Convicted murderer and rapist Luyanda Botha’s application to have a case of attempted rape against him struck off the court roll was denied at the Wynberg Magistrate’s Court on Tuesday.
Botha, who is serving three life sentences for the rape and murder of UCT student Uyinene Mrwetyana, brought a section 174 application before court as he faces a charge of attempted rape of a 21-year-old nursing student in 2014 in Athlone.
Magistrate Anthea Ramos declined his application and said she was “not of the belief that there is no evidence (against Botha)”.
The matter was postponed to August 2 and 6 when Botha is expected to testify in court.
Section 174 of the Criminal Procedure Act provides that: “If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty.”
National Prosecuting Authority (NPA) spokesperson Eric Ntabazalila said: “We can confirm that the application was declined by the court. On August 2 he will take the stand and testify and after that we will continue with cross-examination. The emphasis is that there is a case for him to answer, that’s why his application for the case to be thrown out of court failed. There is evidence which links him to the case. In fact, even during the arguments, he did not dismiss that he was present in that building on the day. But going forward, we will be able to prove our case in court...
“The court will provide reasons for the dismissal of the application when it delivers its judgment at the end of his attempted rape case,” said Ntabazalila.
Botha’s legal aid counsel told the court they needed time to consult again before he testifies, “as consulting at Pollsmoor has been difficult”. Their last consultation was in January.
The State alleges that Botha had visited a woman at an institution but found the victim who was taking a bath at the time. He allegedly attempted to rape her but she fought him off. He was later arrested.
Botha has pleaded not guilty in this matter.
Charges against Botha were reinstated following his conviction and sentence for Mrwetyana’s murder and rape. After making sexual advances to Mrwetyana, Botha raped her and locked her in a post office safe where she was bludgeoned to death with a blunt object.
After spending the evening drinking at a local tavern, Botha returned to the post office where he bundled her body into his car boot and drove to Lingelethu West where he burnt the body.
He was sentenced for Mrwetyana's rape and murder in November 2019.
Cape Times