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[2018] ZAECMHC 70
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S v Siyeka and Another (CC 06/2018) [2018] ZAECMHC 70 (11 December 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION:
MTHATHA]
CASE
NO. CC 06/2018
In
the matter between:
THE
STATE
VS
XOLISA
SIYEKA
ACCUSED NO. 1
MNCEDISI
VUBA
ACCUSED NO. 2
JUDGMENT
JOLWANA
J
Introduction
[1]
The accused were charged with the offence of rape in contravention of
section 3 read with section1, 56 (1), 57, 58, 59, 60 and
61 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007. It is alleged that upon or about the 02
September 2017 the
accused did unlawfully and intentionally have sexual intercourse with
a female person, to wit, S Q (S) without
her consent.
[2]
The prosecution did not make an outline of its case. However, in its
summary of substantial facts in terms of Section 144(3)
(a) of Act 51
of 1977 annexed to the indictment the state’s case is
summarised as follows:
Summary
of substantial facts
“
1. On the 2
nd
of September 2017 the victim and her friends were enjoying themselves
with alcohol.
2. At about 01:30 the
victim’s friends left the home where they were to another home
to continue enjoying themselves.
3. The victim was left
alone with accused 1 and accused 2 and Z S, as she was sleeping due
to the fact that she was under the influence
of alcohol.
4. The complainant was
then raped by accused 1, accused 2 and Z S.
5. Her friend witnessed
the incident and reported it to the victim’s mother.
6. The victim’s
mother came to the room where the victim was sleeping and witnessed
accused 2 having sexual intercourse with
the victim.
7. Z S, accused 2 and
accused 1 respectively, advanced towards the victim’s mother to
assault her and they were subsequently
stabbed by her.
8. The victim was then
taken away by her mother and the police were then summoned.
9. Accused 1 and accused
2 were taken for medical treatment and were then placed under arrest,
on 2
nd
of September 2017.
10. At all material times
in committing this offence, the accused acted in furtherance of a
common purpose.”
Plea
explanation
[3]
Both accused pleaded not guilty to the charge. The plea explanation
in respect of accused no.1 was that he denied raping S.
On that day
he drank liquor and on feeling drunk he went to sleep in the room in
which the incident took place. He was awoken from
his sleep by being
stabbed by the victim’s mother and tried to run.
[4]
Accused no. 2 also denied raping Siphokazi. His plea explanation was
that he was called to the scene by N who said he was being
called by
the deceased, Z S. Whilst waiting to talk to Z, N borrowed his phone
to call S’s mother. Whilst still waiting S’s
mother
arrived, lit him with a torch and stabbed him once. He managed to run
to his home.
[5]
It was submitted on behalf of both accused that blood and buccal
samples were taken from them for purposes of DNA analysis.
The
results excluded both of them.
Evidence
for the prosecution
[6]
The state called N N J (N) to testify. Her evidence was that she
currently stayes at Unifold in Queenstown but before that she
stayed
for about a year before the incident at Zwartwater in Lady Frere, the
same locality in which both accused, Z and S stayed.
Therefore she
knew all of them very well.
[7]
N testified that on the 01 September 2017 Siphokazi was at her home,
the M homestead with N, Z, Z (accused no.1’ father)
F (Z’s
mother), M, accused no.1 and accused no.2. They were drinking autumn
harvest crackling and viceroy brandy. However,
between 20:00 and
21:00 S who is F’s daughter chased them away as she wanted to
sleep. They then moved to Zamile’s
bedroom which is in a four
roomed house adjacent to the M homestead. M did not go to Zamile’s
bedroom, he went to sleep instead.
That evening N drank only one tot
of brandy.
[8]
N left the others in Zamile’s bedroom to see her boyfriend who
was waiting for her at a corner near the four roomed house.
She
returned after about 30 minutes or so later and found accused no.1
quarrelling with his father Z as a result of which accused
no.1
stabbed Z who then left. N also left.
[9]
Siphokazi went to sleep in a mattress that was in the kitchen in the
same four roomed house. N left S sleeping there to take
F to the M
homestead where she stayed which is near to the four roomed house.
[10]
When N returned she found accused no.2 “fingering” S who
was sound asleep in the mattress in the kitchen. S’s
trousers
were open, accused no. 2’s hand was under her trousers and his
fingers were in S’s vagina. When she left earlier
S had her
jeans, tights and panty on and properly zipped and buttoned. N told
accused no.2 to stop what he was doing and he stopped.
During all of
this S was fast asleep and was not aware of what accused no.2 was
doing as she was drunk.
[11]
Thereafter, N took a bottle of the autumn harvest crackling to F in
the M homestead. She returned to Z’s bedroom and
she and Z
moved S from the kitchen and put her on a base bed in Z’s
bedroom. At this stage everybody had gone except herself,
S, accused
no.1 and accused no.2. She covered S with a blanket and left to see
her boyfriend again outside. At this stage S was
alone in the
bedroom, accused no.1 and accused no.2 were in the kitchen although
she could not recall what they were doing.
[12]
After spending about an hour with her boyfriend N went to the M
homestead where she stayed to sleep. However, before going
to sleep
she went to check on S in Z’s bedroom where she had left her
sleeping on a base bed. She found accused no.1 having
sexual
intercourse with S on the bed. Accused no.1 was on top of S and was
undressed. S’s eyes were closed and she was crying.
Her pants
had been pulled down to her knees together with her tight and
panties. Accused no.1’s trousers were also on his
knees. He was
making an up and down movement on top of S who was lying on her
stomach.
