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[2006] ZANCHC 113
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S v Segapo (K/S104/05) [2006] ZANCHC 113 (3 May 2006)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case no:
K/S
104/05
Date
delivered:
03/05/2006
In
the matter between:
THE
STATE
and
STEVEN
SEGAPO
ORDER
TLALETSI,
J:
Having
read the record of the proceedings in this matter it is ordered as
follows:-
That the trial Regional Magistrate
is to provide a statement setting forth his full reasons for
convicting the accused (STEVEN SEGAPO)
of the crime of Indecent
Assault. In such statement the Regional Magistrate is to also
consider the following factors:-
No evidence was presented
regarding the respective roles played by accused number 1 and/or
his co-perpetrator in relation to the
rapes and Indecent Assault;
According to the complainant one
of the assailants was not present when the indecent assault was
perpetrated;
The evidence does not reveal which
of the two assailants raped her first and which one raped her for
the second time and indecently
assaulted her.
In what way is common purpose to
indecent assault is justified.
Why is the most adverse inference
drawn against the accused and find him guilty f indecent assault
only because he did not testify
which according to the court would
have meant taking the court onto his confidence. Was the accused
not exercising his rights
in terms of Section 35(3) of the
Constitutional Act 108 of 1996. Furthermore the accused was not
warned that should he elect
not to testify the most adverse
inference will be drawn against him.
The Regional Magistrate is called
upon to justify the following remarks and the evidence induced by
him form the complainant at
page 20 line 13 â 19 of the record of
the proceedings which reads:-
â
En
sonder nou om polities te raak, dit is ook nou so dat u is, ons kom
nou uit `n land uit met `n sekere agtergrond.
Dis
nou swart persone wat vir u as `n blanke meisie verkrag het. Hoe het
dit vir u geaffekteer? U kan eerlik wees want die Hof is,
vat nie
iemand se kant nie. Dit gaan suiwer oor hoe u gevoel het. - - -
Ek
het op daardie stadium gevoel ek is onrein.â
Mr Fourie is to obtain the
accusedâs birth certificate.
That the matter be remanded to 27
June 2006 for further trial and the accused be kept in custody
until the trial is finalised.
___________________
L
P TLALETSI
JUDGE
Northern
Cape Division