Staff Reporter
A 38-year-old Bloemfontein taxi driver sentenced to life in jail for rape, attempted murder and robbery has been set free after he successfully appealed to the Free State High Court against his conviction and imprisonment.
Mthetho Solomon Khauta had already served over two years in prison since he was convicted and sentenced for the violent crimes by the Bloemfontein Regional Court on June 29, 2018.
He had been convicted on two counts of robbery with aggravating circumstances, one count of attempted murder and one count of rape.
All the counts were taken together for purposes of sentencing, resulting in Khauta being condemned to life imprisonment.
The counts arose from the events that took place on the night of September 27, 2015, when the complainant and her friend were attacked by two unknown men at a secluded spot near Lourier Park in Bloemfontein.
Neither the complainant nor her friend were able to identify any of the two perpetrators because of the darkness at the place where the attack occurred.
Khauta was arrested almost 12 months later on the basis of DNA evidence purporting to link his DNA to the DNA found in the vaginal swabs taken from the complainant.
During his trial in the Bloemfontein Regional Court, the complainant testified that on the night in question, she and her friend drove in his car to the secluded spot where they became intimate on the back seat of the vehicle.
Afterwards, she told the court, when they wanted to move back to the front seats, the two men appeared out of the darkness, with one of them wielding a firearm.
In the struggle that ensued, the friend was shot in the stomach, but he managed to run away.
The two men then drove the friend’s car for a short distance with the complainant still in the front passenger seat.
When they stopped the car, they ordered her to undress, whereafter they both raped her.
They then left her at the car and disappeared on foot, having also stolen two cellphones from the victims.
At the trial, the state presented evidence that Khauta was in possession of one of the two cellphones at a later stage, but no dates were mentioned.
The state also presented evidence relating to the DNA results in the form of an affidavit by a warrant officer, Eloise Reynolds, a forensic analyst at the Forensic Science Laboratory in Pretoria.
Presiding over the appeal case in the High Court, Judge PJ Loubser scrutinised the evidence presented in the lower court and concluded that the findings of the trial magistrate were “clearly wrong”.
In the case of the cellphone evidence, the judge noted that it was not known whether Khauta was in possession of the handset a few hours after the incident or only some months afterwards.
“In any event, it was the version of the appellant at the trial that he had obtained the cellphone from someone else,” Judge Loubser said in his judgment handed down on September 10.
“On its own, the evidence relating to the cellphone therefore falls short of proving anything against the appellant.”
Since there was no other evidence that could point to the guilt of the appellant, the judge noted, the appeal therefore mainly concerned the DNA chain of evidence and the chain of custody of exhibits leading to the DNA results that were presented in the lower court.
That evidence had shortcomings too, he said.
“In the absence of any further evidence, and in the absence of any further admissions made by the defence in the court a quo, it is evident that there were no indications whatsoever as to the identity of the persons from whom the forensic samples were obtained, under which numbers those respective samples were sealed and how the sealed bags with the samples ended up in the hands of warrant officer Reynolds,” Judge Loubser said.
“Despite these glaring shortcomings, the trial magistrate found in his judgment that the DNA evidence had placed the appellant ‘right at the scene of the crime’.
“In this respect the findings of the magistrate were clearly wrong.
“As already indicated, it is not even known whether the one sample came from the complainant, and the other sample from the appellant.”
The judge concluded the conviction of the appellant on all four counts could not stand.
He therefore set aside Khauta’s conviction on all counts as well as his life imprisonment.
Judge C Reinders concurred with the order.