[13]
N pulled accused no.1 away from Siphokazi and as he moved away she
could see his penis. Accused no.2 and Z were watching and
did stop
accused no.1. The house had electric lights but only Z’s
bedroom where S was sleeping had lights on. She tried to
wake her up
and even poured water on her. Her eyes were open but could not stand
on her own. She wanted to take her to the M homestead.
However, S was
too drunk and she therefore put her on the bed again as she did not
know what else to do.
[14]
Z and accused no.1 were in the bedroom and accused no.2 was at the
door. N pulled up S’s panties, tight and trousers,
zipped and
buttoned her trousers and covered her with a blanket. N left for the
M homestead to sleep leaving S with accused no.1,
accused no.2 as
well as Z.
[15]
However, she could not fall asleep and decided to return to Z’s
bedroom. She found Z having sexual intercourse with S
who was lying
on her back with Z on top and making an up and down movement with his
penis in her vagina. Accused no.1 and accused
no.2 were watching and
did nothing to try to stop Z. When she intervened telling them that
what they were doing was wrong, accused
no.1 wanted to hit her and
she took a stick from accused no.2 to hit him. She and accused no.2
hit accused no.1 and they were stopped
by Z. N tried to wake S up but
she did not wake up.
[16]
She fastened Siphokazi’s trousers again. She was assured by Z
that they would not do anything to her. She went to the
M homestead
to ask for help in taking S home. She reported what had happened but
no one was paying any attention.
[17]
N returned to Z’s bedroom and when she arrived accused no.1
closed the door before she entered. She peeped through the
holes on
the door and saw accused no.1 having sexual intercourse with S.
Accused no.1 stood up from the bed and cut off the electric
wires to
cut off electricity. As a result she could no longer see what was
happening inside.
[18]
N then left to call her cousin L from the M homestead and they both
came to Zamile’s bedroom. They tried to open the
door. She
thought a sofa must have been pushed to the door so that it could not
open. She could feel that something was blocking
the door. L
suggested that they should go to call S’s mother to come and
fetch her. They went to S’s grandmother’s
homestead. S’s
grandmother took them to M so that M could call Siphokazi’s
mother as they all did not have airtime.
[19]
M phoned S’s mother who said she was coming. L left to look
after her baby. S’s mother arrived with the sub-headman
and
other people. Before they reached the four roomed house they had left
S in with Z, accused no.1 and accused no.2 they could
hear S
screaming. S’s mother asked her to show her Z’s bedroom.
The other people were outside while others were in
the kitchen.
[20]
S’s mother pushed Z’s bedroom door and entered. She
entered as well. They both used their cell phone torches to
light. S
was lying on her back while accused no.1 and Z were holding her legs.
S was crying. When they became aware of their presence
they jumped
off the bed and started running while S’s mother was stabbing
them.
[21]
N was pushed away by accused no.2 who got out of the room and jumped
out of the window of the other room. N saw accused no.1
on the door
way of the other room and she hit him and pulled him on to the bed in
the other room. N returned to Z’s bedroom
and found him lying
behind the door bleeding and there was blood on the floor.
[22]
They went to P’s homestead to wait for the police. The police
and ambulance arrived and she made a statement to the police.
She
denied that accused no.1 was sleeping and was woken up from his sleep
being stabbed by S’s mother. She denied that she
had called
accused no.2 saying Z wanted him-she said accused no.2 went to that
house to drink. She denied that accused no.2 was
just stabbed by S’s
mother’s while waiting for Z in the kitchen.
[23]
Under cross examination she testified that the M homestead in which
she stayed is her paternal aunt, F’s homestead. She
confirmed
that at some stage other people left and only Z, accused no.1 and
accused no.2 remained with S and herself. She denied
that she ever
told accused no.2 that he was needed by Z. She denied that she was
drunk and said she had come back from school.
She disputed both
accuseds’ versions. She testified that she could not remember
how many times she went away and came back
to find the accused raping
S.
[24]
When she went to report what was happening in the M homestead she
found her grandfather, F’s husband drunk and he is
an old man.
Her boyfriend did not want to get involved. She testified that when
S’s mother got to Z’s bedroom and saw
what the accused
and Z were doing she asked them what they were doing. They jumped off
the bed and were stabbed by S’s mother
when they tried to run.
[25]
When certain inconsistences between her evidence and the statement
made by S’s mother were pointed out to her she insisted
on her
version and remained unfazed. She testified that she disagreed with
the police sketch of the four roomed house because in
the police’s
drawing the house has one door inside whereas it actually has three
doors inside excluding the outside kitchen
door. She proceeded to
make her own drawing. When her drawing was shown to the accused they
confirmed the correctness thereof as
against that of the police.
[26]
The next state witness was N T Q, (S’s mother). She testified
that Siphokazi is her daughter but stays with her mother
in the same
locality of Zwartwater. On 02 September 2017 she was at her homestead
asleep when she was woken up by a phone call
at 01:13 in the morning.
It was her mother at the other end of the phone who told her that N
and L were at her homestead to tell
her that S was being raped by
some young men.
[27]
She called a member of the Police Forum, one T B to ask him to call
the police. However, he was on voice mail. Because it is
dangerous in
the area with some naughty young men making it unsafe to walk at
night, she armed herself with a knife which she put
in her pinafore.
She went to the sub-headman, Mr Malibongwe Ntshetshe (sub-headman)
who stays near her home. He said he was coming
with her.
[28]
As they continued walking now having been joined by L and S M, she
received a call from N telling them to hurry up. When they
got close
to the homestead in which N had been waiting for her, N came out with
T F. The sub-headman suggested that they should
wait for the police.
