About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 203
|
|
S v Tau and Another (512/2015) [2016] ZAFSHC 203 (9 December 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 512/2015
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
THE
STATE
and
KHOTHATSO
LAWRENCE
TAU
Accused
1
THABISO
ERIC
THEKISO
Accused
2
CORAM:
BOKWA, AJ
HEARD ON:
5 DECEMBER 2016
JUDGMENT BY:
BOKWA, AJ
DELIVERED ON:
9 DECEMBER 2016
A
INTRODUCTION:
[1]
Accused no 1, Mr Khothatso Lawrence Tau and accused no 2, Mr Thabiso
Eric Thekiso stand charged with:
1.1
One count of robbery with aggravating
circumstances as defined in Section 1 of the Criminal
Procedure Act 51/1977 (CPA).
1.2
Four counts of rape, in Contravention of the
Provision of Section 3 and 14 read with Section 1, 55, 56(1), 58, 59
and 60 of the
Criminal Law Amendment Act 32/2007 (rape).
[2]
The State was represented by Advocate Giorgi, with Mr Molatedi, a
local attorney for accused no 1 and Advocate Tshabalala for
accused
no 2. The accused pleaded not guilty to all charges and denied
all the allegations against them with regard to count
1 – 5, in
terms of Section 115(1) of the Criminal Procedure Act, 51/1977
hereinafter called the Criminal Procedure Act.
[3]
At the commencement of the trial, evidence was admitted by consent of
all the parties being exhibit “A”, the photo
album,
exhibit “B” being the statement of the complainant,
exhibit “C” being the statement of M J M (the
complainant’s deceased sister) with an abridged death
certificate, exhibit “D” being the Medico-Legal Report
(J88), exhibit “E” being the Affidavit in terms of
Section 212 of the CPA (DNA analysis).
B
SUMMARY OF ORAL EVIDENCE FOR THE STATE:
[4]
Ms M M M is the victim and the complainant in respect of count 1 -5.
On 7
th
June 2013 she received a telephone call from her
boyfriend at about 20H00 in the evening, requesting her to meet up
with him at
a nearby tavern in her neighbourhood called Siwelele.
She immediately set on foot to the tavern which was not so far away
from her house at […] Section […], Botshabelo. It
was already dark in the early evening of the winter month.
[5]
Three young men approached her from the front in the opposite
direction. They immediately accosted her. All 3 young
men
held out knives. They asked her for money as they
simultaneously grabbed and searched her body. They also
instructed
her not to make any noise as they searched her. They
took her to an area of the water pipes, which is more clear from the
sketch plan in exhibit “A”. The point where they
accosted her is more depicted by photo’s no 1, 2, 3 and
5 at
point A. From this point, the suspects took the complainant to
various places where they raped her and which will be
dealt with
later. The water pipes area is depicted on photo 4, point B of
the sketch plan. According to the points
measurement point A –
B is about 100 m. At point B, which is more clear on sketch
plan and photo’s 1, 2, 4 and
5, her 3 assailants instructed her
to remove her jeans and panties. All 3 had sexual intercourse
with her by penetrating
her vagina with their penises and without her
consent. She tried to scream but nobody noticed. This was
the first point
where the complainant was raped by her 3 assailants.
[6]
From point B, the 3 suspects forced her at knife point to the area of
the lake near a dumping site. According to annexure
“A”,
the measurements from point B – C is approximately 3.1 km,
which shows a far distance between the two points.
On the
complainants’ version, she testifies that after the rape at
point B, she had to walk a long distance before the next
incident.
[7]
On arrival at point C, the dumping site near the lake, the
complainant was instructed by the same men to undress her jeans and
panties. She was asked to bend forward in a kneeling position
and was thus penetrated in her vagina and anus by all 3 assailants
whilst taking turns. In the process they told her that they
were members of the BTK gang. Her rape ordeal lasted for
a
while and when they had finished raping her at that area, she
complained that she was getting cold, which was not surprising
because of the winter season. At this stage, she had not
clearly identified who her assailants were. Point C on the
sketch plan its clearer from photographs 5, 6, 7, 8 and 11.
