to him the sum of R400,00 in order for him to cure her, knowing full well that he was not a traditional healer or likewise designation or profession or calling, and therefore not entitled to be paid the sum of R400,00.
ALTERNATIVE TO COUNT 23: THEFT
In that upon or about the date and at or near the place mentioned in Count 19, the accused did unlawfully take and steal the sum of R400,00, the property or in the lawful possession of NM.


    1. Count 24: Kidnapping


In that during or about the period of December 2008 to January 2009 and at or near Avalon, Lenasia Ext 1 in the district of Lenasia, the accused did unlawfully and intentionally deprive an unknown adult female person of her freedom of movement.

    1. Count 25: Rape


In that upon or about the period and at or near the place mentioned in Count 24, the accused did unlawfully and intentionally commit an act of sexual penetration with an unknown adult female person, by penetrating her vagina with his penis without her consent.


    1. Count 26: Murder


In that upon or about the period and at or near the place mentioned in Count 24, the accused did unlawfully and intentionally kill an unknown adult female person.


    1. Count 27: Kidnapping


In that upon or about 19 to 26 January 2009 and at or near Oupa Fat’s Dam, Lenasia Ext 1 in the district of Lenasia, the accused did unlawfully and intentionally deprive ST of her freedom of movement by luring her from her workplace in Lenasia to the Oupa Fat’s Dam in Lenasia Ext 1.

    1. Count 28: Rape


In that upon or about the date and at or near the place mentioned in Count 27, the accused did unlawfully and intentionally commit an act of sexual penetration with an adult female person, to wit, ST, by penetrating her vagina with his penis without her consent.


    1. Count 29: Murder


In that upon or about the date and at or near the place mentioned in Count 27, the accused did unlawfully and intentionally kill ST, an adult female person.


    1. Count 30: Kidnapping


In that upon or about 22 January 2009 and at or near Waterworks in the district of Westonaria, the accused did unlawfully and intentionally deprive NN of her freedom of movement by luring her from the Waterpan Caltex Garage to Waterworks in Westonaria.

    1. Count 31: Rape


In that upon or about the date and at or near the place mentioned in Count 30, the accused did unlawfully and intentionally commit an act of sexual penetration with an adult female person, to wit, NN, by penetrating her vagina with his penis without her consent.


    1. Count 32: Murder


In that upon or about the date and at or near the place mentioned in Count 30, the accused did unlawfully and intentionally kill NN, an adult female person.


    1. Count 33: Kidnapping


In that during or about January 2009 and at or near Mosquito Valley, Lenasia Ext 1 in the district of Lenasia, the accused did unlawfully and intentionally deprive an unknown adult female person of her freedom of movement.


    1. Count 34: Rape


In that upon or about the period and at or near the place mentioned in Count 33, the accused did unlawfully and intentionally commit an act of sexual penetration with an unknown adult female person, by penetrating her vagina with his penis without her consent.


    1. Count 35: Murder


In that upon or about the period and at or near the place mentioned in Count 33, the accused did unlawfully and intentionally kill an unknown adult female person.


    1. Count 36: Kidnapping


In that during or about the period January 2009 and at or near Anchorville, Lenasia Ext 1 in the district of Lenasia, the accused did unlawfully and intentionally deprive an unknown adult female person of her freedom of movement.


    1. Count 37: Rape


In that upon or about the period and at or near the place mentioned in Count 36, the accused did unlawfully and intentionally commit an act of sexual penetration with an unknown adult female person, by penetrating her vagina with his penis without her consent.


    1. Count 38: Murder


In that upon or about the period and at or near the place mentioned in Count 36, the accused did unlawfully and intentionally kill an unknown adult female person.


    1. Count 39: Kidnapping


In that during or about the period January 2009 and at or near Anchorville, Lenasia Ext 1 in the district of Lenasia, the accused did unlawfully and intentionally deprive an unknown child of his/her freedom of movement.


    1. Count 40: Murder


In that upon or about the period and at or near the place mentioned in Count 39, the accused did unlawfully and intentionally kill an unknown child.


    1. Count 41: Kidnapping


In that upon or about 29 January 2009 and at or near West End Brick and Clay in the district of Westonaria, the accused did unlawfully and intentionally deprive an unknown female person of her freedom of movement.

    1. Count 42: Rape


In that upon or about the date and at or near the place mentioned in Count 41, the accused did unlawfully and intentionally commit an act of sexual penetration with an unknown adult female person by penetrating her vagina with his penis without her consent.


    1. Count 43: Murder


In that upon or about the date and at or near the place mentioned in Count 41, the accused did unlawfully and intentionally assault an unknown adult female person, thereby causing certain injuries as a result of which the said unknown female person died at or near Leratong Hospital in the district of Westonaria on 19 February 2009 and thus the accused did unlawfully and intentionally kill the said unknown female person.


