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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN
CASE NO: CC20/2014
Date Heard: 21 May 2014
Date delivered: 22 May 2014
In the matter between
THE STATE
And
ABONGILE SEPTEMBER
Accused
JUDGEMENT
GOOSEN, J.
[1] The accused was charged with the rape and murder of a […..]-year-old woman.
The state alleged that on or about 19 October 2013 and at or near a primary school
in the district of J [……] the accused accompanied the deceased, who was heavily
intoxicated at the time, on her way home. He overpowered and raped her.
Thereafter he killed her by manual strangulation. It is alleged that the accused
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dumped the body of the deceased in a drain next to the school and that he hid her
cellular phone and clothing which had been removed during the course of the rape
in another drain. The half-naked and decomposing body of the deceased was
found in the drain on or about 1 November 2013. The accused pleaded not guilty to
rape and in respect of the charge of murder, tendered a plea of guilty of culpable
homicide. He presented a detailed statement in his plea explanation, in terms of
s115 of the Criminal Procedure Act, 51 of 1977, in which he set out the factual
basis of his plea. The prosecution did not accept the plea and accordingly
proceeded to present evidence in support of its case. The factual averments set
out in the s115 plea were recorded, by agreement, as factual admissions made by
the accused in terms of s 220 of the Criminal Procedure Act. A photograph album
depicting the scene where the deceased’s body was recovered was also handed in
by agreement between the parties.
[2] The prosecution presented only the evidence of Dr Kolosa, a senior medical officer
attached to the forensic Pathology Laboratory at Aliwal North. He conducted a
post-mortem examination and compiled a post mortem medico-legal report and
photograph album. The prosecution thereafter closed its case. The defence
presented no evidence and also closed its case.
[3] The background facts are those set out in the plea explanation tendered by the
accused. In that explanation, the accused states that during the night of Friday 18
October 2013 he was in the company of two other men, S and X […..], drinking
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outside a tavern. They were joined by the deceased, who was X [….]’s girlfriend,
and they continued to drink alcohol together. After the tavern closed S suggested
that they should go to another tavern which they did but found that it was closed.
After that S drove them to the accused’s house to drop him off. When they got
there X […] got out of the car and went down the road to urinate. He did not return.
The accused also got out of the car. The deceased got out of the car and walked
down the road and when she was asked where she was going she said that she
was going to find X […..]. The plea explanation continues to explain that whilst they
were standing outside of the vehicle and outside of the accused’s home his
girlfriend came out and because she saw the deceased standing alongside the
accused she accused her of having an affair with him and started to assault her. S
intervened and stopped the assault. The deceased then got into S’s vehicle and
they drove down the road to where the accused was standing. He got into the car
and proceeded to the deceased’s home. When they got there they got out of the
car. The deceased however wanted to go in search of X [….]. She did not wish to
be taken there by S in his car and insisted that the accused accompany her. He
then walked off with. He stated in his plea that that when they got to the vicinity of
the school he wanted to urinate. After doing so the deceased kissed him and he
also kissed her. He took his overall top off and lay it down on the ground. He then
removed her trousers and they had sexual intercourse. During the sexual
intercourse he felt that he was not performing well since his penis was flaccid and
he then withdrew. He told the deceased that he thought what they were doing was
wrong because she was in a relationship with X [….]. At that point she said that the
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accused cannot leave like that and that she was going to scream and tell people
that he was raping her. She stood up and ran away in a semi-naked state
screaming whilst she was running. He then chased after her and caught her. When
he caught her he hit her with an open hand across her face. He saw that her nose
was bleeding. He then gave her clothes back to her and ran to his house. Whilst he
was running he fell down, and whilst lying on the ground he heard that she was still
screaming. He then returned to where she was in order to stop her from screaming.
His plea explanation states the following:
I grabbed her and we wrestled and I ended up strangling her since I
wanted her to keep quiet, she fell to the ground whilst I was still strangling
her on the throat, I noticed that she was no longer screaming. I tried to
wake her up, but her body was not moving and I realised that she was
dead.