This is where the complainant was raped for the
second
time
by the 3 suspects.
[8]
One of her assailants phoned a friend, requesting that they come over
to the friend’s house. She was taken to house
No 3060 F
Section, Botshabelo, which is more depicted on the sketch plan point
D, photo’s no 8, 9, 10 and 11. This
photo’s
indicates the alleged house, where the complainant was raped for the
third time
by the suspects and which belonged to Tshidiso
Litsamela, the second state witness.
[9]
On arrival at that address, accused no 2 knocked at the door.
When the owner opened, a short conversation ensued where
after the
complainant, no 1, 2 and one Mzwandile Tola, who has already been
convicted and sentenced for the rape of the complainant
in this case,
entered the house. They entered the house through the kitchen and
proceeded to the lounge area. There was enough
light in the
kitchen to enable the complainant to identify the faces of her
assailants. Subsequently she was taken into a
dark room where
the two accused and Mzwandile Tola continued to raped her. When
they were finished raping her, she demanded
her cell phone and
requested the intervention of Thabiso Litsemela, the house owner,
whilst also crying. She tried to tell
Thabiso Litsemela what
was happening, however he was reluctant to assist her and rather
pressed her to resolve her dispute with
her assailants. The
attitude of Thabiso is understandable because the accused were his
friends and therefore he would have
been inclined only to assist them
rather than the complainant at the time. Inside the kitchen,
she was able to observe that
accused no 1 was wearing a blue top and
dreadlocks. No 2 had a light complexion and her 3
rd
assailant had gold teeth. Whilst she was being raped by these 3
men, she noticed a flashlight from a cell phone indicating
one of
them was taking photo’s of the rape incident. When they
were finished raping her, Thabiso Litsemela, asked them
to leave his
house. She then left in the company of no 1 and Mzwandile Tola.
[10]
From Thabiso’s house they proceed to another house, which was
later discovered as the house of no 1’s parents.
This
house is depicted more clearly on the sketch plan and on photographs
particularly point E on the sketch plan and photo’s
8, 12, 13
and 14. It is house no 2093 F Section, Botshabelo where the
victim was raped for the
fourth time
by the two suspects
namely no 1 and Mzwandile Tola.
[11]
In the morning, the complainant arrived at her house at about 9H00
according to the statement of her deceased sister, M J M,
who was the
first person who received the report of rape from the complainant.
Her statement is exhibit “C” which
was accepted by
consent. It corroborates the complainant’s version in a
material way, regarding the rape incident itself,
the various places
where it occurred, and the time of her arrival at home in her
evidence in chief.
[12]
The police were summoned to her house and she made a report of
robbery and rape to them. She could feel injuries in her
lips
as her assailants forced their penises in her mouth as well as on her
anal area. She was given tablets at the hospital.
Subsequent hereto, the police took her to various places where the
rape incident took place and ultimately the 3 suspects were
arrested.
[13]
Under cross examination on behalf of accused no 1, a version of no 1
was proffered to her, which was completely in sharp contrast
to her
evidence in chief. It was put to her by Mr Molatedi that no 1 never
raped her on that night. According to the version
of no 1 the
complainant was the girlfriend of Mzwandile Tola. On the night
in question she was at Masubeng Tavern, where
no 1 joined them.
From Masubeng Tavern the 3 had proceeded to Siwelele Tavern, where no
2 joined them after 45 minutes.
From Siwelele, they went back
to Masubeng Tavern, bought beers for take away and proceeded to
Tshidiso’s house now known
as the RDP house in photo no 10,
because Mzwandile needed accommodation to overnight with the
complainant. All of this version
she denied vehemently under cross
examination.