She refused after being told by N that S had been crying since about
22:00.
[29]
From about 100m away she could hear S screaming from the four roomed
house. When they eventually arrived she asked S, L and
T to monitor
the windows. The sub-headman had not yet arrived as he had turned
away to buy airtime. She asked N to show her the
room where S was.
With her phone torch on she proceeded to the room from which S’s
scream came. N had opened the kitchen
door for her. The bedroom door
was not closed.
[30]
When she entered the bedroom with her cellphone providing light she
could see Z, S, accused no.1 and accused no.2 all on the
bed. Accused
no.2 had lifted S’s buttocks with his penis inside her buttocks
raping her. She asked them what they were doing.
Accused no.2 moved
away from S and she saw his penis. When she entered accused no.1 was
not doing anything at that stage but his
trousers and underwear were
on his knees and he was kneeling behind accused no.2.
[31]
Accused no.2 jumped off the bed first and came straight at her. She
drew her knife and stabbed him once as he passed her. Z
came and
tried to hold her and they struggled and she fell on her knees and he
also fell. As Z was standing up she stabbed him
while still on her
knees. In the meantime accused no.1 was dressing up. As accused no.1
came she met him halfway and stabbed him
several times. He ran into
another room and fell on his face on the bed. She was not sure where
N was when all of this was happening
as she was very emotional. She
got out of the house leaving S on the bed.
[32]
S was non responsive when she called her name. She would repeat her
own name after it was called. Only her upper body clothes
were on her
with the lower body being naked. She reported to the members of the
community who were there what was happening. They
went into the house
to fetch S who could not even walk. T lent S her dress and they
carried her out of the house. They went to
wait for the police at a
nearby homestead. Police arrived and took her and S to Glen Grey
Hospital where S was treated and discharged.
They were both taken to
Dubeni Police Station from which she was taken to Komani police
cells. S was to be taken home by the police.
S did not know what had
happened to her and at that time she did not tell her. It was only
when she appeared in court on Monday
that she told her what had
happened. She knew both accused as well as Z who died that day. She
knew accused no.1 as a very troublesome
young man and had encounters
with him before.
[33]
She disputed accused no.1’s version that he was sleeping in
that room and was awoken from his sleep being stabbed by
her. She
also disputed accused no.2’s version that he was waiting in the
kitchen for N who had gone to call S’s grandmother
when she
entered and stabbed him. She disputed the version presented by both
accused as being untrue. Her version did not change
during cross
examination.
[34]
The state then called the complainant, S to the witness stand. She
testified that on the 01 September 2017 she was in town
with her
friend N where they were drinking savannah. They returned from town
at about 13:00. They later went to the M homestead
at about 19:00
where they found Z, S, N, Z, Z’s mother F, N, accused no.1 and
accused no.2. They were drinking viceroy brandy
and wines. S and N
did not drink.
[35]
The viceroy was being taken neat. After S chased everybody away from
the M homestead they proceeded to Z’s place to continue
drinking. She was sitting on the bed as the drinking continued. She
was also drinking and at some point she fell asleep. She was
wearing
pink panties and a pink brassiere, a brownish tight, blue jeans, a
mohair jersey and beige pump shoes. She fell asleep
with these
clothes on.
[36]
She was later woken up by N who wanted her to sleep at her home while
she wanted to go and sleep at her own home. She woke
up and left. She
was followed by accused no.2 who assaulted her with a stick and
forced her to return to Z’s bedroom where
drinking was taking
place. She did not know what happened thereafter until she woke up in
hospital. She did not know how she got
to hospital. Police later took
her from hospital to the police station. When her mother returned
from prison she told her what
had happened. She did not give her
consent to Z, accused no.1 and accused no.2 to have sexual
intercourse with her.
[37]
Under cross examination she denied that she had a love relationship
with Z. She testified that she could not possibly have
a love
relationship with Z as he was her cousin. When it was put to her that
accused no.1 and accused no.2 denied raping her she
said she did not
know as she woke up in hospital. She did not recall everything that
happened that night because she had consumed
alcohol.
[38]
The state called Dr Tyhala who testified that she was on duty on 02
September 2017 and examined Siphokazi. Exhibit “C”,
the
J88 medico-legal examination report was completed by her. Her
clinical findings were that S had been sexually assaulted, had
no
memory of the event, was crying and anxious, had slight swelling on
the left periorbital area and reddened eyes. Her conclusions
were
that S had been sexually assaulted although there were no vaginal or
cervical injuries. She had abrasions on the posterior
fourchette, she
had a skin tag at 8:00 of the perineum.
[39]
The other state witness, Captain Makhosandile Mkula’s evidence
did not take the matter any further. The state read into
the record
exhibit “E” being an affidavit in terms of
section 212
of
the
Criminal Procedure Act 51 of 1977
. It is a Biology Report
compiled by a Forensic Analyst and Reporting Officer, Warrant Officer
Luthando Lukhanyo Tiya. The results
excluded both accused. The state
thereafter closed its case.
Evidence
for the defence
Accused
no.1
[40]
Accused no.1 testified in his defence. He testified that on the 01
September 2017 he spent the whole day at his home and at
about 16:00
he went to the M homestead. On his arrival there he found F, S, Z, N,
S and Z. They were consuming alcohol which was
autumn haverst
crackling and brandy except Si who was not drinking. He joined them
in consuming alcohol and he got drunk. He denied
that N only drank
one tot of brandy and said she was also partaking of every available
alcohol.