I saw a drain near the street where I strangled her, I dragged her to that
drain, I opened its lid and threw the body in and put back the lid.
[4] He further states in his plea explanation that he remained in that area for 1 or 2
hours before returning to his house. On the following day he told his girlfriend about
what he had done to the deceased. A few days thereafter he told another person
that he had killed the deceased and hid her body in the drain. He also told his
family who took him to the police station. It was however common cause that the
accused was arrested on 2 November 2013 after the body of the deceased had
been discovered in the drain. The accused makes the following admission in his
plea explanation:
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I admit that by strangling the deceased on her throat I knew that she might
die therefore I acted unlawfully and negligently, I therefore plead guilty to
culpable homicide.
[5] As already indicated the prosecution presented the evidence of Dr Kolosa. The
post mortem report notes that the deceased was 1.67m tall and that she was
obese. He explained that the deceased’s body was in an advanced state of
decomposition when he performed the post mortem examination. This was
consistent with the fact that it had been discovered in a drain and had been in
water for approximately 2 weeks prior to its discovery. As a result of the degree of
decomposition of the body Dr Kolosa was unable to determine the cause of death.
He was also unable to determine whether there had been a sexual assault or not.
He could not exclude the possibility that there had been a sexual assault. In
respect of strangulation, Dr Kolosa reported that his examination of the neck found
autolysis, which occurs as a result of the breaking down of tissue as a result of
decomposition. He was accordingly unable to determine whether strangulation had
occurred. Nothing turns on this since it was common cause that the accused had
strangled the deceased.
[6] Dr Kolosa explained the process of strangulation and the resultant failure of the
respiratory system. He indicated that strangulation requires the application of a
substantial degree of force to the front aspect of the neck. The application of force
would have to be significant enough to occlude or shut-off the airway completely
since it is the occlusion of the airway that results in the respiratory failure and
ultimately the inability of the vascular system to deliver oxygen to the respiratory
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centre located in the brain. As far as the degree of force required was ccerned, Dr
Kolosa stated that the structures of the neck serve to protect the respiratory tract
and the arteries serving the brain. The respiratory tract is a soft tissue organ but is
protected by rings of cartilage which serve to strengthen the soft tissue. These
organs are also protected by strap muscles in the neck. Subcutaneous fat also
serves as protection, which in the case of the deceased, given her obesity, would
have been significant. In order to shut off the air-way to prevent inhaling of oxygen
and the exhaling of carbon dioxide would require therefore significant force.
[7] He explained that the exchange of gases is necessary to ensure that oxygen is
transported via the vascular system to the brain. If the brain is starved of oxygen
the respiratory centre in the brain which controls spontaneous breathing would be
compromised. Once the respiratory centre in the brain is compromised
unconsciousness would follow and, in the event that the respiratory tract remains
shut-off for a period of time, death would ensue. He was not able to state how long
it would take for suffocation and death to occur since this is dependent on a
number of factors. He did however state that it would need to be long enough to
cause the respiratory centre in the brain, which controls spontaneous breathing, to
fail. The effect of this evidence, which was not challenged by the defence, is that
death by manual strangulation would require significant and sustained application
of force to the neck.
Dr Kolosa further explained that if the occlusion of the
respiratory tract is removed even after unconsciousness, there is a significant
probability that respiration would commence spontaneously.
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[8] The prosecution argued that in respect of the charge of rape the only question to
be determined was whether the sexual intercourse, on the probabilities, had
occurred without the deceased’s consent. In this regard the prosecution argued
that although no evidence was led to gainsay the factual averments made by the
accused in the plea explanation, the court was entitled, having regard to all of the
evidence to infer that the admitted sexual intercourse had occurred without the
consent of the deceased.
[9] In respect of the murder charge the prosecution argued that the only issue to be
determined was whether the accused had the requisite intention to commit murder.