[14]
It was furthermore put to her by legal counsel for no 1, that she
went into the room only with Mzwandile Tola at Tshidio’s
house. She denied. She was emphatic that what actually
happened at Tshidiso’s house, was a miraculous revelation
of
the identity of her assailants in the kitchen before they took turns
raping her.
[15]
Tshidiso Litsemela resides at house no 3060 F Section, Botshabelo
more depicted on the photo plan namely photo 10. Whilst
sleeping at home in the morning of 8 June 2013, he received a call
from no 2 who claimed to be with a girlfriend and also requesting
accommodation for himself. His response was that although he
had a spare bedroom he did not have blankets. Nonetheless
it
appears from his testimony that the request by no 2 was not met with
a blunt refusal. 30 Minutes thereafter no 1 called
him, also
making a similar request to that of no 2. Shortly no 2
knocked on his door. He opened and noticed four
people being no
1, 2, Mzwandile Tola and the complainant.
[16]
Thabiso Litsemela corroborated the evidence of the complainant at the
point where she alleged that one of her assailants phoned
a friend,
where subsequently they arrived at an RDP house and which belonged to
the witness. The evidence of the complainant
is further
corroborated by Thabiso Litsemela regarding count 1 (robbery of the
cell phone). He and the complainant had a
conversation about
the complainant’s cell phone which she alleged was taken by one
of her assailants that night. On
his version the complainant
was crying looking for her phone and asking to get it back. She
was at the gate of his house.
He told her to come back the
following day if the accused did not give her the phone. Not
only is his testimony corroborative
to the evidence of the
complainant regarding count 1, it also places all 3 accused at a
place where the complainant alleges that
she was raped for the
third
time
by the 3 suspects on the night in question in terms of count
4.
[17]
He provided the accused with accommodation and later went to sleep in
his own room. He was awoken by their noise after
his own
girlfriend had complain and subsequently he instructed them to leave
although he noticed that no 2 had already left.
[18]
He learned subsequent thereto, that his house was an alleged place
for a suspected rape incident of the complainant, on Tuesday
when the
police came to his house.
[19]
Under cross examination by no 1’s legal representative he was
adamant that the complainant cried when she demanded her
phone from
the accused.
[20]
Under cross examination by Mr Tshabalala, on behalf of no 2, he was
asked if he recalled hearing a conversation between no
2 and the
complainant when no 2 would have asked the complainant for her phone
for safe keeping. His recollection was that
he could not
remember.
[21]
Obakeng Johannes Chwane
is a warrant officer in the South
African Police Services in Selosesha, Thaba Nchu. He is an
official draftsman and photographer.
He visited the crime scene
on 11
th
June 2013 where he took photographs on the open
space at address No 3060 F & 2093 F extension, Botshabelo.
He also drafted
a sketch plan with key photo’s, being exhibit
“A”. In brief, he confirmed the version of the
complainant
regarding the various places where the alleged rape took
place. He confirmed the contents of the photo album, sketch
plan
and key to photo’s.
[22]
Violet Nyakele Maleke
is attached to the South African Police
Services in a rank of a constable. On 8
th
June 2013
she was on duty and arrived at the complainant’s house where
she found the complainant and her elder sister.
The complainant
was crying as she informed her that she had been raped. The
complainant was visibly traumatized and she had
to give her enough
time to compose herself. She took the complainant to the police
station and to the hospital.
[23]
Constable Ponto Petrus Pantse
was on duty on the 9
th
June 2013 and accompanied the complainant to places where the rape
incident allegedly took place being at the pipe lines, the dumping
site, an RDP house in photo 10 and a house 2093 F Section,
Botshabelo. They discovered that no 1 stayed at this house and
also arrested him. Mzwandile Tola was arrested when no 1 took
them to his house. Tola and no 1 took the police to the
house
of no 2. He was pointed out by the complainant and arrested at
his house.
[24]
Constable Wilfred Leeuw.