[41]
When he felt drunk he took a bottle of brandy which had a small
amount of liquor and went to Zamile’s bedroom. He finished
off
the little brandy and fell asleep. He woke up being stabbed, for no
reason, by N, S’s mother. She stabbed him so much
that he had
several stab wounds and his intestines were exposed as a result of
the stabbing. He tried to run but fell inside the
house although he
was not sure in which room he fell. He lost consciousness and
regained it in hospital. He spent about a month
at Frontier and Glen
Grey Hospitals.
[42]
He denied raping S or assisting anybody to rape her. He confirmed
that indeed he may have been found in Z’s bed as he
went there
to sleep after feeling drowsy but denied taking part in raping S.
[43]
Under cross examination he testified that Z and accused no.2 were
friends and he had been invited to the M homestead by Z.
He went
there to drink as Z had been in town and had said he was going to buy
liquor from town. He confirmed that indeed N was
there at the M
homestead. He testified that he must have consumed about 10 glasses
of autumn harvest crackling and 7-8 tots of
viceroy brandy.
[44]
He went to Z’s room to sleep because that is what he did when
he went to drink at the M homestead. Z’s bedroom
was the only
room with lights on. He slept on a bed which was a base and a matress
that was covered with blankets. He slept on
top of the blankets. When
he went to sleep the lights were on and when he woke up being stabbed
by S’s mother the lights
were off. She lit him with a torch
asking them what they were doing. He did not see any other person on
the bed or in the room
as he was trying to escape. He confirmed that
photo 6 of exhibit “B” depicted Z’s bedroom and
that it has no
matress.
[45]
He testified that when he slept there the matress was there with a
blanket covering it. He confirmed that photo 30 depicted
a kitchen
with the matress and he did not know when the matress was taken
there. When he slept in Z’s bedroom before he was
woken up by
being stabbed by S’s mother it had a base with matress and
covered with a blanket. He did not know who removed
the matress.
[46]
He testified that S’s mother just arrived and stabbed everyone
who was in that room. When asked who was everyone he said
it was
accused no.2 and Z who were said to have also been stabbed by S’s
mother.
Accused
no.2
[47]
Accused no.2 also testified in his defence. He testified that at
about 21:30 on the 01 September 2017 he went to a shop at
Z’s
homestead (the M homestead) to buy airtime. He met N there at the
shop and she asked him if he had met Z as he was looking
for him. She
then said they should go together to Z’s place – the four
roomed house. They entered at the kitchen and
N said she was going to
call Z from his bedroom. She came back saying that Z said he was
coming. He did not want to stay so he
reminded N to call him again.
She went back to Z’s bedroom and again returned saying Z said
he was coming and that he must
wait.
[48]
He waited for a while and he again told N to tell Z that he was
leaving. She then said these people are kissing and that he
must go
and tell him himself that he was leaving. He then told her that he
does not enter another homestead’s bedroom. She
went back to
Z’s bedroom and came back telling him that Z and S were kissing
and that accused no.1 was also in that bedroom.
N also said that they
had switched the light off and that S was starting her things.
[49]
At that stage N asked him to lend her his phone so that she could
call S’s mother to come and fetch her. He gave his
phone to N.
She asked him for S’s mother’s phone number which he did
not have. She then said she would ask for it from
the people on the
shop side. She came back with L saying she did not get the phone
number.
[50]
N and L left saying they were going to call S’s mother
themselves. He told her to take his phone with her so that if
they
met anyone who knew S’s mother’s phone number they could
get it and phone her. She came back without L but with
S’s
mother. He was still in the kitchen which had no lights on.
[51]
He was in the kitchen next to the door when they arrived. S’s
mother lit him with a phone torch and stabbed him on the
back. He
asked her why she was stabbing him. She reversed and tripped on a
chair that was in the kitchen. He exited through the
kitchen door
after being stabbed by her and went home. He told his younger brother
that he had been stabbed and his younger brother
said he was going to
call an ambulance.
[52]
The ambulance arrived with accused no.1 and they were both taken to
Frontier Hospital where he was admitted for six days. He
testified
that N was drunk but not so drunk that she would not know what was
happening. He disputed most of N’s testimony
and said he never
entered Z’s bedroom as he does not enter another homestead’s
bedroom. He also disputed all of S’s
evidence and denied
“fingering” her or having sexual intercourse with her. He
denied having sexual intercourse with
S anally as her mother had
testified or at all.
[53]
Under cross examination he testified that when he arrived at the four
roomed house in which Z stayed, he found N’s brother
T there
with T, M, M’s friend and N in the kitchen. He testified that Z
and S had had a love relationship for six months
when the incident
happened. Before that S had a love relationship with Z’s
younger brother. This resulted in Z’s mother
assaulting S. It
is important to note that this version was never put to any of the
state witnesses nor did the accused mention
it in his evidence in
chief. The only issue that was put to S relates to her alleged love
relationship with Z.
[54]
He also testified that when N returned with S’s mother he was
still waiting in the kitchen with T, T, M, M’s friend
and N.
This was also never put to N or S’s mother. He also testified
that the reason S’s mother came there and stabbed
him for no
apparent reason is because they were not in good terms. This was also
never put to N, S’s mother and S when they
testified.
The
assessment of the evidence.
[55]
There were five witnesses for the state. I will start with the last
witness, captain Mkula and end with N, the first witness.
Captain
Mkula did not seem to have played a major role in the investigation
of the case. His evidence largely related to placing
the accused
under arrest at Glen Grey Hospital. His evidence was more of a formal
nature and as such was not relevant for purposes
of proving the
involvement of the accused in the offence.