    1. Count 44: Kidnapping


In that during or about the period February to March 2009 and at or near Venterspost in the district of Westonaria, the accused did unlawfully and intentionally deprive DCG of her freedom of movement by luring her from Extension 5, Simunye to Venterspost in Westonaria.

    1. Count 45: Rape


In that upon or about the period and at or near the place mentioned in Count 44, the accused did unlawfully and intentionally commit an act of sexual penetration with an adult female person, to wit, DCG by penetrating her vagina with his penis without her consent.


    1. Count 46: Murder


In that upon or about the period and at or near the place mentioned in Count 44, the accused did unlawfully and intentionally kill DCG, an adult female person.


    1. Count 47: Kidnapping


In that during or about the period February to March 2009 and at or near Anchorville, Lenasia Ext 1 in the district of Lenasia, the accused did unlawfully and intentionally deprive UES of her freedom of movement.


    1. Count 48: Rape


In that upon or about the period and at or near the place mentioned in Count 47, the accused did unlawfully and intentionally commit an act of sexual penetration with an adult female person, to wit, UES, by penetrating her vagina with his penis without her consent.


    1. Count 49: Murder


In that upon or about the period and at or near the place mentioned in Count 47, the accused did unlawfully and intentionally kill UES.


    1. Count 50: Kidnapping


In that during or about the period of February to March 2009 and at or near West End Brick and Clay in the district of Westonaria, the accused did unlawfully and intentionally deprive an unknown female person of her freedom of movement.


    1. Count 51: Rape


In that upon or about the period and at or near the place mentioned in Count 50, the accused did unlawfully and intentionally commit an act of sexual penetration with an unknown adult female person by penetrating her vagina with his penis without her consent.


    1. Count 52: Murder


In that upon or about the period and at or near the place mentioned in Count 50, the accused did unlawfully and intentionally kill an unknown female person.


    1. Count 53: Kidnapping


In that upon or about 13 March 2009 and at or near Venterspost in the district of Westonaria, the accused did unlawfully and intentionally deprive Dimakat Magdeline Tlallo (aka Mamikie) of her freedom of movement by luring her to a field in Venterspost or Westonaria.


    1. Count 54: Robbery with aggravating circumstances read with section 1 of Act 51 of 1977 as well as sections 51 and 52 of the Minimum Sentences Act


In that upon or about the date and at or near the place mentioned in Count 53, the accused did unlawfully and intentionally assault Dimakatso Magdeline Tlallo (aka Mamikie) with the intent to rob and did unlawfully and intentionally take a pair of jeans, a panty, and a Samsung SGH-E250 cellphone from her possession, being the property of or in the lawful possession of the said DMT (aka M), aggravating circumstances as defined in section 1 of Act 51 of 1977 being present.


    1. Count 55: Rape


In that upon or about the date and at or near the place mentioned in Count 53, the accused did unlawfully and intentionally commit an act of sexual penetration with an adult female person, to wit, DMT (aka M) by penetrating her vagina with his penis without her consent.


    1. Count 56: Rape


In that upon or about the date and at or near the place mentioned in Count 53, the accused did unlawfully and intentionally commit an act of sexual penetration with an adult female person, namely, DMT (aka M) by penetrating her anus with his penis without her consent.


    1. Count 57: Attempted murder


In that upon or about the date and at or near the place mentioned in Count 53, the accused did unlawfully and intentionally attempt to kill DMT (aka M) an adult female person.


    1. Count 58: Escaping from lawful custody


In that upon or about 14 April 2009 and at or near Brixton in the district of Johannesburg, the accused; after being lawfully arrested and incarcerated, did unlawfully and intentionally escape from lawful custody.


    1. Count 59: Kidnapping


In that upon or about the period January 2007 and at or near Mosquito Valley in the district of Lenasia, the accused did unlawfully and intentionally deprive ANW of her freedom of movement.


    1. Count 60: Rape


In that upon or about the date and at or near the place mentioned in Count 59, the accused did unlawfully and intentionally commit an act of sexual penetration with an adult female person; to wit NAW by penetrating her vagina with his penis without her consent.


    1. Count 61: Murder


In that upon or about the date and at or near the place mentioned in Count 59, the accused did unlawfully and intentionally kill ANW, an adult female person.


    1. Throughout this judgment the charges herein will be referred to as they appear hereinafter i.e. grouped under their respective dockets as “cases”. For that purpose the charges are grouped as follows:


- Case 1: Counts 1-4.

- Case 2: Counts 5-8.

- Case 3: Counts 9-11.

- Case 4: Counts 12-14.