On 9
th
June 2013, he
was on duty with constable Pantse and was present when no 1 and 2
were arrested. He did not hear no 2 mentioning
the cell phone
that would have been taken from the complainant because if he did so
he would have investigated the matter further
relating to charge 1.
[25]
Seotsa Paulus Mokoena
is a Chief Forensic Nurse who completed
the medico-legal report, exhibit “D”, after examining the
complainant on 8
th
June 2013 at Botshabelo Hospital at
18H40. His educational training and further academic
qualifications are elaborate and
indicative of a person experienced
in forensic nursing in the medical field. According to
Mokoena’s evidence, the clothing
condition of the complainant
was intact but dirty. The complainant alleged that she was
sexually and anally penetrated by
3 males the night before at various
places in Botshabelo. His clinical findings recorded that there
was no physical injuries
reported or observed. Furthermore, he
was able to discover with the aid of the Toluidine blue solution,
abrasions at a 6
o’clock position on the Fosssa Navicularis,
during the gynaecological examination of the complainant.
Furthermore,
abrasions in the anal area as indicated in the J88
during the examination of the complainant, also indicates forced
penetration
in the anal area.
[26]
He also observed that the cervix was bruised with a discharge
although there was no bleeding. His clinical findings was
consistent with the history of sexual penetration. It was
further common cause that the complainant was a sexually active
women
with 2 children, and her last consensual intercourse having occurred
on 1
st
June 2013 during the night with her boyfriend.
[27]
Under cross examination on behalf of no 1, Mr Molatedi asked him
about the exact time that he examined the complainant.
Initially he recorded it as 14H40 and when he was shown the original
J88 he corrected himself that the examination was at 18H40.
In
my view any contradictions emanating from his testimony were
essentially minor and he impressed the court as a witness.
The
state closed its case.
[28]
Mr Molatedi moved an application in terms of Section 174 of the CPA
on behalf of no 1 and asked the court to acquit him on
the basis that
there was no prima facie case established by the state. Mrs
Giorgi opposed the application. The court gave
a brief judgment
dismissing the application.
C
SUMMARY OF THE ORAL EVIDENCE ON BEHALF
OF
THE DEFENCE:
[29]
Accused no 1,
Khothatso Lawrence Tau,
proceeded, to testify in
his own defence that, on the night in question he was earlier in the
company of his brother, Solly Tau
at home where after he left for
Masubeng Tavern. At the tavern, he met up with a friend,
Mzwandile Tola who was in the company
of the complainant.
Mzwandile Tola has already been convicted and sentenced for the rape
of the complainant in this matter.
Mzwandile was seated with
another person wearing dreadlocks. Shortly he left the tavern
to go outside for a smoke break and
Mzwandile joined him where he
informed him that the complainant was his girlfriend. The
complainant also joined them outside
for a smoke. They went
back to have some more drinks in the tavern until 20H00 when
Mzwandile suggested that they should
go to Siwelele Tavern. On
arrival, he noticed people playing pool and decided to call accused
no 2 whom he knew as a good
pool player.
[30]
Accused no 2 arrived at Siwelele Tavern where he found the 3 of
them. No 2 asked about the complainant and no 1 clarified
that
she was Mzwandile’s girlfriend. They had drinks and
decided to go back to Masubeng Tavern and all 4 subsequently
left.
On arrival at Masubeng the tavern was closing and guards did not
allow them in. No 1 pleaded and was allowed
to buy drinks for
take away. As they left the tavern no 1 had a quarrel with a
person named Pule, resulting in no 2 intervening
to quash the quarrel
and everything was normal. He noticed that Mzwandile had a
knife because he tried to stab Pule with
it before no 2 could
intervene.
[31]
They were wondering where to enjoy the 2 beers they had bought and no
2 phoned his friend Tshidiso to inform that they are
coming with
drinks at his place and furthermore, requesting him to provide
accommodation to Mzwandile with his girlfriend for the
night.