[56]
The evidence of Dr Tyhala who examined S established as a fact, that
she was sexually assaulted. However, her evidence did
not give any
information as to who was involved in the commission of the offence.
It also corroborates the evidence of S herself
to the effect that she
was drunk and did not know what had happened to her. In the J88
medico-legal examination report that Dr
Tyhala completed, she, among
other things, reports that S’s mental health and emotional
status was anxious, crying and unable
to remember what had happened.
[57]
On clinical evidence of drugs or alcohol, Dr Tyhala reported of
“
alcohol ingestion yesterday 2017/9/1
”. This also
corroborates S’s evidence that she had been drinking and was
drunk on the night in question. S did not
try to pretend that she
personally knew what had happened to her beyond what her mother told
her. She did not try to implicate
any of the accused.
[58]
It is not in dispute that S was raped as N testified. It is not in
dispute that Dr Tyhala made the findings that she did nor
are her
conclusions as contained in the J88 medico-legal report being
challenged. All that the accused are saying is that they
did not rape
S and were not involved in the commission of the offence in any way
whatsoever. Their version is that they never had
sexual intercourse
at all with S that night and they did not assist anyone to rape her.
[59]
This brings me to the two witnesses whose evidence is that they saw S
being raped by the accused and Z. One of the two witnesses
is N Q,
S’s mother. Her evidence is that it was at 01:13 in the morning
of the 02 September 2017 when she received a call
from her mother
that her child S was being raped by some young men.
[60]
When she arrived at Z’s bedroom to which she was shown by N,
she saw accused no.2 raping the complainant anally. She
also
described what the position of each of the people in that room was
and what was happening. However, her evidence is that only
accused
no.2 was raping S when she arrived. She stabbed accused no.1, accused
no.2 and Z. Z succumbed to the stab wounds. That
all three of them
were stabbed by S’s mother is common cause.
[61]
The only dispute relates to why they were stabbed and in respect of
accused no.2 whether he was stabbed in the kitchen or in
Z’s
bedroom. Accused no.1’s evidence is that he was asleep when he
woke up being stabbed by S’s mother. He has
no real theory as
to why she stabbed him nor does he know how she got there as he
claims to have woken up being stabbed. However,
he corroborated S’s
mother’s evidence on being stabbed in Z’s bedroom. This
is the very same bedroom in which
S’s mother testified to
having found him kneeling behind accused no.2 while the latter was
anally raping S.
[62]
Accused no.2 gave evidence of being aware how S’s mother got
there. His version is that he gave his own cell phone to
N who
together with L, were going to call S’s mother to come and
fetch S. According to accused no.2 S’s mother found
him in the
kitchen in the four roomed house in which Z stayed. She entered and
stabbed him for no reason. He, however, corroborates
N and S’s
mother’s evidence that N went to call S’s mother and she
in fact came. N corroborates S’s mother
that she found the
three, Z, accused no.1 and accused no.2 in Z’s bedroom and at
that time accused no.2 was raping S.
[63]
This brings me to N’s evidence. Put briefly her evidence is
that on different occasions she saw each of the accused and
Z raping
S and this started with accused no.2 “
fingering
”
her. She described the “
fingering”
as accused no.2
having inserted his fingers in S’s vagina. It was never
suggested that N could not have seen this happening
for whatever
reason. Accused no.2’s case is simply that he could not have
done this “
fingering”
and could not have raped S
as he never even saw her that day. N did not know how many times she
went away and returned to find
one of the accused or Z in the act of
raping S who was heavily inebriated and was not aware of what was
happening.
[64]
Mr Gxaba, counsel for both accused pointed out that N was a single
witness in so far as the “
fingering”
and some of
the alleged rape incidents which only she witnessed. I understood
this to exclude the last incident which was allegedly
witnessed by
both N and S’s mother. On this occasion it was N’s and
S’s mother’s evidence that they saw
accused no.2 having
inserted his penis in S’s anus thus raping her in the presence
of accused no.1 and Z.
[65]
In my view, N’s evidence was very clear, consistent and
credible in her description of what she saw. She never deviated
from
her evidence in describing what she saw when she found either of the
accused and Z raping S on those different occasions while
others were
not only in the room but were watching. On the last occasion her
evidence is corroborated by that of S’s mother.
S’s
mother also gave very clear evidence about all of the accused, Z and
S being on the bed with accused no.2 raping her.
In N’s
evidence which is credible and remains unchallenged in any cogent
way, she saw each of the accused raping S who was
heavily drunk and
crying and could not even stand or walk.
[66]
Mr Gxaba pointed out the following five discrepancies in the state’s
evidence:
1.
N had testified that she drank one tot of brandy which was poured out
for her by accused no.2. On the other hand S had testified
that N
took one tot of brandy which she poured out for herself.
2.
N said she covered S with a blanket on the bed and left her whereas S
said N wanted her to sleep at her (N’s ) house while
she wanted
to go home, left going home and was followed by accused no.2 who beat
her all over her body and drove her back to Z’s
place. N did
not talk about S leaving and being beaten up by accused no.2 outside.
3.
N said she went to call S’s mother, they entered Z’s
bedroom and S’s mother closed the door. She and S’s
mother had thier cellphone torches on. She observed Z and accused
no.1 each holding S’s legs while accused no.2 was raping
S. In
this regard S’s mother’s evidence was that when she
entered the room she found accused no.2 having sexual intercourse
with S anally while lifting her buttocks with accused no.1 kneeling
behind accused no.2 next to the wall.
4.
N was asked how many times did she go out and when she came back she
found S being raped and she said she did not remember.
5.