In this regard too it was submitted that the court would be entitled, having regard to
the facts as admitted and the evidence led by the prosecution to infer that the
accused indeed did have direct intention to kill the deceased. The prosecution
argued that in any event the admission made by the accused, referred to
hereinabove, constitutes an admission to dolus eventualis in that it is clear that the
accused realised that death may ensue as a result of strangulation. He therefore
foresaw the possibility that such death would result but that he proceeded reckless
as to that foresight and accordingly, on his own version, had the intention to kill the
deceased. The prosecution however argued that this court should find that the
accused had to the direct intention to kill the deceased.
[10] The defence argument was that the prosecution, not having presented evidence to
contradict the factual averments contained in the accused’s plea explanation, is
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bound by those factual averments and that in the circumstances the state had
failed to discharge the onus to establish that the accused had raped the deceased
and that the accused had the necessary mens rea to kill the deceased.
[11] It is appropriate to deal first with the nature of the intention, if any, evidenced by the
accused’s plea explanation as evaluated in the light of the evidence tendered by
the prosecution. The mechanism of manual strangulation described by the Dr
Kolosa leaves very little scope for inadvertent or unintentional strangulation. The
prosecution argued that on the accused’s own version the deceased, following
intercourse had got up in a semi-naked state, informed him that she was going to
report him for rape and then, in that semi-naked state ran away from him
screaming. He pursued her and assaulted her and when she did not stop
screaming returned and then strangled her in order to silence her. It is apparent
from the accused’s description that the deceased put up resistance. They wrestled
and fell to the ground. All the while whilst they were on the ground he continued to
strangle her. He only stopped when she stopped moving. The process of manual
strangulation described by Dr Kolosa suggests that at some point the deceased
would have lapsed into unconsciousness. She would not then have been
screaming or resisting. Yet, according to Dr Kolosa the occlusion of the airway
would have had to be maintained after unconsciousness in order for death to
ensue.
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[12] It was submitted that on the evidence viewed in its totality, that the only reasonable
inference that could be drawn from the facts is that the accused had the intention to
kill the deceased and that he did so in order to silence her and prevent her from
accusing him of rape. I agree. On a careful evaluation of the facts as a whole the
conclusion is inescapable that the accused was not acting negligently, but that his
conduct was deliberate and intentional and that he had the direct intention to kill
the deceased by strangulation. I am accordingly satisfied that the state has proved
beyond a reasonable doubt that the accused is guilty of murder.
[13] Turning to the charge of rape, it was argued by the prosecution that although the
state had not lead evidence to rebut the accused’s explanation regarding the
consensual nature of the sexual intercourse that the court is nevertheless entitled
to evaluate the evidence in its totality and that such evaluation would result in a
finding that the sexual intercourse was not consensual. The sexual intercourse was
admitted. It occurred at an open area in the vicinity of a local school. After the
accused withdrew from the sexual act the deceased ran away from the scene in a
naked state. It was submitted that the accused’s explanation that this had occurred
as a result of his poor performance in the sexual act and that the deceased was so
dissatisfied that she had decided to accuse him falsely of rape is inherently
improbable. So too is the fact that the deceased would initiate sexual intercourse
after leaving her home in search of her boyfriend X […..]. On his own version he
chased after her and assaulted her and that she again thereafter was screaming.
Her conduct, according to the accused, was all on account of her dissatisfaction
with the sexual intercourse. In the light of the improbabilities and the admitted
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circumstances, it was submitted that this court should find that the accused had
raped the deceased.
[14] In my view it is indeed highly improbable that a woman who had consented to
sexual intercourse would, upon her partner's inability to perform the sexual act or
reluctance to continue immediately threaten to cry rape and then proceed to run
away semi-naked screaming Her conduct, as described by the accused, is
inconsistent with consensual sexual intercourse In my view that is the only
reasonable Inference to be drawn from the admitted facts.
[15] I am therefore satisfied that upon consideration of the evidence as a whole that the
prosecution has discharged the onus which rests upon it to prove beyond a
reasonable doubt that the sexual intercourse was without the consent of the
deceased and that the accused is accordingly guilty of rape
[16] In the circumstances the accused is found GUILTY of both COUNT 1 (rape) and
COUNT 2 (murder)
G. GOOSEN
JUDGE OF THE HIGH COURT