- Case 5: Counts 15-18.

- Case 6: Counts 19-23.

- Case 7: Counts 24-26.

- Case 8: Counts 27-29.

- Case 9: Counts 30-32.

- Case 10: Counts 33-35.

- Case 11: Counts 36-40.

- Case 12: Counts 41-43.

- Case 13: Counts 44-36.

- Case 14: Counts 47-49.

- Case 15: Counts 50-52.

- Case 16: Counts 53-57.

- Case 17: Counts 58.

- Case 18: Counts 59-61.
PLEA
[5] Accused pleaded not guilty to all the charges. He was represented throughout the proceedings by Adv Madondo, duly instructed by the Legal Aid Board.
FORMAL ADMISSIONS BY THE ACCUSED
[6] Before the State started leading evidence as well as throughout the trial, especially at regular intervals before a group of charges or a case was dealt with through the leading of evidence, the accused, duly advised and assisted by his legal representative, admitted certain facts relating to individual charges in terms of section 220 of Act 51 of 1977, as amended. Apart from appending his signature to the written admissions after they had been read into the record, the accused also affixed or imprinted his right thumb print on the admission document. Both the lead prosecutor and defence counsels also appended their signatures to the formal admissions before they were handed in as exhibits. All the above signatures were put on paper in my presence and the presence of the prosecuting team as well as the accused and his counsel, in open court, all being present at the same time.
[7] In the formal admissions the accused did not dispute that 17 women and a child were kidnapped; 19 females were raped; 15 females and one child were murdered; 3 of the victims were robbed of the items specified in the charges; one female was assaulted so much that she nearly died, thus attempted murder having been committed; 2 females were sodomised, acts constituting rape in terms of the Criminal Law (Sexual Offences) Act, 2007 (as amended) and that fraud, alternatively theft as well as one count of assault with intent to do grievous bodily harm were committed; all on the dates as well as places specified in the indictment. The only charge not formally admitted was the count on escaping from lawful custody.
[8] What appeared to be in dispute is who had committed or perpetrated all the acts set out in the charges.
[9] The State was thus set the task of proving whether or not the accused herein was the perpetrator of all the acts set out hereinbefore.
[10] The State led the evidence of 41 witnesses. It also set out to prove through various reports that the accused before this Court was causally connected to the acts and/or omissions as set out in the indictment. I will deal with them shortly hereunder.
[11] Photo albums compiled of the various scenes of crimes and other relevant points and places were also handed in and the defence admitted that they should all be handed in and accepted into the record of proceedings herein as proof of what they depicted therein.
[12] In addition to viva voce evidence led through the state witnesses the prosecution herein made use as evidence of pointing outs by the accused, warning statements made by the accused to then (Police) Director, Brig Byleveldt and the investigations officer, W/O Ungerer as well as Linkage Analysis evidence by Professor G N Labuschagne of the Police Investigative Psychology Unit, Criminal Records and Forensic Science Services. The State also relied on cellphone records evidence tendered by Captain Francois Samuel Möller of the Police Priority Crime Management Centre. Forensic Analysis Reports were also handed in and explained by various experts from the Police Forensic and Scientific Divisions, notably, Captain Shamil Raman Govan, a Senior Forensic Analyst and Supt Cornelia Elizabeth Bergh, a Chief Forensic Analyst. For record purposes the present day equivalent designation of superintendent is lieutenant-colonel.
[13] Identification parades were also held where the accused was identified by some witnesses and others did not point him out, as I will set out more fully later hereunder.
[14] According to Prof G N Labuschagne, linkage analysis is used to identify serial crimes that have been committed by one offender through the use among others of:


  • the manner in which the crime was committed inclusive of the behaviour that is contained in two distinct components of a crime, those being, modus operandi and signature or unique combination of behaviour of the offender; and




  • the circumstances under which the crimes were committed.


[15] Further information used to determine whether a crime or crimes are linked to one individual are victimology and locations of crime scenes.
[16] According to Prof Labuschagne, linkage analysis does not take into account physical evidence like DNA, fingerprints or ballistic results, but instead focuses on the behavioural elements displayed by the offender during the commission of the crime that are observable on the crime scene when it is discovered by the authorities or from victim accounts.
[17] Linkage Analysis reports are submitted in support of similar fact evidence. Such linkage analysis involves:


  • the gathering of information about the crime;




  • reviewing the information about the crime and identifying significant features of each crime individually;




  • determining any consistencies across the series of crimes; and




  • compiling a written analysis detailing the conclusions derived.


[18] To arrive at the outcomes envisaged or justified by the facts Prof Labuschagne relied on the following sources of information:


  • consultation with the investigations officer(s);




  • consultation with the prosecuting team;



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