DNA evidence excludes both accused and this contradicted N’s
evidence of having seen S being raped by accused no.1 and
accused no.
2.
[67]
About the first point I am not sure why it is significant that N said
her one tot was poured out for her by accused no.2 when
S said N
poured herself one tot. They both agree that she drank only one tot
of brandy. The same applies to S’s evidence
of having tried to
leave and was beaten up all over her body by accused no.2 who drove
her back to Z’s place. This is alleged
to have happened
outside. It may very well be that if it happened N did not see it as
it happened outside at night.
[68]
The third point is about accused no.1 and Z allegedly holding S’s
legs while accused no.2 was raping S as N described.
N and S’s
mother agree that accused no.2 was having sexual intercourse with S
when they arrived. This is also corroborated
by Dr Tyhala who
completed the J88 form and found peri anal abrasions and a skin tag
at 8:00 position.
[69]
The fact that N did not give the number of times the rape incidents
occurred that night does not, in my view, derogate from
her evidence
of having seen both accused and Z having sexual intercourse with S on
several occasions in the presence of others.
[70]
Despite the criticism based on these four discrepancies I remain
extremely satisfied with N’s evidence and that of S’s
mother. I will deal with the DNA results later. I was similarly
impressed by S owning up to having been drunk and not knowing what
had happened to her beyond being told by others instead of trying to
implicate the accused. Their evidence, in many ways corroborated
each
other in most material respects. There is also the independent
evidence of Dr Tyhala that S was sexually assaulted. She testified
that she might not have had vaginal injuries if her muscle were
relaxed and was drunk and therefore not offering any resistance.
I
understood her evidence as being that the lack of physical vaginal
injuries is not necessarily inconsistent with being raped.
[71]
It is not without significance that most discrepancies that were
pointed out by counsel for the accused did not relate to the
rape
incidents themselves. They related to peripheral issues like who
poured brandy, the fact that N did not talk about S leaving
or trying
to leave and being turned back. The fact that S’s mother talked
about accused no.1 kneeling behind accused no.2
who was raping S from
behind. Of significance is that they both said S was at that moment
being anally penetrated between the buttocks
by accused no.2.
[72]
Also the fact that N could not remember the number of times she went
away and came back to find either one of the accused or
Z having
sexual intercourse with S in the presence of others cannot and does
not, in my view, derogate from her principal evidence
of having seen
each one of the three men having sexual intercourse with the heavily
inebriated S who did not know what was taking
place.
[73]
None of these issues, inconsistences or discrepancies affect in a
material way the credibility of N as a witness. I remain
convinced
that she told the truth as did S’s mother. If one has regards
to the fact that the room was dark where all of this
was taking place
when S’s mother arrived, the only source of light being the
torches that N and S’s mother said they
were using, the number
of people in that room which was Z, the two co-accused and S, honest
mistakes are not unimaginable. Counsel
for the State Ms Govender
referred to the case of
S v Mkohle (
unreported judgment
(639/88)
[1989] ZASCA 98
(7 September 1989). In that case Nesdat JA
had this to say:
“
13. Contradictions
per se do not lead to the rejection of a witness’s evidence. As
Nicholas J, as he then was, observed in
S
v Oosthuizen
1982 (3) SA 571
(T) at 576 B-C, they may simply be indicative of an
error. And (at 576 G-H) it is stated that not every error made by a
witness
affects his credibility; in each case the trier of fact has
to make an evaluation; taking into account such matters as the nature
of the contradictions their number and importance and their bearing
on other facts of the witness’s evidence.”
The
DNA report
[74]
It was argued on behalf of the accused that their version that they
did not rape S finds support or corroboration from the
state’s
own DNA report which excluded them. The report reads as follows:
“
BIOLOGY REPORT: DNA
LAB 531453/17; LAB
482648/17 & LAB 477207/17
GLEN GREY CAS
02/09/2017
AFFIDAVIT IN TERMS OF
SECTION 212 OF THE CRIMINAL PROCEDURE ACT, 1977 (ACT 51 OF 1977) (as
amended):
I,
LUTHANDO LUKHANYO
TIYA
, declare under oath, in accordance with Section 212
subsections (4)(a), (6)(b) and (8)(a) of the
Criminal Procedure Act,
Act
51 of 1977, (as amended) as follows:
1.
I, number
5388843-0
am a
Warrant Officer
in the South African Police Services, at
the Biology Section of the Forensic Science Laboratory, 47 Silwerboom
Avenue, Plattekloof
with telephone number 021 929 0071. I am a
Forensic analyst
and a
Reporting Officer
, and I am in
the service of the State.
2.
2(a) I am in possession
of a Bachelor of Science Degree majoring in Genetics and a Bachelor
of Science Honour’s Degree majoring
in Forensic Genetics, both
obtained at the University of the Free State. Included as part of the
above-mentioned course is molecular
and cellular biology, which is
relevant to DNA.
2(b) As of 29 March 2011,
I have been attached to the biology Section of the Forensic Science
Laboratory. Since that time I have
undergone in-house training with
reference to body fluid identification and DNA techniques, which has
afforded me the knowledge
and skills needed for forensic biological
analyses.
2(c) In total I have
approximately
twelve years’
experience in the biological
sciences.
3.
During the course of my
official duties on 2018-02-16, I received the case file pertaining to
GLEN GREY CAS 02/09/2017
from the access control location
E1-30_WR locator at the Biology Section of the Forensic Science
Laboratory.
4.
