THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:   284/2010

No Precedential Significance

MBUTINI ISAAC VILAKAZI                                                 Appellant

and

THE STATE                                                                           Respondent

Neutral citation: Vilakazi v The State (284/10) [2010] ZASCA 125 (30
September 2010)

Coram:
NUGENT and HEHER JJA and K PILLAY AJA

Heard:
13 September 2010
Delivered:
30 September 2010

Summary:
Rape ─ whether conviction justified by the evidence –
whether sentence of ten years’ imprisonment
excessive.

___________________________________________________________

ORDER

On appeal from: North Gauteng High Court (Pretoria) (Basson J and
Makhafola AJ sitting as court of appeal):

The appeal against conviction and sentence is dismissed.
__________________________________________________________

JUDGMENT

K PILLAY AJA (Nugent and Heher JJA concurring)

[1] The appellant was charged, in the Regional Court of Mpumalanga,
with rape. The appellant, who was represented at the trial, pleaded not
guilty and elected not to disclose the basis of his defence. He was
convicted and sentenced to 10 years’ imprisonment. On appeal to the
North Gauteng High Court, the conviction and sentence were confirmed.
This appeal, which is with leave of the court below, is directed at both
conviction and sentence.

[2] The complainant is the appellant’s maternal aunt. At the time of the
incident she was 44 years old and he was 30. According to the
complainant on 1 January 2004, at 3:30 am, she was at the appellant’s
parental home. A quarrel ensued between the complainant and the
appellant’s mother, Ms Tomnina Ester Pakati, which caused the
complainant to leave. She met the appellant outside and asked him to
accompany her to her friend Elizabeth’s home. On the way, the appellant
decided to show the complainant his home at Extension 22.

[3] Upon arrival at Extension 22, the appellant grabbed the
complainant by her throat, led her to his room where he forcibly had
sexual intercourse with her. He instructed her not to scream and placed a
knife next to her on the pillow. The complainant eventually persuaded
him to leave so that she could go to her other sister Gogo’s home. This
was about 5:30 in the morning. The appellant accompanied her. On the
way there, they parted company and she proceeded to her friend Elizabeth
Ngwenya’s home.

[4] She reported the rape to Elizabeth, who observed that her neck was
swollen. Elizabeth gave her money and advised her to report the incident
to the appellant’s parents, which she did. They advised her to report the
incident to the police and took her to the police station, whereafter she
was taken to a medical doctor at a hospital.

[5] As disclosed in cross-examination the appellant’s version was an
alibi defence to the effect that he left his parental home at 2:00 am with
his girlfriend and spent the rest of the early hours of that morning with his
girlfriend at Extension 22. However, the complainant insisted that the
girlfriend was never present at the appellant’s parental home.

[6] It was not disputed that later that day the complainant came across
the appellant in hospital where, so he said, he had gone for treatment for a
foot injury. The appellant was arrested there.

[7] Elizabeth Ngwenya testified on the complainant’s behalf and
confirmed that the latter had reported the rape to her on the morning of 1
January 2004. She said that she saw ‘black marks’ on the complainant’s
neck.

[8] The doctor who examined the complainant on 1 January 2004
tabulated his findings on a J88 form, the contents of which were formally
admitted by consent. There were bruises on both sides of the
complainant’s upper chest. No other injuries were noted. The J88 form
was admitted together with a document, bearing the reference
02DIAF3447XX. The document was titled ‘Sexual Assault Kit’ and
recorded that swabs were taken from the complainant.

[9] Sergeant Makwena, a forensic analyst at the Forensic Science
Laboratory,
analysed
genital
swabs
A
and
B
of
specimen
02DIAF3447XX ‘L.A. Phalathi’ and found that the genital swabs tested
positive for semen.

[10] A DNA expert, Sergeant Mphepu, also testified. His evidence, was
that he did a comparative analysis of a control blood sample, marked with
reference number 02DIAE6202XX ‘I.M.V.’ with genital swabs A and B
with reference ‘02DIAF3447XX LA Phalati’, which revealed a 99.99
percent match.

[11] In the process of delivering judgment, the trial magistrate appears
to have realised that formal evidence was lacking that the blood sample
used for comparative analysis was that of the appellant. It seems that such
an admission might have been made but had not been formally recorded.
He accordingly posed the following question to counsel for the appellant:
‘However the Court does not have any notes for the formal admission that was made
that the blood sample that was used for comparison purposes was in fact the blood
sample of the accused, is that in contention or can the Court record that as a formal
admission?’
The record reflects the following exchange thereafter:

‘DEFENCE: (Inaudible)
COURT:
Can the court then record it as a formal admission?
DEFENCE:
(Inaudible).’
And further:
‘Sergeant Mogute testified that when he received the said samples at the laboratory
together with a blood sample, which is referred as to a control blood sample and
which was formally admitted to be that of the accused’s, he tested the vaginal swabs
that were taken from the complainant and found them to react positively, in other
words that there was DNA present.’

[12] In his testimony, the appellant denied that he had any sexual
intercourse with the complainant. He confirmed that he was at his
parental home until 2:00 am on 1 January 2004, when he left with his
girlfriend for his home at Extension 22.

[13] The appellant’s mother testified on behalf of the appellant. She said
that the appellant had left her house with his girlfriend at 2:00 am. The
complainant remained with her until 4:00 am and then returned at 11:00
am to report that the appellant had raped her. The appellant’s girlfriend
confirmed his version so far as it related to her.

[14] The trial court found that the cumulative weight of the DNA
evidence, which positively linked the appellant to the commission of the
crime, together with the credible evidence of the state witnesses
established the appellant’s guilt beyond reasonable doubt.

