Recent Case: Law of evidence

• Author: Meintjes-van der Walt, L.
• DOI: https://doi.org/10.47348/SACJ/v35/i2a7
• Published date: 03 October 2022
• Date: 03 October 2022
• Citation: (2022) 35 SACJ 246
• Pages: 246-267

Law of evidence

LIRIEKA MEINTJES-VAN DER WALT

University of Fort Hare

1 Whether the DNA circumstantial evidence was sufficient

to convict the accused

The applicant’s conviction arose as a result of a robbery that took

place at the G-Force Security Solutions Depot (G4S) in Marble Hall.

The applicant was part of a group of armed men who broke into the

cash depot of the G4S premises on 9 December 2015 and after having

forced open the security doors and the roller ga rage door, they went in

and removed more than R11 million in cash (para [4]). The applicant,

David Papiki Komane, together with three of his erstwhile co-accused ,

was convicted of robbery with aggravating circumstances in the

Limpopo division of the high court, Polokwane, and as no substantial

and compelling circumsta nces were found, he was sentenced to the

prescribed 18 years imprisonment (para [1]). His application for leave

to appeal against both the conviction and the sentence was di smissed

by the high court (para [1]). The applicant subsequently petitioned the

Supreme Court of Appeal for leave to appeal against the conviction

but this application was also dismissed (para [2]). The applicant, in

terms of s 17(2)( f) of the Superior Courts Act 10 of 2013, then lodged

a further application to the President of the SCA for reconsideration of

the decision dismissing the leave to appeal (para [2]). The application

for reconsideration was heard by Navsa AP, who ordered that the

application for leave to appeal be referred for oral argument in terms

of s 17(2)(d) of the Superior Courts Act. The parties were di rected

to be prepared, if called upon to do so, to address this court on the

merits of the appeal (para [2]). The SCA condoned the late ling of the

record and the heads of argument (para [3]).

The applicant was arrested at Marble Hall Police Station where he

worked as a police constable (para [4]). The following day he was taken

to and performed a pointing out in Siyabuswa where he collected a

parcel containing R600,00 0 at the house of a healer/priest (para [4]).

Later that day he made a statement to Colonel Serfontein (para [4]).

The Supreme Court of Appeal, in Komane v S [2022] JOL 52949 (SCA),

had to decide whether circumstantial evidence consisting of DNA

evidence, a confession and a pointing out was sufcient to convict the

applicant (para [12]). The applicant, David Papiki Komane, contended

that the quality and sufciency of the circumst antial evidence were

inadequate to sustain a conviction (para [13]).

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(2022) 35 SACJ 246

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In respect of the DNA evidence, Ms Jenny Cooks, a forensic analyst,

gave expert evidence. The DNA results were obtained from swab F38

taken from the yellow bin that was found in the vehicle (para [11]).

The swab yielded a mixture contributed by at least two persons. From

this sample, the DNA characteristics matched the reference sample

marked ‘Komane David’. This nding gave the most conservative

occurrence of one in eight million people (para [16]). Ms Cooks

explained that, although the sample contained a combination of

different characteristics, including characteristics of other individuals,

it did not diminish the fact t hat the features of the sample marked

‘Komane David’ were found in every region analysed in the mix ture

(para [16]). Another mixture prole obtained from one of the swabs

taken from the grocery bag in k it 14DCAY3024 contained in sealed

grocery bag number PA4002025002, matched the DNA results of the

known reference sample marked ‘Komane David’. Ms Cooks’ expert

evidence was that despite the mix of DNA in F38, featu res of Komane’s

undisputed DNA were found throughout the mixt ure of DNA in F38

(para [16]). Furthermore, a different mixtu re of DNA evidence was

found by conducting a forensic analysis of a swab which was taken

from a grocery bag contained i n kit 14DCAY3024, found in the sealed

bag, marked PA4002025002. Some of that DNA also matched the

undisputed DNA of Komane, in the reference sample he provided.

Ms Cooks testied that ‘[t]he most conservative occur rence for this

mixture was one i n 340 billion people’ (para [17]). The trial court

found that the DNA from the yellow bin (swab F38) and the DNA

swab from the plastic bag served as ‘uncontroverted reference pieces

of evidence against the applicant’ which placed him at the place where

the money was counted and shared (para [18]). In addition, further

DNA evidence linked the applicant to his erstwhi le co-accused, one

and two, as the grocery bag and the bin where t he samples matching

those of the appellant, were found, were located in their motor vehicle,

the red BMW. The court accepted this as conclusive proof that the

appellant had been in their company shortly af ter the robbery and that

he shared in the spoils of the robber y (para [18]).

The trial court f urther remarked that Papo and Segoapa, who were

indemnied in ter ms of s 204 of the CPA, testied to a substantia l

part of the prosecution’s case (para [6]). They testied that they had

recruited the notorious robber, David Mokete and that the persons

accompanying Mr David Mokete were the persons who had been

the co-accused of the applicant in the cour t a quo. The co-accused

arrived in a red BMW. Accused 2, who was known as ‘Jeff’ or ‘General’,

successfully coerced Mpheroane, a co-accused, to disclose information

regarding the G4S cash depot in Ma rble Hall (para [6]).

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https://doi.org/10.47348/SACJ/v35/i2a7

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