[32]
At Tshidiso’s house no 2 knocked and they all went inside.
Inside the house there are two sofas which no 1 sat
on the one whilst
no 2 sat on the other whilst busy on his phone. Mzwandile and
the complainant went into a room whilst no
1, no 2 and Tshidiso
remain behind drinking beer. Shortly hereafter Tshidio went to
his room whilst no 1 passed out on the
sofa.
[33]
He suggested to Mzwandile that the 3 of them, complainant included
should rather go to his house and sleep there. On
arrival at
his house his brother opened the door. The complainant
complained that she was cold and hungry and he proceeded
to make food
and tea for all of them.
[34]
He used a separate room to sleep whilst the complainant and Mzwandile
shared the other room. In the morning of the 8
th
June 2013, they left for a shebeen known as Delamonong and arrived
there at 07H00 and remained there drinking until between 11H00
am and
12H00. They all left the shebeen and walked the complainant
towards her home but parted ways with her along the way.
[35]
It was put to him under cross examination by Mrs Giorgi that his
evidence in chief was riddled with material contradictions
in many
respects compared to the version that his attorney put to the
complainant. A version was put that at Masubeng Tavern
the
witness was with the complainant and Mzwandile. In chief he
mentioned that there was other people including a gentleman
wearing
dreadlocks. He struggled to defend a version that the
complainant was drinking alcohol whereas the clinical findings
in the
J88 stated that no alcohol was found on the complainant by Mokoena.
On his version, he had called no 2 to play pool
with him at Siwelele
tavern. In his evidence in chief he had called no 2 to collect
them. He failed to give a credible
explanation of these glaring
contradictions. He closed his case without leading any further
evidence.
[36]
Thabiso Eric Thekiso
is a 27 year old male who consulted with
his legal representative on 25
th
October 2016 in
preparation of the trial. On Friday 7
th
June 2013 he
receive a call from accused no 1 at past 1H00 in the morning that he
should come to Silwelele tavern to fetch them.
No 1 informed
him that he was in the company of Mzwandile and the complainant and
that they needed a place to sleep. He told
him that he knew of
a friend who lived alone who could accommodate them. He
arrived. They left Siwelele tavern and
proceeded to Masubeng
tavern. He noticed that they were drunk. Along the way
there was a quarrel which he managed to
resolve. They bought
beers at Masubeng and proceeded to Tshidiso’s place. On
arrival at Tshidiso’s house
he asked permission if the people
could sleep there. Tshidiso gave him one blanket. He
passed it to Mzwandile in the
spare bedroom. No 2 was seated on
the sofa in the lounge already passed out. As he left, he asked
the complainant to
give him her cell phone for safe keeping because
he realized that she was intoxicated. She duly complied.
He left and
returned the following day where he gave the phone to
Mzwandile.
[37]
Under cross examination he was confronted with the many
contradictions in the version put by his legal representative to the
witnesses, the contradictions in his evidence in chief and the
evidence of no 1. He was unable to defend these obvious
contradictions.
D
COMMON KNOWLEDGE AND UNDISPUTED FACTS
[38]
It is uncontested that the complainant was robbed of her cell phone
during the night of the 7
th
June 2013.
38.1 She was raped
by 3 unknown persons, the
first time
near a
gravel road at the pipe
lines. This is the area depicted more
on point B of the sketch
plan.
38.2 She was raped
the
second time
by 3 unknown men at a lake behind a hill.
This is the area depicted more on point C of the sketch plan.
38.3 The
complainant was furthermore raped by 3 unknown men
for the
third time
at house no 3060 F Section, Botshabelo
on the morning of the 8
th
June 2013. This is more depicted
more on photo’s 8,
9, 10 and 11 of the sketch plan at point D.
38.4 The
complainant was raped by 2 suspects at house no 2093 F Section,
Botshabelo for the
fourth time
on the morning of the 8
th
June 2013, which is depicted on photo’s 8, 11, 12, 13 and 14 at
point E.