During the course of my
official duties, I established the following from the samples that
were subjected to DNA analysis system,
by a process requiring skill
in biology. The relevant results obtained via the DNA processing
system, are given below:
4.1 No DNA result was
obtained from the Condom, PA5001443683.
4.2 Not enough male DNA
was obtained from the Cervix Swab 13D1AD5994.
4.3 The donors of the
reference samples 13DBAC3640 and 16DBBZ8689 were excluded as the
donors of the DNA on the Vaginal Vault Swab
13D1AD5994 and the
Perineum/Perianal Swab 13D1AD5994.
5.
The case files and
contents were in safekeeping for the duration of the investigation
from date of receipt until completion.”
[75]
I have a number of difficulties with this submission. DNA reports are
not in and of themselves conclusive without more. It
depends on a
number of factors whether reliance can be placed on a DNA report such
as the chain evidence which would show that
a possibility of
contamination is excluded and the conditions in which the evidence of
the DNA was kept from the time it was procured
to the time of
testing. It cannot be that because the accused are excluded they
therefore did not commit the offence. By the same
token even in cases
where the results are positive and implicate the accused, if the
chain evidence is suspect and the integrity
of its handling has not
been proved to be of an acceptable standard such evidence cannot be
used against the accused.
[76]
I am fortified in this view by the sentiments expressed by Van der
Merwe AJA in
S v SB
2014 (1) SACR 66
(SCA)
in which the
learned Acting Judge of Appeal he had this to say:
“
[17] Evidence of
DNA profiling may be of great significance in a given case. It is
important, however, that evidence of DNA profiling
be viewed in a
proper perspective in each case.
[18] Evidence that the
STR profile of an accused person matches that of a sample taken at
the scene, or can be included therein,
is circumstantial evidence.
The wait therefore depends on a number of factors. These include:
(i) The establishment of
the chain evidence, ie that the respective samples were properly
taken and safe guarded until they were
tested in the laboratory.
(ii) The proper
functioning of the machines and equipment used to produce the
electropherograms.
(iii) The acceptability
of the interpretation of the electropherograms.
(iv) The probability of
such a match or inclusion in the particular circumstances.
(v) The other evidence in
this case”
[19] …
[20] ….
[22] …
[23] …
[24] This brings into
play the other evidence in a case. I cannot conceive of a criminal
case where there is absolutely no other
relevant evidence or
evidentiary material. This may range from direct eye witness evidence
implicating the accused, to circumstantial
evidence as mundane as the
proximity of the home of the accused to the scene of the crime. This
may of course also include evidence
pointing to the innocence of the
accused. In the final analysis this evidence determines whether the
guilt of the accused has been
proved beyond reasonable doubt or not.”
[77]
In this case both accused came with so improbable a version that it
is false. Accused no.1 testified that he was sleeping in
Z’s
bedroom when he was woken up from his sleep by S’s mother
stabbing him for no apparent reason. Accused no.2’s
evidence
under cross examination is that he was in the kitchen with six other
people when S’s mother entered and stabbed
him. He did not call
anyone of these persons to support his version. This in circumstances
in which his version agrees with that
of N, namely she went to call
S’s mother to come and fetch S. It is N’s version that
when she returned with S’s
mother she found all three, Z,
accused no.1 and accused no.2 with S in Z’s bedroom with
accused no.2 having sexual intercourse
with S who was crying. S’s
mother entered and stabbed all three of them in Z’s bedroom
with Z being fatally stabbed.
Even if N’s evidence was, in some
respects that of a single witness, especially as it relates to
earlier incidents of S being
sexually violated, I still find it
extremely reliable and credible.
[78]
In
Pistorius v S
2014
(2) SACR 314
(SCA) the Supreme Court of
Appeal cited with approval the case of
S v Sauls and Another
1981 (3) SA 172
(A) at p180 C-H where Diemont JA said:
“
In
R
v T
1958 (2) SA 676
(A) at 678 Ogilvie Thompson AJA said that the
cautionary remarks made in the 1932 case were equally applicable to s
256 of the
1955 Criminal Procedure Code, but that the remarks must
not be elevated to an absolute rule of law. Section 256 has now been
replaced
by
section 208
of the
Criminal Procedure Act 51 of 1977
.
This section no longer refers to “the single evidence of any
competent and credible witness”: it provides merely that
“
an accused may be
convicted on the single evidence of any competent witness”.
The absence of the word
credible is of no significance; the single witness must still be
credible, but there are, as
Wigmore
points out, “indefinite
degrees in this character we call credibility” (
Wigmore
on Evidence vol 111 para 2034 at 262). There is no rule of thumb,
test or formula to apply when it comes to a consideration of
the
credibility of the single witness (see the remarks of Rumpff JA in
S
v Webber
1971 (3) SA 754
(A) at 758). The trial judge will weigh
his evidence, will consider its merits and demerits and, having done
so, will decide whether
it is trustworthy and whether, despite the
fact that there are short comings or defects or contradictions in the
testimony, he
is satisfied that the truth has been told. The
cautionary rule referred to by De Villiers JP in 1932 may be a guide
to a right
decision but it does not mean
“
that the appeal
must succeed if any criticism, however slender of the witnesses’
evidence were well founded”
(per Schreiner JA in
R
v Nhlapho
(AD 10 November 1952) quoted in
R v Bellingham
1955 (2) SA 546
(A) at 569). It has been said more than once that the
exercise of caution must not be allowed to displace the existence of
common
sense.
The question then is not
whether there were flaws in Lenox’s evidence- it would be
remarkable if there were not in a witness
of this kind. The question
is what weight, if any, must be given to the many criticism that were
voiced by counsel in argument.”