[15] I have pointed out that in the course of his judgment the magistrate
asked whether it was formally admitted that the blood sample that was
tested against the specimen of semen had emanated from the appellant.
Notwithstanding the inaudible replies from counsel it is clear from the

fact that the magistrate proceeded with this questioning, that such an
admission was formally made, and that was not disputed by counsel
before us. It was submitted on the appellant’s behalf that the extraction of
that admission was irregular and that it had not been made on the
instruction of the appellant. In those circumstances, so it was submitted,
the admission falls to be ignored, with the result that the prosecution had
not proved that the blood sample emanated from the appellant.

[16] I do not think the magistrate can be said to have acted irregularly in
asking whether a formal admission was being made. He was entitled to
admit evidence at any stage in the proceedings, which concluded only
when the verdict was delivered (provided, of course, that it did not cause
prejudice the appellant). In view of the fact that the admission was indeed
made it is clear that no prejudice was caused merely on account of the
fact that the admission was admitted only while he was delivering his
judgment. Moreover, it seems that, that was not the first time that the
admission was made. As I said earlier, it seems that the admission had
indeed been made before that, but had not been recorded by the
magistrate at the time.

[17] It is well established that an accused is bound by the admissions
made on his behalf by a legal representative unless such legal
representative has not been properly instructed or the admission was
made as a result of a bona fide mistake.1 Section 220 of the Criminal
Procedure Act 51 of 1977 permits a legal adviser to make any admission
on his or her client’s behalf. The aforesaid section provides:
‘An accused or his or her legal adviser or the prosecutor may in criminal proceedings

1 Dlamini v Minister of Law and Order & another 1986 (4) SA 342 (D); S v Mbelo 2003 (1) SACR 84
(NCD).

admit any fact placed in issue at such proceedings and any such admission shall be
sufficient proof of such fact.’
The contention that the admission was not made on the instructions of the
appellant was no more than an allegation made from the bar without any
evidence before us that that was so.

[18] But even without the admission the evidence was sufficient to
establish, by inference, that the blood sample that was tested had indeed
emanated from the appellant. It was not disputed that a blood sample had
indeed been taken from the appellant and sent to the laboratory for
analysis. The possibility that the laboratory then inadvertently tested the
semen sample against some other blood sample that happened to be there,
and that it coincidentally correlated with the semen sample, which is the
logical conclusion that follows from the submission, is so remote that it
can safely be rejected.

[19] It was also submitted that the evidence fell short of establishing
that the equipment used to perform the DNA analysis functioned
correctly for the performance of the task. In my view the submission has
no merit. The evidence established that the relevant technician calibrated
the equipment against standard samples, in accordance with ordinary
practices. In the absence of any evidentiary basis for suggesting the
equipment might have been defective for the task that it was to perform
there was no basis for finding that that might possibly have been so.

[20] The evidence of the complainant that she was raped was not placed
in issue in the course of the trial (nor in argument before us). The only
matter in dispute was whether the appellant was the perpetrator. The
complainant implicated the appellant shortly after the rape, both to her

friend and to the police. The trial court found her to be a credible witness.
This finding, on perusal of the record cannot be assailed. Her evidence,
which in itself might have justified a conviction, was corroborated by the
DNA evidence. I have no doubt that the appellant was properly convicted
and his appeal in that respect must be dismissed.

[21] The offence fell within the ambit of Part III of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997, which carries a minimum
sentence of ten years’ imprisonment. Both the trial court and the court
below were unable to find that there were any substantial factors proved
that would compel a reduction in sentence.

[22] The appellant’s transgression must be viewed against the fact that
the complainant is his aunt who is much older than he is. In asking him to
accompany her in the early part of the morning to her friend’s residence,
she actually sought his protection. Instead he opportunistically subjected
her to the degradation of rape. She was also assaulted during the rape and
sustained bruises to her upper chest. There were no gynaecological
injuries noted which is not unusual in women of her age who have borne
children, as she had. Apart from the violence that is inherent in the act of
rape, this case was aggravated by the deliberate positioning of the knife
alongside the complaint before the assault was committed, which was
clearly intended to intimidate her.

[23] The only factors placed before the trial court in mitigation by the
appellant, at the time of sentencing, were that he was 32 years old, he had
two minor children, and had been employed as a truck attendant. He had
a previous conviction for theft and was serving a 30 month sentence for
assault. Both the trial court and the court below were unable to find that

these factors were sufficiently weighty to constitute substantial and
compelling factors, and I agree. I might add that in my view the sentence
that was imposed was in any event an appropriate sentence, even had
there been no minimum sentence.

[24] In the circumstances the appeal against conviction and sentence is
dismissed.

___________________
K Pillay

Acting Judge of Appeal

APPEARANCES:

APPELLANT:
(Ms) L Augustyn
Instructed by Legal Aid Board, Pretoria
Legal Aid Board, Bloemfontein

RESPONDENT: JJ Kotze
Instructed by The Director of Public Prosecutions,
Pretoria

The Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

30 September 2010

STATUS: Immediate

Vilakazi v The State (284/10) [2010] ZASCA 125 (30 September 2010)

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

The SCA today dismissed an appeal against a conviction and sentence for rape. The
appellant was convicted on 19 June 2006, by the Bethal Regional Court,
Mpumalanga, and sentenced to 10 years’ imprisonment.

An appeal against convicted and sentence to the North Gauteng High Court was
dismissed on 7 August 2008.

The SCA found that the conviction was justified by the evidence and that the 10
years’ imprisonment imposed was an appropriate sentence.