38.5 The
complainant presented for medical examination on 8
th
June
2013 at Botshabelo Hospital at 18H40, where she was observed by the
Chief Forensic Nurse S P P Mokoena who documented her
physical and
gynaecological observations in the J88, and which findings concluded
that her allegations are consistent with the
history of sexual and
anal penetration.
38.6 That, Tshidiso
Litsamela resides at house no 3060 F Section, Botshabelo, where the
complainant alleges that she was raped
the
third time
and
where all the accused confirmed that they were with the complainant
on the night in question. That the complainant complained
to
Tshidiso about her phone which was taken by the accused on the night
in question.
38.7 That accused
no 2, admitted taking the cell phone of the complainant at Tshidiso’s
house though, for safe keeping
(according to his version).
38.8 That house no
2093 F Section, Botshabelo is the residence of accused no 1, a place
the complainant alleges she was raped
for the fourth time by 2
suspects.
38.9 It is further
common cause that the DNA of accused no 1 and 2 does not link them to
the sexual offences in this matter.
F
POINTS OF CONTENTION:
[39]
The identity of the 3 assailants who robbed and raped the complainant
on the night of the 7
th
June 2013 and the morning of 8
th
June 2013 is disputed.
G
ANALYSIS AND APPLICATION OF THE LAW
[40]
It is a well-established principle of law that for the state to
secure a conviction it must prove the guilt of accused persons
and
all the elements of the charge beyond reasonable doubt. It is
of vital importance for the state to adduce cogent evidence
linking
the accused to the commission of the offences as well as proving lack
of consent by the complainant in a rape case.
[41]
In
S v Van der Meyden
1999 (1) SACR 447
(W) at
448f-g, Nugent J dealt with the issue of onus in a criminal case.
He stated as follows:
“
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 it 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 --- of the other.”
[42]
It is trite that where a group of persons are involved in the
commission of a crime and it cannot be established which of them
was
the actual perpetrator, the prosecution must rely on the doctrine of
common purpose to establish criminal liability.
[43]
The principle laid out in
Mgedezi Supra and
S v
Sefatsa and others
1988 1 SA 868
(A) at 896C-E,
were
reaffirmed by the Constitutional Court in
S v Thebus and
another
2003(2) SACR 319 (CC) at 341 d-h, where the
following is,
inter alia,
said:
“
The doctrine of
common purpose dispenses with the causation requirement.
Provided the accused actively associated with the
conduct of the
perpetrators in the group that caused the death and had the required
intentions in respect of the unlawful consequence,
the accused would
be guilty of the offence …”
[44]
In
S v Van Aswegen
2001 (2) SACR 97
(SCA) the court
clearly stated that when evaluating evidence before the court, one
must look at all the evidence placed before
it. The court must
also weigh the evidence of the state and that of the accused.
[45]
It is well settled in our law that where identity is in issue, the
fallibility of human observation must be borne in mind and
the
reliability of such evidence must be tested in relation to all the
surrounding factors, such as the opportunity for observation,
visibility, the extent of the prior knowledge of the witnesses of the
accused, the mobility of the scene, suggestibility of the
witnesses,
etc. It is indeed important for the court to be alive to the
fact that such evidence could be due to mistake or
even dishonesty.
“
In S v Mthetwa
1972 (3) SA 766
(A) at 768A-D Holmes JA said the following:
Because of the
fallibility of human observation, evidence of identification is
approached by the Courts with some caution.
It is not enough
for the identifying witness to be honest: the reliability of
his observation must also be tested.
This depends on various
factors, such as lighting, visibility and eyesight; the proximity of
the witness; his opportunity for observation,
both as to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused’s
face, voice, build, gait and dress; the result of identification
parades, if any; and, of course, the evidence
by or on behalf of the
accused. The list is not exhaustive. These factors, or
such of them as are applicable in a particular
case, are not
individually decisive, but must be weighed one against the other, in
the light of the totality of the evidence, and
the probabilities; see
cases such as R v Masemang
1950 (2) SA 488
(A); R v Dladla and Others
1962 (1) SA 307
(A) at 310C; S v Mehlape
1963 (2) SA 29
(A).”