[79]
As indicated above I am satisfied with the evidence of N, the eye
witness to the commission of this offence. Even if one were
to accept
as being well founded, the criticism made by counsel for the accused
regarding her evidence such imperfections do not
change my assessment
of her as a credible and reliable witness. In any event, as I
understand the criticism, it is not that she
contradicted herself in
anyway whatsoever, either in a statement she made to the police
against the evidence in chief as well as
when she testified under
cross examination. The criticism is that when her evidence is
compared with that of S and her mother there
are some discrepancies.
Even that considered I am satisfied that her eye witness account of
what happened that night is extremely
credible and reliable.
[80]
This brings me to the elements of this offence for which the accused
are charged. Even on this point I can do no better than
refer to the
decision of the Supreme Court of Appeal in
Otto v The State
(988/2016)
[2017] ZASCA 114
(21 September 2017) in which Plasket AJA
said:
“
[13] Rape is no
longer a common law crime. It is now an offence defined by statute,
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007
. Section 3 of the Act provides:
‘
Any person (“A”)
who unlawfully and intentionally commits an act of sexual penetration
with a complainant (“B”)
without the consent of B, is
guilty of the offence of rape.’
[14] The term sexual
penetration is defined by s 1(1) to include any act which causes
penetration to any extent whatsoever by …
(a) the genital
organs of one person into or beyond the genital organs, anus, or
month of another person.
[15] In terms of s 1(2),
consent, for purposes inter alia, of the offence created by s 3 means
‘voluntary or uncoerced agreement’.
Section 1(3) provides
that the circumstances in respect of which a complainant does not
voluntarily or without coercion agree to
an act of sexual penetration
… include, but are not limited to the situation ‘where
there is an abuse of power or
authority by A to the extent that B is
inhibited from indicating his or her unwillingness or resistance to
the sexual act, or unwillingness
to participate in such a sexual
act’.
[16] The onus rests on
the State to prove all of the elements of the offence of rape
including the absence of consent and intention.
This is so even
where, as in this case, the version put to the complainant by the
appellant’s legal representative was a
denial of any sexual
contact with her. That false version makes the State’s task a
great deal easier, as does the fact that
the appellant decided not to
testify.”
[81]
It is common cause in this matter that S was so drunk that she did
not even know what was happening to her. She testified to
having
woken up in hospital and had to be told what had happened to her.
Clearly S could not have consented to sexual intercourse
in that
condition. In any event it was never contended that she did consent
or that she could have consented. I can find no basis
for the accused
to have believed that she did consent even tacitly and it was never
contended that she could have been able to
give a tacit consent to
sexual penetration.
[82]
This brings me to the issue of sexual penetration. The accused did
not dispute that S was sexually penetrated. The J88 form
and its
findings were not contested. I cannot see why an accused person whose
defence is that he never had sexual intercourse with
the complainant
cannot contend that in any event the complainant was not penetrated
based on the available evidence tendered by
the state. Dr Tyhala’s
findings were not challenged and therefore her conclusions stand.
These conclusions corroborate the
observation of N who testified to
having witnessed S being raped by both accused and Z. S’s
mother also testified to having
seen accused no.2 having put his
penis in S’s anus.
[83]
That the complainant was sexually penetrated is, as it must be,
common cause on the facts of this case. The only issue for
determination is who committed this offence. The answer to this
question must be found in the evidence before the court taking
into
account the accounts of all witnesses for the state and the accused
persons. Having considered all the evidence the court
must determine
whether the state has discharged its onus of proving the guilt of the
accused beyond reasonable doubt as it is obliged
to do.
[84]
In restating this legal position I can do no better that refer to the
salutory and authoritative sentiments eloquently expressed
with
precision by Nugent J, as he then was, in
S v Van der Meyden
1999
(2) SA 79
(WCD)
. He said:
“
The onus of proof
in a criminal case is discharged by the state if the evidence
establishes the guilt of the accused beyond reasonable
doubt. The
corollary is that he is entitled to be acquitted if it is reasonably
possible he might be innocent. (See, for example,
R
v Difford
1937 AD 370
especially 373, 383. These are not separate and
independent tests but the expression of the same test when viewed
from opposite
perspectives. In order to convict, the evidence must
establish the guilt of the accused beyond reasonable doubt, which
will be
so only if there is at the same time no reasonable
possibility that an innocent explanation which has been put forward,
might be
true. The two are inseparable, each being the logical
corollary of the other. In which ever form the test is expressed, it
must
be satisfied upon consideration of all the evidence. A court
does not look at the evidence implicating the accused in isolation
in
order to determine whether there is proof beyond reasonable doubt and
so too does it look at the exculpatory evidence in isolation
in order
to determine whether it is reasonably possible that it might be
true.”
[85]
On the conspectus of all the evidence in this matter I have come to
the conclusion that the state has proved the guilt of the
accused
beyond reasonable doubt. The evidence of the state considered
together with that of the accused shows a misguided attempt
by the
accused to concoct a version that seeks to absolve them from taking
responsibility for their actions by giving a false version
of events.
It is clear that they, at some point, must have agreed to sexually
violate S’s dignity as a woman by striping
her naked and taking
turns to rape her while she was so drunk that she could not defend
herself from the abuse
[86]
Accordingly accused no.1 and accused no.2 are found guilty of raping
S Q as charged.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the State: C. GOVENDER
Instructed
by: NPA
MTHATHA
Counsel
for the accused: K.M. GXABA
Instructed
by: LEGAL AID BOARD
MTHATHA
Heard
on: 05 December 2018
Delivered
on: 11 December 2018