[46]
Ms M M M (the complainant), made a good impression to the court.
Her evidence was consistent and coherent. She
answered all the
questions put to her to the satisfaction of the court. She did
not try to falsely incriminated the accused
especially where she
could not identify them. It is clear from the evidence that she
was unable to identify the people who
raped her in the most brutal
manner at least on 2 occasions, being the rape at the pipe lines and
the lake behind the hill.
She was only able to do so at
Tshidiso’s house because of sufficient light in the kitchen.
[47]
The evidence of the forensic nurse, Mr Mokoena, corroborated the
complainant’s version in material respect in as far
as the J88
is concerned and in outlining her injuries during the rape. The
fact that her clothes were dirty, according to
the J88 description,
indicates that she was raped, consistently with her version of being
raped the first time at the gravel road
(water pipe lines) and at the
lake behind the hill. The genital and anal injuries indicated a
forceful penetration consistent
with intercourse without consent.
[48]
She reported the incident at a reasonable opportunity to her deceased
sister when she arrived home in the morning. She
was crying
when she made the report which is a behaviour consistent with
somebody traumatized.
[49]
All the state witnesses impressed the court. It is true that
the evidence of the complainant is a single witness regarding
the
allegations of rape.
Section 208
of the
Criminal Procedure Act
51 of 1977
provides that an accused person may be convicted of any
offence on the single evidence of any competent witness provided that
such
evidence is satisfactory in all material aspects.
[50]
In
S v Banana
2000 (2) SAR 1 (ZSC) the court
stated the following:
“
There will need to
be an evidential basis for suggesting that the evidence of the
witness may be unreliable. An evidential
basis does not include
mere suggestions by cross-examining counsel.”
“
In essence a
common sense approach should be applied regarding a single witness.”
“
Where the evidence
of the single witness is corroborated in any way which tends to
indicate that the whole story was not concocted,
the caution enjoyed
may be overcome and acceptance facilitated. But corroboration
is not essential. Any other feature
which increases the
confidence of the court in the reliability of the single witness may
also overcome the caution.”
[51]
Both the accused’s version fall significantly short and as
such, it cannot be said to be reasonably possible true.
The
evidence show that the accused acted in common purpose, their aim and
object being to rob and to rape the complainant on the
night in
question. They foresaw the possibility of their conduct causing
harm to the complainant and were reckless to the
consequences.
They were properly identified and they are the same people before
court. It is clear that the third person
who was in the company
(Mzwandile Tola), was one of the assailants who has already been
convicted.
[52]
aving regard to the evidence that has been adduced and the analysis
set out above I am satisfied that the state succeeded in
proving the
guilt of the accused beyond reasonable doubt. The evidence also
exonerates accused no 2 in respect of count 5.
H
ORDER:
[53]
In the result I make the following finding:
53.1 That accused 1 raped
and robbed the complainant on the night in question. He is
accordingly found guilty on count 1 –
5.
53.2 Accused no 2 raped
and robbed the complainant on the night in question. He is
accordingly found guilty on count 1 –
4.
53.3 I therefore reject
the accused’s version as false in so far as it is in conflict
with the state’s version.
53.4 I, therefore find
the accused guilty of rape in contravention of the provisions of
section 3 and 14 read with sections 1, 55,
56(1), 58, 59 and 60 of
the Criminal Law Amendment Act 32 of 2007, read with sections 92(2),
94, 256, 257 and 261 of the CPA 51
of 1977.
_______________
I.R.O
BOKWA, AJ
On
behalf of applicant:
Instructed
by:
On
behalf of accused 1 & 2:
Instructed
by: