S v Staggie and Another (SS131/2002) [2003] ZAWCHC 2 (28 January 2003)

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[2003] ZAWCHC 2
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S v Staggie and Another (SS131/2002) [2003] ZAWCHC 2; 2003 (1) SACR 232 (C); 2003 (1) BCLR 43 (C) (28 January 2003)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
CASE NO: SS131/2002
In
the matter between:
THE STATE
versus
RASHIED STAGGIE ACCUSED 1
RANDALL BOSCH ACCUSED 2
JUDGMENT
DELIVERED ON 28 JANUARY 2003
SARKIN,
AJ
The accused in this matter are Rashied Staggie, accused
number 1, and Randall Bosch, accused number 2. They were charged with
one
count of kidnapping and one count of rape in that, using a
firearm, they kidnapped and raped the complainant on 22 August 2001
near
Mitchells Plain, Cape Town. Accused number 1 was additionally
charged with one count of transgressing Article 2 of Act 75 of 1969.
After
both pleaded not guilty, an interlocutory application was brought by
the State for the evidence of the complainant to be given
in camera
and via closed circuit television. This was granted, the reasons for
the first application that the complainant testifies
in camera, and
via closed-circuit television, but that the press could be present
was the subject of an earlier extensive judgement.
The
complainant in this case, Ms K, then testified in accordance with the
above order. She testified that she was 19 years old, married
and had
a daughter who was almost 3 years old. She had grown up in Manenberg
and her formal education was limited. She had not progressed
further
than standard 3. She was the fifth child in a family of 8 children.
She
testified that the dominant gangs in the areas where she grew up were
the Hard Livings, the Americans and the Jesters. Accused
one, Rashied
Staggie was known to her as leader of the Hard Livings gang. Her
older brother, Christopher, and brother-in-law, Cyril
and another
relation Randall, were members of the Hard Livings gang. She knew
Randall Bosch, accused two, as a member of the Hard
Livings gang.
Most of the time the Hard Livings and the Americans gangs fought each
other.
She
stated that she knew Rashied Staggie well and that he was a frequent
visitor at their home, but that when he visited he did not
go inside.
She stated that he had been to the flat where she lived to bring
bullets and a gun for her brother-in-law to use in a
gang fight
between the Hard Livings and the Americans. She could not remember
when exactly this incident took place. She had also
seen accused one
at meetings of the Hard Livings gang. These meetings used to take
place in various places in Manenberg, and particularly
at a place
called the ‘hok’ which lay near a block of flats in the vicinity.
This place was usually used for gang meetings. She
had attended at
least two meetings with her brother in law.
The
complainant became concerned about her small daughter growing up in
this atmosphere and approached a policeman by the name of
Fahiem
Jacobs for assistance. She made a request for assistance to him after
her flat had been searched by a group of policeman which
included the
aforesaid Jacobs looking for stolen items and illegal firearms.
The
complainant was aware that her brother possessed a “zipgun” and
bullets and told Jacobs that she had information regarding
firearms.
She told him about the gun possessed by her brother and that it was
hidden in the warmer drawer of the oven and the bullets
amongst her
child’s nappies.
In
the early evening the police returned and searched the flat again.
Both the firearm and bullets were found, and her brother was
arrested. He and her brother-in-law were in the flat at the time of
the search.
The
brother was released from custody the next day. She testified that he
made no court appearance regarding the case and he was not
prosecuted
regarding the possession of the zipgun. She did not know why this was
so, she only heard that it was because only one
bullet had been
seized. The evidence of the finding of the zip gun was supported by
her brother, Christopher, who testified later
in the trial. He
testified that it was his gun and he had pleaded guilty in court to
the possession of this gun.
The
complainant testified further that a few months later she heard that
the Hard Livings gang possessed a firearm which was being
kept at the
home of a friend who was a member of the gang. She saw a policeman,
Fahiem Jacobs, in the street and told him about the
firearm.
The
house was searched but the firearm was not initially found. She then
informed Jacobs that the firearm had been hidden behind a
woman
called Fazlin, in the clothes Fazlin was wearing. As there were no
policewomen present to search the women the complainant
and Fazlin
were instructed to search each other. The complainant retrieved the
firearm and handed it to Fahiem Jacobs whereupon both
she and Fazlin
were arrested and taken to Nyanga Junction police station. The
complainant was also arrested to avoid suspicion. The
complainant was
released the following day, but Fazlin was charged for the illegal
possession of the firearm.
The
complainant stated that she subsequently went to see Jacobs at the
Manenberg police station and expressed her concerns regarding
information being leaked by the police to the Hard Livings gang.
Members of the Hard Livings gang had informed her that she had
provided
information to the police regarding the firearm recovered
from Fazlin. Fahiem Jacobs then told her to see a person called
Charlotte
who was a member of the SAPS and was sitting in a vehicle
outside the police station.
The
complainant subsequently gave information to Charlotte on more than
one occasion and received payment for this information. They
usually
met twice a week. The complainant was not employed at the time but
informed her family that she was working as a char for
a white woman,
so as to avert suspicion. This continued for a month or two prior to
the incident in question.
The
complainant testified further that she had a woman friend Des. Des
was married to a man who was a member of the Americans gang.
He used
to beat her up and at one time he assaulted her, and as a result she
had had a miscarriage. Des would come to talk to the
complainant
about the problems with her husband. The complainant offered to help
her, and suggested that she should give information
to Charlotte,
about his gang activity, and about guns so that her husband would be
arrested and put in jail. She agreed and the complainant
took Des to
see Charlotte on Tuesday, 21 August 2001. Des talked to the police in
the vehicle that Charlotte was in.
On the day of the alleged rape incident, Wednesday 22
August 2001, the complainant testified that she was in her home when
she saw
Des standing near the driver’s window of a white motor
vehicle at about mid day. Rashied Staggie, accused one, was seated in
the
motor vehicle. Although the windows were tinted the driver’s
window had been rolled down enabling her to see accused one.
The
complainant thought it strange to see Des talking to accused one. She
then saw Des walk away and accused one drove away. The complainant
then decided that she would visit a friend called Nazli who lived
nearby to retrieve a blouse that belonged to her. Nazli was not
at
home. On her way back to her flat the complainant bumped into Des who
would not speak to her and said she was a traitor. The complainant
observed that Des had money in her hand as well as an ‘outfit’
which consists of a quantity of dagga and a mandrax tablet. The
complainant suspected that the drugs and money had been obtained from
accused one, as accused one had on occasion given money to
people.
The complainant herself had on occasion received R20, 00 from him.
The
complainant returned to her flat, but left again for Nazli’s home
after the television soap opera ‘Days of Our Lives’ began.
Before
reaching Nazli’s home, however, the complainant came across one
Nico who went by the nickname of ‘Muis’. He was a member
of the
Hard Livings gang. The complainant asked ‘Muis’ if he had spoken
to Des. He replied, however that he did not have time
for traitors.
The complainant thought at that time that he must have spoken to Des
who knew that she was a police informant. Although
‘Muis’ walked
away from the complainant she followed him and asked for a cigarette
as she wished to speak to him. ‘Muis’
told her that he did not
give cigarettes to traitors. The complainant nevertheless followed
him to the ‘hok’ where he bought
2 ‘outfits.’ He then went to
his home. The complainant knocked on the door and then entered.
After passing one ‘Barcelona’
coming out of ‘Muis’s’ room
she entered ‘Muis’s room. In the room she saw ‘Muis’ and Des
both of whom were smoking.
At that time the complainant realized that
she had been exposed as a police informant and left. No one greeted
her but she thought
someone might have said something about a
traitor.
After
once again checking to see if Nazli was at home she walked home. On
arriving at her building she noticed that accused one’s
car was
parked in front of their gate. It was still light at this stage and
her brother-in-law Cyril was speaking to accused one.
The complainant
turned around and walked around the corner as she did not wish to see
him. She knew it was accused one because she
recognised the motor
vehicle. She identified it as the motor vehicle in Exhibit ‘A’
and that it belonged to Rashied Staggie,
accused one.
After
loitering around the corner for a while the complainant started to
walk back. As she did so accused one drew up alongside her
in his
motor vehicle. The driver’s window was partially rolled down and
accused one told her that he wished to see her and told
her to meet
him at a place behind Pam Court and Olga Court that evening, although
the complainant could not remember the specific
time. The complainant
never questioned accused one regarding the reason for the meeting as
she did not wish to make him suspicious.
The complainant then went
home.
After
two friends visited her the complainant walked out with them. As she
was coming around in the vicinity of Olga Court she noticed
accused
one’s motor vehicle again and walked in the direction of the motor
vehicle. Randall Bosch and two other men were in the
vehicle. The
complainant asked what the two men were doing in the motor vehicle.
Accused one, Rashied Staggie, told her to shut up
and get in the car.
The complainant refused, whereupon accused one threatened to kick her
in her private parts.
Accused
one told accused two, who was sitting on the front seat to sit in the
back. The complainant knew accused two as he was a member
of the Hard
Livings gang and was friendly with her brother-in-law.
The
complainant then got into the front passenger seat.
Accused
one then drove the vehicle passed Nyanga Junction and in the
direction of Mitchell’s Plain. It was now dark and accused
one
parked the car near a tree along a stretch of road that was
surrounded by sand and was not busy. Accused two and the two other
men climbed out of the vehicle and smoked a combination of dagga and
mandrax. Accused one told her that he had lost trust in her
and to
restore this trust she must have sex with accused two and the other
two men. The complainant refused to do this whereupon
accused one
took out a firearm from the cubby hole. The car light was on and the
back door was open behind her.
Accused
one moved the firearm against her right leg and the complainant
testified that she knew that something was going to be done
to her,
and thought that she was going to die. Accused one told her to climb
into the back seat of the vehicle. She did this and
was told to take
her clothes off. She refused to do this. Accused one sat in the
drivers seat with the firearm resting on his left
knee.
Accused
two then came to the open car door and told her to take her clothes
off and grabbed her skirt. The complainant then told him
she would
take her clothes off herself, and took off her skirt and panties and
placed them on top of the back seat. Accused two grabbed
her right
leg and tried to push her down. The complainant lay down on the back
seat with her head on the arm rest of the back door
on the driver’s
side. Accused two then climbed into the vehicle and had sexual
intercourse with her. He hurt her and she pushed
his chest and told
him to get off her. She was crying and asked him why he was doing
this and he told her to shut up. The complainant
saw that accused one
was watching them in the rear view mirror. The other two males then
also had sexual intercourse with her. The
third male whispered to her
that he did not want to do it but did not have a choice.
The
complainant testified that none of the men had ejaculated in her and
that after each man had raped her, he wiped his penis off
on a rag
with black oily marks on it.
The
complainant testified that she did not give any of the men permission
to have sexual intercourse with her.
The
complainant then put her clothes back on and was told by accused one
to climb back into the front passenger seat. He threatened
her that
if she told anyone about the incident she would be dead within a
week. She testified that she thought he meant it.
Accused
one then drove back the way they had come. The complainant testified
that she was very shocked and cried continuously. She
could however
remember that accused one said that he wanted to see her again within
the week. She thought that she was dropped of
at the place where she
had been picked up but she could not really remember and she had
walked home.
She
could not remember what time she arrived home but some people in the
house were still awake. She spoke to nobody but bathed and
went to
sleep. She did not tell her mother about the incident because she was
afraid that her mother would accost accused one and
that he would
then know she had spoken about the incident and would kill her.
The
following day the complainant went to meet Charlotte as usual as it
was a Thursday. Charlotte sensed something was wrong and asked
the
complainant if there was a problem. The complainant, Charlotte and a
policeman with the name of Chris were in the vehicle. Charlotte
told
Chris to leave the vehicle. When the complainant was alone with
Charlotte in the vehicle she started to cry and told Charlotte
about
the incident. Charlotte undertook to help her and after leaving the
complainant at the Grand Parade in Cape Town went to fetch
another
policeman by the name of Clint. Clint told the complainant that if
she made a case she would receive protection.
The
complainant then decided to press charges and she was taken to the
Bellville-South police station where she made a statement.
The
complainant was then taken into the Witness Protection Programme.
Later she was taken to a doctor for a medical examination.
At
this point in the proceedings the court adjourned to go on an
inspection in loco and formal admissions regarding this inspection
were recorded and handed in as Exhibit ‘B’ after that inspection.
The
complainant also identified the photographs taken during the
inspection in loco and they were handed in as Exhibit ‘E’.
The
complainant stated that she had described the scene where the
incident had occurred, even though it was dark. She had gone with
the
Investigating Officer, Inspector van Sitters, after she had made a
statement at the police station, but as it was raining and
he was
driving fast she could not point out the scene in question. On the
inspection in loco the complainant could not point out
the exact spot
as she testified that new buildings had been built, trees had been
cut down and the area was very different to that
which it had been
more than a year previously.
The
complainant testified that she had never seen the two other men who
raped her, in addition to accused two, before, but had assisted
the
police in drawing up identikits which were handed in as Exhibits ‘C’
and ‘D’.
It was put to the complainant in cross examination that she had made
a practice of making rape charges, for financial benefit from
her
earliest years, and that this was her
modus videndi
and that
she was not raped and her allegations were false. This was vehemently
denied by the complainant.
She
admitted to having occasionally run away from home when she was
younger as a result of her eldest brother assaulting her and sexually
molesting her. She stated that she wished to get her brother and
brother-in-law out of the house, as it was as a result of gang
fighting
between the Hard Livings and Americans that a bullet was
fired into her flat which narrowly missed her child.
The
complainant informed the court that all four of the girls in the
family had been sexually molested by her father and that he had
received a seven year jail sentence for raping one of her sisters.
She stated that she had been told that she had been molested by
her
father when she was a baby and that he had molested her again when
she was at school.
She
related that on one occasion when she had left home her brother
Christopher and a person by the name of Geronimo had found them
at
Cape Town station. She had called the police and encouraged her
friend, Eva, to lay a charge of rape against her brother regarding
a
rape, which had taken place in her presence. She testified that she
had told the police that the two men had knives and were trying
to
grab her. The police had confiscated the knives and arrested them for
possessing dangerous weapons. She said that her mother had
threatened
her friend, so as to withdraw the case, because she did not want her
son to go to jail. It was put to her that the rape
of her friend Eva,
which she had described, was a figment of her imagination and had
never happened. The witness denied this very
strongly and repeated
that it had occurred.
The
complainant testified that accused two, Randall Bosch, had been to
her house frequently, even before her baby was born and before
he
went to jail in 1999. He apparently used to smoke (dagga) with her
brother Christopher. She testified that accused one, Rashied
Staggie,
had come to their house on various occasions but did not go inside.
While the complainant at one point averred that Rashied
Staggie gave
guns to her brother she denied this at another time.
The
statement made by the complainant on the laying of the charges
against the accused was identified by her and handed up as Exhibit
‘F’.
The
complainant was questioned about the statement but no material
deviances from her statement were elicited.
Defence
counsel put to the witness that the rape was a conspiracy by the
police to put Rashied Staggie in jail and for her to gain
financially. This was again strongly denied by the complainant. She
did concede that her material circumstances were better than
before,
now that she was in the Witness Protection Programme, but that in
other respects she had lost everything, and would rather
go back to
her mother if she could and nothing could make up for the loss of her
family.
The
witness explained that she had not told her mother about the present
rape as she was afraid her mother might do something drastic
such as
kill Rashied Staggie.
Defence
counsel made much of the fact that the complainant used the word
“sex” in her statement instead of the word “rape”.

Complainant adequately explained, however, that she clearly meant sex
without consent which as far as she was concerned meant the
same
thing as rape and the word sex was used in that context.
The
complainant initially informed the court that she had left school
over an incident which happened in the school toilets but which
she
could not really remember.
The
complainant, over a week-end, whilst still undergoing
cross-examination in this matter, tried to commit suicide by taking
an overdose.
The
complainant returned to court to a few days later. She explained that
she could not sleep at night and was plagued by nightmares
in which
she was shot and stabbed and raped. She also dreamt about her
daughter being raped. All of this had led to her suicide
attempt.
The
complainant then went on to describe the incident which happened at
school when it appeared that she was between the ages of 10
and 13
years old and which lead to her leaving the school. She had been
asked about these events before but she did not bring this
out
earlier. The complainant testified that at that time she had been
raped by the father of her friend, Belinda. The complainant
had been
teased in the classroom by a boy about the rape case and she had hit
him. She had then become hot, dizzy and faint and had
gone to the
toilets. She began to see herself strangely in a mirror and appeared
to have had a collapse of some sort. She stated
that when she opened
her eyes she was lying on a bed in the sick room. She testified that
she woke up and rose up off the bed in
an elevated fashion. She saw
herself in the air and spoke to an Imam who had been called in a
foreign language and not in her own
voice. She testified also about
red eyes, blue hands, and having the strength of many people which
she had used to push away people
who were holding her down.
She
described further her dreams she had whilst being in the Witness
Protection Programme. She said that she was desperately lonely
and
just sat in the house and cried. She described how she saw things.
One of the things she saw was a creature with a tail like
a
tokoloshe. She related how she had been unable to sleep and had been
plagued all night by thoughts of this creature and thought
that the
best way out was to end it all.
She
denied that she believed in tokoloshes and that when she had
described her dream to her sister, the latter had suggested that
the
creature was a tokoloshe.
The
complainant was cross-examined by counsel for accused one. She
restated the events of rape as she said the incident occurred,
as she
had done on chief examination.
She
said that she was shocked when she was given the R1 800. 00 for
information, she had given, by Charlotte, her police handler.
She
stated however that the money she was given by the police had nothing
to do with her laying the rape charges.
She
stated that the two other men who raped her, in addition to accused
two, looked like “charras” from Durban. She explained
that they
were not Indian, but darker than people in her community so it looked
like they came from Durban.
The
complainant was cross-examined rigorously and aggressively for many
days by counsel for accused one and two. Despite this intensive
questioning, her evidence about the rape was repeated again and again
and she remained consistent throughout as far as the rapes
were
concerned.
The issue of the complainant not telling her mother the next day
about the rape was raised so as to throw doubt on the story of the
complainant. However, firstly from the evidence we know that the
mother did not believe the complainant in the past about a rape
case
involving Eva. As was also stated by
Susan
Stefan in “The Protection Racket: Rape Trauma Syndrome, Psychiatric
Labeling And Law in Northwestern University Law Review
(Summer 1994)
at 1271
Non reporting of a rape must be
seen at times “in terms of the likelihood of disbelief by police,
retaliation by the rapist, hostility
of family and support network.”
(1333)
This
statement is highly appropriate for this particular case.
One
issue that did come out in cross examination was that she was so
scared after Mr Staggie told her to meet him that evening that
she
tried to contact her other police handler Clint. She phoned him but
he was not interested in talking to her. This omission was
of little
significance and can be understood when nothing had been said between
the parties. It is however surprising that when an
informer phones
her police handler at considerable risk, especially when this is an
unusual occurrence, that the handler shows little
interest and says
he is busy. Informers who act outside of their routine meeting and
contact times must be in dire circumstances
and this call ought to
have been treated with far more care and urgency.
The
complainant’s version of the rapes and events leading up to the
rape were logical and coherent and contained no inherent
improbabilities.
The one problematic bit of evidence was the amount
of times that accused two had come to her house. That he did come to
her house
on at least one occasion was supported by the evidence of
her mother. How many times he had come to the flat was however
disputed.
There
does not appear to be any reason in her evidence, besides the issue
of a possible conspiracy, and that she did it for money,
as averred
by defence counsel, as to why she would falsely implicate either Mr
Staggie or Mr Bosch.
It
does not appear that the complainant was personally involved with
either of them. There does not appear from her evidence to be
any
other reason for the complainant to have laid false charges. In fact
the complainant is now unable to return to the Cape, and
has been
separated from her mother to whom she appears to be closely attached.
In view of the reputation of accused one it would
in fact appear that
there in fact was a strong disincentive to lay a charge of rape
against him. The allegations that money and a
police conspiracy was
the reason for the charges had no foundation and no evidence of this
was led.
While
there were some minor contradictions in the complainant’s evidence
nothing was of material significance. The complainant was
seen to be
a credible, reliable witness whose demeanour, which at many times was
angry, upset, and emotional, was consistent with
her version of
events that the rapes had occurred.
The
next witness that was heard by the court was the complainant’s
sister R. She began her testimony while the complainant was in
hospital recovering from her attempted suicide.
Before
this witness was heard the state applied for her evidence also to be
heard in camera, for various reasons including possible
danger to
her. The Investigating Officer, Captain Jansen testified that her
evidence was necessary, that she was frightened, was
in danger, was
on the Witness Protection Programme, and that she was fearful of
testifying in open court. The court granted the application
on that
evidence as it was clear that there were grounds for accepting that
greater exposure to the public, and hence members of
the Hard Livings
gang, could increase the chances of her being intimidated in court,
for example by way of threatening gestures.
Section
153 of the Criminal Procedure Act was relevant to the issues before
the court. Section 153(1) provides that a court can close
the court
if it appears that it would be in the interests of the administration
of justice. Witnesses must be able to testify without
fear, and thus
it must be in the interests of the administration of justice that
witnesses that may be intimidated be able to testify
in a conducive
atmosphere.
As
noted in the earlier judgement in the matter of in camera proceedings
and testimony by closed circuit television, with respect
to the
evidence of the complainant, the effect of a closed court room on an
accused is minimal, especially when the press report
on a case daily.
The
sister of the complainant, Ms R, testified that she was on the
Witness Protection Programme and that she was the older sister
of the
complainant. The witness stated that she was a 25 year old and
married with three children. She described how at the time
of the
incident she was residing with her extended family in a flat
consisting of 2 bedrooms, sitting room, kitchen and bathroom.
In
addition to herself, her husband and three children, various other
family members resided in the flat including her mother, three
brothers, a sister and the complainant and her child.
She
testified that her husband, Cyril, was a member of the Hard Livings
gang, but that he suffered from TB, and that he received a
disability
pension of R650.00 per month. She used to sell fruit and vegetables
at a stall outside the flat to supplement her husband’s
pension.
She
confirmed that she had believed that her sister, the complainant, had
been working as a char approximately twice a week at the
time of the
incident and that she had brought money home as a result of this
work.
The
witness was asked if she had operated her fruit and vegetable stall
outside her home on 22 August 2002 and she confirmed that
she had
done so. She then stated, however, that she had not seen the
complainant that day and did not know where said complainant
was on
that day. She stated that she knew who Des was, but had not seen her
that day either. When she was asked whether anything
had happened on
that day she replied in the negative.
She
stated that she had seen accused one, Rashied Staggie, driving past
her in a white motor vehicle. A person who was not before
court had
accompanied him. She testified that in fact accused one had driven
passed her home twice. On the second occasion her husband,
Cyril, had
approached the vehicle which had stopped, and had spoken to accused
one. Her husband had then informed her that he had
sought money, and
that accused one had told him to go to the hok. This was the place
where meetings were held although it was now
a church.
That
evening, however, instead of going to the ‘hok’ she had gone with
her husband to one ‘Dimpa’ who was also a member of
the Hard
Livings gang in order to borrow money. The fruit and vegetable stall
was packed up at approximately 7.00 pm, and they left
for Dimpa after
first having had a cup of tea in the flat. When she had come back
from ‘Dimpa’ she had not seen the complainant
in the flat. After
eating she had gone to bed. Her bedroom was in fact the sitting room
and the complainant usually slept in her
mother’s bedroom. She
could not see whether the complainant was already asleep or not. She
added that she thought that the 22
August 2001 was a Tuesday or a
Wednesday.
The
witness testified that the next morning she saw the complainant. The
latter had told her that she was going to work and had left
the flat
alone. She did not see the complainant that day again or on the next
day.
The
witness then identified the motor vehicle in Exhibit ‘A’ as the
one belonging to accused one. The witness stated that Des
was a
friend of both her and the complainant and occasionally visited their
flat. Des and a person, Shahieda, sometimes smoked mandrax
with her
brother Christopher.
Des’s
husband was a member of the Americans gang and she was not liked by
the Hard Livings gang. She had not seen Des talking to
a member of
the Hard Livings gang or to either of the accused before court.
The
State then produced a sworn statement made by the witness and
informed the court that if the witness could not provide a
satisfactory
explanation for deviating from the statement she was
going to request that the witness be declared a hostile witness.
The
witness then confirmed that the statement in question had been made
by her to Inspector van Sitters, then the Investigating officer,
on
26 September 2001 at the Bellville South police station.
Counsel
for the State then proceeded to read out the witness’ statement to
her. The witness agreed with the contents of the statement
and went
on to describe how on a day in that week when the complainant had
been preparing to go to work Des and Shahieda had arrived
with a half
a mandrax tablet and had smoked it. Then Des and the complainant had
left together. Shahieda had waited at the fruit
and vegetable stall.
The complainant had returned before midday but Des did not return.
The witness was unsure on what day that it
had occurred. She first
stated that it had occurred on the Wednesday.
When
confronted with the apparent contradiction between her statement and
original oral testimony the witness apologised to the court
and
stated that her statement had been correctly recorded and that she
had become confused between the day of the incident and the
day prior
to that.
She
testified that the complainant had left for work with Des. She was
however unclear as to whether she had seen Mr Staggie on the
same day
or on the next day by her house in his white motor vehicle. Counsel
for the state then abandoned her intention to request
that the
witness be declared a hostile witness.
Cross-examination
of this witness then occurred. The witness stated that she had heard
about the complainant having been abused when
a child but had not
personally witnessed this. The witness, with some reluctance, then
admitted to having been sexually abused by
her stepfather, the
complainant’s biological father.
When
asked why the complainant had left school in standard three the
witness explained that the complainant had become sick one day
at
school and that some school children had made fun of her and had
teased her about the tokoloshe. The witness had not seen what
happened but had heard stories, as she had attended the same school
as her sister, but had dismissed it as childish gossip.
The
complainant had been admitted to another school but had left that
school too. She did not know why she had left the school, but
then
she herself had not always stayed with her mother as she had
sometimes stayed with her aunt in Mitchells Plain.
The
witness confirmed that the name of the person the complainant had
charred for was a person called Charlotte.
She
stated that when she and her husband had returned from ‘Dimpa,’
on the Wednesday night in question only the kitchen and back
bedroom
lights were on. She spoke to nobody and went straight to bed after
she had eaten. She added that her husband did not get
on with her
family and that she tried to keep to herself and tried not let
problems arise between her husband and her family.
She
confirmed that the complainant was at least verbally abused by her
brother Christopher and that the complainant had on occasion
run away
from home and stayed with a woman in Woodstock or checked into a
hostel for ‘brown’ children as she put it.
She
described the complainant as a person who loved netball, music, and
friends and had modelled.
She
stated that she had observed accused one in his vehicle between 5:00
pm and 6:00 pm. She knew this because “Days of our Lives”
was on
as her husband enjoyed watching this particular soap opera on
television.
She
said that after the complainant had come back from work at about
midday she had gone looking for money, and that she had not seen
her
again after that.
The
witness was then cross-examined by counsel for accused two. She
stated that she could not believe that the complainant would make
an
arrangement with the police to have her husband and brother arrested
regarding the gang fights.
She
confirmed that the police had come looking for things at her flat,
but mentioned computers, and that Fahiem Jacobs had been one
of the
police officers.
She
also confirmed that the policemen had returned looking for firearms,
but that none were found nor were any arrests made. She did
however
add that sometimes she was not at home.
She
stated that she had seen accused two at the ‘gat’ at meetings and
had also seen accused one many times walking up and down
her street.
The
witness supported the complainant’s testimony that Des had problems
with the Hard Livings gang and that she was blamed for her
husband’s
killing of a member of the Hard Livings gang.
The
witness denied that she had entered the Witness Protection Programme
to escape a bad marriage. She also stated that she had little
knowledge of the case against her brother Christopher and the other
person, but thought that it had been for possession of dangerous
weapons. She described her sister as being a person very unlike a
prostitute, and one who dressed respectably. She also said that
she
would never be able to return to the Cape because of her testimony.
Nothing further of any real significance was elicited in
cross-examination.
The
witness corroborated the evidence of the complainant in a material
respect in that accused one was observed driving a white motor
vehicle in the road by their flat, that he had stopped the motor
vehicle at a point not far from where the witness had had her fruit
and vegetable stall early in the evening, although she was unclear as
to whether it had occurred on the Tuesday or the Wednesday.
While the
complainant testified to having seen Des at the car it is clear that
the complainant was testifying to the time near noon
that she saw the
car, while the sister’s evidence was that she had seen the car on a
different occasion, at between 5pm and 6pm.
The
witness also corroborated the complainant regarding the search of
their home by the police, but denied that any weapons were found
or
that arrests were made.
It
is not clear why the complainant and witness differ regarding this
aspect. This aspect is not material however to the issues to
be
decided in this case, and could quite possibly be the result of a
failure of memory on the part of the witness or that she was
testifying about a different occasion.
The
witness did not appear to have been a confidante of the complainant
or to have paid close attention to the complainant’s personal
life
and could not assist the court any further.
The
next witness to be heard was that of the complainant’s police
handler, Charlotte. Before her evidence was heard the third
application
for in camera proceedings was brought by the State. Once
again the Investigating Officer, Captain Jansen, outlined the
circumstances
relevant to the necessity of allowing this testimony to
be given in camera. Captain Jansen described the work of this
individual
in working with informers in Manenberg and why her
identity ought to be kept secret by her being allowed to testify in
camera. The
fact that she, as well as the people she works with would
be in danger, if her identity was released or made known, as well as
the
fact that her testimony about police informers and police
procedure would fall within the strictures of the interests of the
administration
justice provision of the Criminal Procedure Act,
section 153(1), saw this application being granted by the Court as
well as for her
identity to remain hidden.
Charlotte
testified about the events which saw the complainant becoming an
informer and about the complainant’s report to her of
the alleged
rape. She testified that the first report of the rape by the
complainant was made to her.
Charlotte
testified that she had known the complainant for a couple of months
in 2001. She was out on police business when Ms K approached
her. The
complainant had said that she was referred to her by somebody in the
Manenberg police station. She testified that the complainant
had
become an informer and that her cover was that she was doing char
work for her two days a week.
On
23 August 2001, they had a pre-arranged appointment, and she had
observed that the complainant was not her usual self. As they
drove
in her vehicle she tried to find out what was wrong but the
complainant cried and said no one could help her and that she was
as
good as dead. Charlotte testified that she had asked her male
colleague, who was also in the car to get out, and she then spoke
to
Ms K in private. Ms K then related the whole story about how the
alleged rapes had occurred.
Charlotte
stated that she was informed that on the previous day, 22 August 2001
accused one had ordered her, the complainant, to meet
him at 8:00pm
at Olga Court, Manenberg. The complainant had met him there and
noticed he was accompanied by three persons, one of
whom was accused
two, Randall Bosch. She was ordered by accused one to get into the
motor vehicle or otherwise he would kick her
in her private parts.
They drove in the direction of Strandfontein. En route accused one
accused her of being a traitor. They stopped
at a deserted place. It
was dark and there the three men who accompanied accused one, climbed
out of the vehicle. They were given
rocks (apparently drugs of some
sort) to smoke by accused one which they then smoked.
The
witness testified that she was told that accused one then said to the
complainant that she must show that she is not a traitor
by having
sex with the three men. She had refused to do this. Accused one then
brought out a firearm and told her to sit on the backseat.
She was
very afraid and did what he said. He told her to remove her clothes,
which she did out of fear. Accused two then raped her.
After two
raped her, he said: “die ding naai lekker”. The other two men
then raped her. The witness testified that she had
been told that the
last male had said to Ms K that he was sorry, but he did not have a
choice. Accused one then said that if she
told anyone he would kill
her and they dropped her off.
Charlotte
testified that after this had been told to her she had told Ms K that
a crime had been committed against her and that she
had the right to
lay charges. Ms K said that she was afraid that she would be killed
if she reported the matter to the police. Charlotte
promised that the
police would protect her but she did not discuss the details of the
protection with Ms K.
Charlotte
dropped her off at the Parade in Cape Town and proceeded to go her
office in the city to discuss the matter with her Commander.
After
some time she went back to Ms K and she told her what the protection
entailed, and that she could be put in the Witness Protection
Programme if she laid charges. Ms K agreed and Charlotte then took
her to Bellville-South police station. She was not there when
the
statement was taken. She was phoned when the police were ready to go
with Ms K to point out the scene where the rape was supposed
to have
occurred. She accompanied them, but Ms K could not find the place.
Asked
if she knew Des, Charlotte said she had seen her with Ms K, but she
did not have conversation with her, as Des had talked with
her
colleague, while she had pretended to be a social worker. She did
overhear the conversation about Des’s problems, and stated
that it
took about two to three hours.
As
far as payment to Ms K was concerned Charlotte testified that she had
made payment of an amount of R500, 00 to Ms K when she became
an
informer and another amount of R1800, 00 was given to Ms K before she
went into the Witness Protection Programme. The amount of
R1800, 00
was payment for two months of information, and the claim for the
amount was made on 15 August 2001, in other words, some
days before
the alleged rape incident occurred. She also testified that Ms K was
of great value to her as an informant and when her
cover was blown it
was a great loss to her.
In
cross examination Charlotte did not contradict the version of events
or of the rape that she had given in her evidence. She said
that
after the complainant told her about the incident, she had told the
complainant about her rights, and what the police could
to protect
her if she chose to exercise these rights, and that it was her
decision to lay a charge. Her enquiries about what was
wrong with her
were precipitated by the fact that she could see that the complainant
was not her usual self. She had concluded on
her own that Des had
informed accused number one about the fact that Ms K was giving
information.
When
asked by defence counsel whether the charges were a conspiracy, and
that such a charge was trumped up as a gang rape because
of the
minimum sentences legislation, she testified that she did not know
anything about a conspiracy or the minimum sentences legislation
and
what penalties it entailed. She also testified that she made notes of
what Ms K had told her about the alleged rape as she spoke,
and then
prepared her statement afterwards in September 2001 and kept it on
her computer.
She
testified that she did not know about Ms K's history with respect to
her experience in school, her disappearances and sexual abuse
by her
farther.
It
was put to her that her statement was not available in the bail
application and that the then Investigating Officer, Inspector
van
Sitters, testified that it was with the legal advisors. Charlotte
said that she drafted her own statement on 15 September 2002
on her
computer, but signed it only in November 2001. She testified that she
gave it to Captain Jansen, who took over as Investigating
Officer in
August 2002, only in September 2002 and never gave it to anyone else.
The
evidence of Charlotte was consistent in cross examination and
confirms the evidence of the complainant in material respects.
Charlotte
remembered some more, about what happened at the rape
scene, including utterances that were made by the alleged rapists.
The
issue of the payments made to Ms K was focused on extensively by
defence counsel since the last payment was made to the complainant
after she had made a statement to the police about the rapes.
Defence
counsel argued that it appeared as if it was payment for making the
case, alleging that the rape was a fabrication. The payments
were
explained by Charlotte in that the amount paid was for a two month
period and that the full amount was requisitioned on 15 August
2001
for payment the following week. She produced official police receipts
in this regard marked as Exhibit ‘G3’. Entries in
her diary
showed that the payment was requisitioned long before the alleged
rape. These pages were handed in and marked Exhibit ‘G2’.
The
evidence given by Charlotte was credible, logical and contained no
inherent probabilities. She impressed as a diligent and methodical
police officer.
Cross
examination by both counsel failed to elicit any significant
contradictions or improbabilities in her evidence and it may be
accepted as reliable and credible.
Sgt. Jerome Edas was
then called by the State. He testified that he had been a member of
the South African Police Service for 7 years,
six of which had been
spent in the Public Gang Unit stationed at Bellville South.
On
Friday 24 August 2001 at 10:00am while on duty he received
instructions to arrest accused one on a charge of rape. He and a
number
of others proceeded to 17th Avenue Boston (accused ones’
then address) to make the arrest. On his arrival at the premises he
noticed
a white VW Golf in the driveway. A man was cleaning the
inside of the vehicle with a broom and dustpan. The accused was then
informed
of the charges against him, and was warned of his rights in
terms of the Judge’s rules and the Constitution. Sgt Edas recounted
his warnings word for word in Court and was very impressive in this
regard.
The
witness testified that Mr. Staggie appeared to react with surprise at
the reason for his arrest. The accused was then taken to
Bellville
South police station. On arrival at the station Sgt. Edas was ordered
to return to accused one’s residence to fetch the
motor car that
had allegedly been used in the crimes. Sgt. Edas then returned as
ordered and seized the vehicle. He confirmed it
as the vehicle shown
in Exhibit ‘A’. When he confiscated the vehicle the person who
had been cleaning the vehicle was drying
the back of the vehicle.
When
cross-examined by counsel for accused one he stated that nothing had
seemed unnatural about the cleaning of the vehicle as it
was a Friday
and that he did not have any knowledge of the particulars of the
charge against the accused.
He
testified that he had seen the accused driving said vehicle on
various occasions in Manenberg prior to its seizure. He was familiar
with this vehicle as it was his job to know in what vehicle the
accused was driving. He had made these observations during the time
when there was a cycle of gang fights between the Hard Livings and
the Americans.
Questioning
by counsel for accused two did not elicit anything further of
significance.
In
re-examination Sgt. Edas stated that he had also observed other gang
leaders and various suspicious individuals in the area of
Manenberg
in accordance with his work functions.
No fault can be found with the testimony of Sgt. Edas.
He testified in a clear logical and concise fashion. His evidence in
fact
was not challenged in cross-examination and there is no reason
for not accepting his evidence as reliable and credible.
At
this point the State closed its case.
At this point both
accused applied to be discharged in terms of
s174
of the
Criminal
Procedure Act 51 of 1977
. After argument their applications were
refused. The Court stated that reasons would be given later.
The refusal to discharge
an accused at the end of the prosecution’s case entails the
exercise of a discretion by a Court. As was
stated in the case
Michael Lubaxa v the State
2001 (2) SACR 703
A by the SCA per Nugent,
AJA at 705I-706B:
It permits a trial court to return a verdict of not
guilty at the close of the case for the prosecution if the court is
of the opinion
that there is no evidence (meaning evidence upon which
a reasonable person might convict). S v Khanyapa
1979 (1) SA 824
(A)
at 838F - G) that the accused committed the offence with which he is
charged, or an offence which is a competent verdict on that
charge.
If, in the opinion of the trial court, there is evidence upon which
the accused might reasonably be convicted, its duty is
straightforward - the accused may not be discharged and the trial
must continue to its end.
In
this case the state’s case was based largely on the testimony of
the complainant. By the end of the state’s case the complainant
had
testified and there was certainly was evidence upon which a court
could convict the accused.
The defence case
The defence then called various witnesses. Accused one
decided not to testify and called his wife, Mrs. Rashieda Staggie, as
the first
witness for the defence.
She
testified that she had been married to the accused for 11 years and
that she had 4 children with him. She was aware that he had
approximately seven other children with various women. The witness
testified that in 1999 accused one had become a reborn Christian.
This occurred approximately three to four months after she had
herself became reborn. She testified that since this had occurred,
accused one was a changed man. While he had previously spent much
time at home or with his children, this had all changed. He was
much
more of a family man and only stayed away from home when it had to do
with church business.
She
said further that although she had heard about things that he had
done prior to his conversion, she had never personally witnessed
any
of this. After having become reborn, accused one became very busy
with church matters. She had accompanied him once to Johannesburg
and once to Port Elizabeth on these activities. On Thursday evening
the week of the alleged rape, she had gone with him to a church
service.
She
had denied any knowledge of continued gang activity on the part of
her husband since his changed status. The income of the family
at the
time of her testimony consisted of donations from churches amounting
to between R2 000.00 and R5 000.00 per month.
Shortly
before accused one was arrested on the present case, they had sold
their family home and bought a cheaper one due to financial
constraints.
She
stated further that she was not employed and that at the time of the
arrest of accused one, on this charge, they had been using
a white
motor vehicle. She did not know what make of car it was.
She
remembered the week when her husband was arrested well, as it was the
week in which she was packing her house to move. She also
remembered
this week as her mother had come to stay to assist with the packing.
She also remembered this week because on the Monday
when the accused
was in Johannesburg, the dog had been run over and she had had to
phone him in Johannesburg to inform him of this.
The
accused returned on Tuesday afternoon from Johannesburg and she
fetched him from the airport. The accused did not go out again
that
day.
On
the Wednesday accused one left the house at approximately 9:00am for
a meeting with a Pastor Woodie. He came back just after 5:00pm.
She
knew this because “Days of our Lives” soap opera was showing on
the television. She was standing in the kitchen and she saw
accused
one through the kitchen window. He had a bicycle with him. She
remembered that her daughters were upset because the accused
had
bought a present for his son and not his daughters.
The
accused then ate his dinner and watched the 7 o’clock news. After
this he took the children to the Seven Eleven to buy sweets.
He came
back just after 8 o’clock. The accused then watched a video on
television. She did not know which one it was, but that
it was one
he had bought cheaply at a Cash and Carry store.
On
Thursday the accused went out. She had heard that he had gone to
Lavender Hill. That night they went to a church service. The
accused was arrested by the police on the following day.
She
testified that she was the owner of a Glock 40 firearm which was kept
locked in a safe. It was her own firearm for which she
possessed a
firearm licence.
In
cross-examination Mrs. Staggie admitted that her husband had not been
employed during the time that they were married, and that
she had
suspected that they were living off the proceeds of crime.
She
admitted that he had been in custody during their marriage but denied
any knowledge of any convictions or sentences served. She
also denied
knowing much about his life before he was reborn in 1999, despite
being married to him.
She
stated that she had attended court each day during his bail
application at Mitchell’s Plain and had listened to his evidence
regarding his alibi. She also admitted to spending each day of the
trial with the accused.
She
could not remember what time accused one’s flight was on the Monday
of the week of the alleged incident but that it was still
dark when
she arrived at the airport. She could not remember what time she had
arrived back home from the airport. She could not
say where accused
one had stayed in Johannesburg or where he had gone despite having
remembered that she had phoned him in Johannesburg
regarding the dog.
She did appear to recall that he was to appear in a television
interview, but could not remember on which channel
and she never
watched it.
She
stated that Rashied Staggie had phoned her twice on the Tuesday from
Johannesburg but could not remember at what time he had phoned
her
for the second time.
When
questioned closely about the precise events of the Tuesday it was
clear that the witness could only really relate what her normal
routine would have been.
She
stated that she could remember that accused one had played with the
children on his return but she could not remember what they
had
played. She could remember, however, that they had discussed how
difficult the children were when he was away.
She
stated that her husband had left for Manenberg on the morning of the
Wednesday in a white Golf as shown in Exhibit ‘A’.
When
questioned about her and her husband’s actions, after he had been
to the Seven Eleven, she stated, in contrast to her earlier
evidence,
after the children had been put to bed, accused one had possibly read
his newspaper and watched television before going
to sleep. She could
not remember what she had done. No mention was made of Rashied
Staggie watching a video as described in her
evidence in chief or of
her reading a book. When these discrepancies were brought to her
attention, her response was to apologise
for being wrong. When asked
why she had not revealed that she had read a book while Staggie
watched a video, her response was to
say she could not remember.
The
evidence of this witness should be viewed with a certain amount of
caution due to the nature of her relationship with accused
one and
hence the strong possibility of bias in her testimony. A curious
aspect of this witness’ testimony is her clear attempt
to
disassociate herself from her husband’s activities prior to his
alleged conversion to Christianity in 1999 to the extent that
she
denied any knowledge of any convictions or of any trial proceedings.
This should be contrasted with her admitted and clearly
diligent
attendance at court during the bail application and duration of the
present trial.
The
witness also conceded that accused one had never held a conventional
job but nevertheless managed to provide for the family in
such a
manner as to enable the family to live in a R400 000.00 home. The
witness would however, only admit to having heard things
about
Rashied Staggie’s activities but never having seen anything.
It
appeared that the witness was making an effort to appear to be a
normal wife and mother and not to have knowledge of her husband’s
lifestyle despite it being obvious that she was living off the
proceeds of crime, and was inconceivable that she could not have
known
where the funds came from.
The
above-mentioned should lead to strong doubt regarding the
truthfulness of her testimony. Although the witness made a valiant
effort
to give a detailed account of the events of the week of the
alleged incident and having had the assistance of the record of the
bail
proceedings in which accused one set out his alibi, it became
clear during cross-examination by the State that she could not really
remember exactly what happened and that her testimony was more an
account of her normal routine. Rashieda Staggie’s contradictory
evidence regarding the video accused one may or may not have watched
on the evening of the incident would tend to indicate that she
was
fabricating an alibi for accused one.
Although
she claimed not to know Mr. Randall Bosch, she had made available R1
000.00 for the funeral of his mother, although they
were living on
donations at this time.
The
witness in general made an unfavourable impression on the court. Her
alleged ignorance of the accused’s lifestyle prior to
his
conversion in 1999 seems far fetched and lacking credibility and her
testimony should be regarded as a poor attempt to provide
an alibi
for Rashied Staggie.
Accused
number one then called Mr Zack Mckay, an attorney. He testified that
he was instructed by Mr. Staggie to represent him at
the bail
application in the case.
He stated that he had
consulted with accused one on the Saturday and Sunday shortly after
the accused was arrested.
He
stated that Mr Staggie had told him he had been watching a programme
on TV about wildlife at about 7:00pm on Wednesday 22 August
2001. He
testified that he had watched the same programme and it was on SABC
2.
He
was also told that accused one had bought an item at Bellville
Bicycles and he went to the owner, Mr. Gouws, and obtained a
statement
from him in this regard. This statement was handed in as
Exhibit ‘L’ after the Court ruled it was admissible, as it was in
the
interests of justice, although hearsay, as required in the
Law of
Evidence Amendment Act 45 of 1988
.
The
witness also testified that he visited the Seven Eleven and it was
confirmed that accused one was at the Seven Eleven with his
children
on the Wednesday. He did not note the name of the person he had
spoken to in his file.
In
cross examination Mr Mckay was asked in detail about proof of the
Johannesburg trip and the appearance on TV. He answered by saying
that he would have to refer to his file. He was also asked to produce
the receipt for the purchase of the bicycle but said he did
not have
it in his possession. He also stated that the Seven Eleven shop had
closed circuit television, but there were problems with
the tapes at
the time. When asked whether he took a statement from the lady who
served the accused at the Seven Eleven shop, he indicated
that the
lady was afraid to come and testify in court.
Mr
Mckay’s evidence was stood down to enable him to produce
documentary proof of the purchase of the bicycle and evidence from
the
lady who served Mr Staggie at Seven Eleven. On resumption he only
produced an affidavit from Mr Gouw, that stated that accused one
bought a bicycle there on Wednesday 22 August 2001 at 16:30. He
stated he could get no evidence with respect to the events at the
Seven Eleven.
Mr
Mckay testified that as he had represented Mr Staggie in the bail
application he had also represented Mr Bosch for free.
Some
of Mr Mckay’s evidence was hearsay evidence. It was provisionally
admitted not to admit the truth of it but to show that the
investigation was undertaken and that counsel for accused one would
call the relevant witnesses if it proved necessary and they were
available.
Little
of significance was elicited through cross-examination. This matter
was not greatly assisted by the testimony of Mr. McKay.
Most of the
evidence lead was hearsay and neither Mr. Gouws, accused one, or the
shop assistant at the Seven Eleven were called to
testify regarding
the purported alibi. The statement of Mr Gouws was admitted but as
this is evidence, albeit hearsay evidence, of
events that occurred
before 5pm, on the day in question, it does not assist the matter as
the alleged rape occurred after 7pm. Little
value can therefore be
placed on the evidence of this witness.
Accused
number two, Randall Bosch, then testified.
He
stated that he was 33 years old and had completed only the first two
grades of schooling. He had only done unskilled work to earn
a
living and was a member of the Hard Livings gang. He joined the gang
as gangs were prevalent in Manenberg and it was more advantageous
to
be a member of a gang.
He
had two children and lived at home with his father and siblings when
not serving sentences in prison. It appeared from his testimony
that
he had spent almost his entire adult life in prison.
He
said he did not really know accused one and had never heard anything
about accused one being involved in crimes such as rape, murder
etc.
He said he did not move in the same circles as Rashied Staggie.
This
it might be said at this point is a little improbable, as Rashied
Staggie was by his own admission the leader of the Hard Livings
gang,
and accused two was a member of this gang.
He
further stated that he had seen Rashied Staggie when he had preached
to the gangsters about peace and being reborn.
Randall
Bosch stated that his mother died in August 2001 and that he could
not afford to bury her. He decided to approach Rashied
Staggie for a
loan of R1 000.00. He testified that Rashied Staggie brought the R1
000.00 to his home but that the money had yet to
be repaid.
He
did not know the complainant and had never been to her house. He did,
however, know her brother, Christopher and brother in law
Cyril and
knew where their home was. He had seen the sister of the complainant
sitting at her stall outside her home.
He stated that he did
not know why he had been implicated in the crimes but he had been
falsely implicated in crimes many times before,
and had been
convicted of things that he had not done. He admitted to smoking
dagga when he was at home.
He
stated that he could remember what happened on 22 August 2001 because
after he was arrested he cast his mind back to that day so
as to
remember what had happened.
On
22 August 2001, the day of the alleged incident, he had gone to see
Aunty Sadia, a family friend, whose birthday it had been, at
about
6:30pm. He was accompanied by his brother Ashley. He, Ashley and
Aunty Sadia’s son Nazeem then smoked dagga. He and his
brother
then returned home accompanied by Nazeem, where they ate sandwiches
and drank tea.
Still
on chief examination, he stated that he found his father watching
television in the lounge on his return to their house. Nazeem
left at
some point, and he and his brother went to bed. This was between
8:00pm and 9pm.
He
denied that he was with Rashied Staggie on that night or had any
knowledge of any “Charras”.
He
stated that the last time he had seen Rashied Staggie was when he had
come to see the body of his mother.
During
cross-examination by Adv Booysen for the State he stated that at the
time of his arrest, he had recently been released from
prison and was
under correctional supervision. He stated that he was only allowed
to leave home between 8:00am and 12 noon.
He
also stated that he had been arrested on illegal arms and ammunition
charges three to four months prior to being arrested on the
present
case and had been released on bail in the amount of R1 000.00. This
was paid by Gamie, the nephew of Rashied Staggie. Gamie
was also a
member of the Hard Livings gang before being reborn as a Christian.
He usually saw Gamie in Manenberg.
It
was put to him that his parole had expired on 2 December 2000. He
explained that he had never made inquiries regarding the parole
conditions as he had lost the telephone number. He had thought that
they were still in effect.
He
confirmed that he had seen Rashied Staggie driving a white Golf in
Manenberg.
He
stated that he could not say how Rashied Staggie had known when or
where his mother’s body was available for viewing. He however
stated that he had not seen Rashied Staggie that day, but had heard
from his brother that this had happened. He stated that he did
not
see him at the funeral.
It
was put to him in cross examination that in evidence in chief
examination he had stated that he had last seen Rashied Staggie when
he came to look at his mother’s body. He could not account for the
contradiction. He could also not explain why he had stated in
his
bail application that he had seen Rashied Staggie at the funeral but
had denied seeing him there, at this trial.
There
were thus material contradictions in his statements regarding if and
when he had seen Mr Staggie.
He
could further not explain why in the bail application he had stated
that his sister and her friends were also at home watching
TV when he
arrived back from Aunty Sadia in contrast to his evidence in chief
that he had only seen his father in the lounge watching
TV. He then
confirmed the contradictory evidence and testified that his sister
did not have friends at the house, but never responded
to the
question as to why he had given contradictory evidence about who was
there when he came back home that night.
As
far as the day of his arrest is concerned, in examination in chief he
stated that on 24 August 2001 he gave himself up at Bellville
South
police station after he had heard from a friend that the police were
looking for him for rape. Accused two stated that he was
not told
what the charges were but when he arrived at the Bellville South
police station he assumed they were looking for him for
rape. He also
said that Inspector van Sitters told him that he was looking for him
on a charge of rape and he was then arrested on
those charges.
In
cross examination the evidence of accused two changed to some degree
and he now mentioned that he had first gone to Manenberg police
station before proceeding to Bellville South. He added that at that
time he had no idea why he had been sought by the police.
He
could not explain why he had stated in his bail application that he
had heard that he was sought as an accomplice of Mr. Staggie
in a
rape case and that he had gone to give himself up. He did, however,
state that he might have made a mistake during the bail
application.
He believed that his head was not right at the time of his mother’s
death.
When
asked why he went to Manenberg police station he replied that it was
to see if they were looking for him for anything.
In
the light of his evidence this action seems rather strange especially
as going to Manenberg police station was not mentioned previously.
It
was placed on record by Counsel for accused one, suddenly during Mr
Bosch’s testimony, that his client had sent a bakkie to fetch
accused two and bring him to Bellville South police station. This
admission by accused one raised major questions about the veracity
of
accused two version’ of the events about the day arrest. Why would
he have gone to Manenberg police station when he was picked
up by
people who knew that Mr Staggie had sent them to fetch him to go to
Bellville-South police station? How could he not have known
why he
was being fetched, and where he was going, as he testified?
Randall
Bosch made a very poor impression as a witness. There were numerous
contradictions between his testimony evidence in chief
and that given
in cross examination and in his bail application.
The
version provided by Mr. Bosch of the events on the day of his arrest
is also improbable.
It
is improbable that Mr. Bosch would go to Manenberg police station if
he had been fetched by an agent of Mr Staggie who had sent
him from
Bellville South police station where Mr Staggie was already. It is
also improbable that Mr. Staggie would have lent him
that kind of
assistance to a mere acquaintance.
It
is also clear that Mr. Bosch had a much closer relationship with Mr.
Staggie than what he would admit to. Gamie, a nephew of Mr.
Staggie,
paid the bail money on his previous case so that Mr. Bosch could be
released from custody. Gamie, on Mrs Staggie’s evidence
lived with
them and acted as driver and bodyguard for them from the time the
incidents with PAGAD had occurred. Gamie, on Mrs Staggie’s
evidence, was the person washing the car in question on the Friday
when accused one was arrested. Mr. Staggie also loaned R1 000.00
to
Mr. Bosch for the funeral of his mother when it was clear it was
unlikely he could have been paid back, at the very least not
in the
short term. Mr Staggie also went to see the body of Mr Bosch’s
mother as well as going to her funeral. All these issues
indicate a
closer relation than what was admitted to.
It
is also improbable that Mr. Bosch would have such a good recollection
of the events of what was a very ordinary day on the day
of the
alleged incident, but not of the days before and after that.
His
evidence was neither reliable nor credible and should be rejected.
The
next witness called by the defence was Inspector van Sitters, the
previous Investigating Officer in the case. He testified that
he was
a member of the South African Police Services and held the rank of
inspector. He was in charge of the investigation of this
case from
the beginning, but was no longer involved. He testified that accused
one was the first one to be arrested in the case,
but accused two
suddenly appeared at the police station. He further testified that he
followed up the alibi defences of the two accused
but the people
concerned refused to make statements. He testified that inspector
Adams took the statement of the complainant. The
statement of
Inspector Adams was handed in as Exhibit ‘H’. He also testified
that the complainant was taken to the district surgeon
on the next
day, the Friday in the afternoon.
She
was taken into the Witness Protection Programme and her child joined
her latter.
He
testified that he got instructions from Senior Superintendent Verey
to investigate the case, and that he did everything in the
case while
consulting with the other twenty members of their section, as all of
them were involved in investigations.
It
was put to him that in the bail application he went out of his way to
make sure that the fact that the complainant was an informer
was not
revealed to the court. He stated that it was usual practice at the
bail application stage to protect the identity of the
complainant. He
was also asked about the statement of Charlotte, as to why it was not
available at the bail application stage, and
who were the legal
advisors that he had said were in possession of it, as was stated at
the bail application. He stated that he did
not have contact with
Charlotte, but spoke to her only telephonically and that he had not
seen the statement. He said that he thought
that the legal advisors
might be the State Advocates at the office of the Director of Public
Prosecutions. He also indicated that
this was not the only case that
he was investigating, but there were hundreds of similar cases.
He
testified that the Identikits were prepared before the complainant
was taken into the Witness Protection Programme. He stated that
the
identikits were put up at all the police stations in Cape Town, but
were not put in the newspapers or broadcast on television.
He
also testified that he had not consulted with the possible witness
Des, and no money was offered to people to testify against the
accused. He also clarified that the crime intelligence referred to in
the bail application was not the same as the section that Charlotte
was working for. The section referred to is where records of
convicted person’s previous convictions are kept.
He
testified about why warrants of arrest for the accused were not
obtained from a magistrate, and why blood test results, and results
of aids tests were not available.
His
evidence was more of formal nature; and while there were no major
contradictions, it is curious why he testified about Charlotte’s
statement being at legal advisors when, on Charlotte’s evidence, it
seems that this never occurred. It seems on this issue he had
made a
statement at the bail hearing, about which he had no knowledge.
Little
value was obtained from the evidence of this witness. The evidence of
this witness when correlated with the evidence of the
complainant and
Charlotte however reveals the inadequacy of the investigation. While
the defence tried to indicate, without evidence,
that there was a
conspiracy, it is clear that the mistakes indicated were because of
negligence. It is very clear that the case was
not given the priority
it deserved. There was a delay of more than 24 hours from the time
the complainant reported the rape before
she was taken to the doctor
for a medico-legal examination. The visit to the crime scene was not
done in a way as to allow the complainant
to find the place in
question.
If
it was dark and raining as was the testimony of the complainant, when
the complainant was taken to the crime scene, another visit
should
have been scheduled.
Further
the evidence of the accused’s alibis should have been followed up.
If Mr Gouws was willing to give Mr Mckay a statement
why would he not
have given one to the Investigating Officer? Why were other alibi
witnesses not followed up? Why was the closed
circuit television tape
of the seven-eleven, of the night of the alleged rape not obtained?
Of
critical significance the IO did not have a detailed consultation
with the complainant and never consulted with Charlotte, the
person
to whom the first report was made. He did not take a statement from
her, although he was the IO for more than a year. He further
did not
go and interview Des, who was seemingly an important witness to
various events.
The
IO also never interviewed or took statements from a whole multitude
of people that testified in this trial never mind other individuals
who could have assisted in the investigation of this case. All of
this was negligence in the extreme.
This
was a case of a high profile nature and the role of the first IO in
the case was appalling. Little care was given to the case.
It seems
that nothing occurred in following up on this case from September
2001 to September 2002 until a new Investigating Officer,
Captain
Jansen, took over.
In
this context Jean
Redpath,
a researcher for Techikon South Africa (in an article entitled
“Should fighting organised crime be a priority as South
Africa
deals with crime and human rights, and does the need to combat crime
justify extraordinary measures that may limit rights?”
Law,
Democracy and Development 2000(2) 173 in a discussion on policing has
stated that:
you may have noticed that I have so far failed to
mention rape. It is common knowledge that South Africa’s reported
rape statistics
are among the highest in the world, and the Western
Cape has the second worst rate in the country. It is also widely
believed there
is significant under-reporting of this crime, with
estimates ranging from 1 in 2, to 1 in 35. Yet not a single area I
have visited
thus far regards rape as a priority. Indeed, an officer
who otherwise appeared reasonable and very competent described rape
victims
older than 18 as “old meat”. While discussing the figures
for those younger than 18, his comment was that these figures “are
not a joke as the old meat can handle it but the young meat can’t”.
This comment is highly appropriate in this case, as this
case was not taken very seriously by the police who initially
investigated
it. For a year almost nothing was done on the case. The
complainant was given very little assistance and she was only taken a
day
after her report of the rape for a medical examination. It is not
surprising that no medical or other evidence of the rape was found
during that examination. See J88 marked Exhibit ‘ ‘.
As
was noted earlier the first investigating officer was neglectful of
his duty on this case for more than a year. It is not surprising
that
he was relieved of his duties in the case, although it was stated
that he went on leave. The second investigating officer, while
having
had lots of police experience had only been involved in two previous
cases of rape. It is surprising to say the least that
a high profile
case such as this, which would be reported on in the media, and which
may have an impact on the culture of crime and
violence would have
received so little attention and an investigating officer with so
little experience.
A
criticism has long been that there is inadequate training of the
police in dealing with rape survivors and that rape specialists
ought
to deal with these types of cases.
This is not a new criticism and
Janine Rauch as far back as 1994 noted that:
The low
rate of successful prosecutions and the dissatisfaction of
complainants at the way rape cases are dealt with suggest a need
for
an improvement in practical policing skills in relation to rape …
The problems surrounding police handling of rape cases are
not simply
training problems. … Broader problems of police attitudes to women
in general, and to violence against women in particular,
require
further attention.” [A Critique of South African Police Training
for Dealing with Rape Cases by Janine Rauch In Jagwanth,
S.,
Schwikkard, P.J. & Grant, B. (eds),
Women
and the Law
, pp. 225-236, HSRC
Publishers, Pretoria 1994.]
In
addition, in 1997 the UN Special Rapporteur on Violence Against
Women, its Causes and Consequences, Ms. Radhika Coomaraswamy, in
her
Report on the Mission of the Special Rapporteur to South Africa on
the issue of Rape in the Community of 1996 (11-18 October
1996
E/CN.4/1997/47/Add.3 24 February 1997 at para 32) stated:
It appears that the training and specialization of
police officers with
regard
to sexual violence and rape varies greatly, depending on the
individuals
and on each police district. In order to counter this problem at the
national level, the National Standards and Management
Department of
the South African Police Services was, at the time of the Special
Rapporteur's mission, in the process of developing
national standards
and a code of practice for the police in dealing with victims of
sexual violence.
This type of criticism was again repeated during 2002 by the South
African Human Rights Commission (SAHRC Report on Sexual offences
against children:
Does the Criminal Justice System
Protect Children? April 2002)
severely criticized the handling
of reported rape cases by police, prosecutors and community leaders.
case has also certainly indicated that police officers remain
insensitive and inexperienced in handling rape cases and rape
victims.
These are important issues as according to the SAHRC in their Report
on Sexual offences against children:
Does the
Criminal Justice System Protect Children? April 2002) note
:
A good police response to a victim of sexual abuse is
likely to vindicate the victim’s experience of abuse, thereby
increasing his/her
confidence in the criminal justice system.
Conversely, a poor response is likely to invalidate the victim’s
experience of abuse,
thwart his/her confidence in the criminal
justice system, discourage him/her from resorting to the criminal
justice system for assistance
in the future, thereby increasing the
victims’ vulnerability to further abuse. It is therefore critical
that the police respond
to reports of sexual abuse with empathy,
patience, professionalism and sensitivity.”
These are also important
issues as they have critical effects on crime and the community in
our country. The norm of failed prosecutions,
or no prosecution,
perpetuates a lack of respect among citizens for the rule of law and
human rights, which further undermines the
legitimacy of the criminal
justice system. As Chaskalson P, as he then was noted in S v
Makwanyane,
para 122
:
the greatest deterrent
to crime is the likelihood that offenders will be apprehended,
convicted and punished. It is that which is
presently lacking in our
criminal justice system; and it is at this level and through
addressing the causes of crime that the State
must seek to combat
lawlessness.
Mahomed J (as he then
was) in the same case provided a useful and concise list of the most
critical problems confronting the criminal
justice system and
perceptively describes what needs to be done to create successful
deterrence of serious crime. He stated:
We
were not furnished with any reliable research dealing with the
relationship between the rate of serious offences and the proportion
of successful apprehensions and convictions following on the
commission of serious offences. This would have been a significant
enquiry. It appears to me to be an inherent probability that the
more successful the police are in solving serious crimes and the
more
successful they are in apprehending the criminals concerned and
securing their convictions, the greater will be the perception
of
risk for those contemplating such offences. That increase in the
perception of risk, contemplated by the offender, would bear
a
relationship to the rate at which serious offences are committed.
Successful arrest and conviction must operate as a deterrent
and the
State should, within the limits of its undoubtedly constrained
resources, seek to deter serious crime by adequate remuneration
for
the police force; by incentives to improve their training and skill;
by augmenting their numbers in key areas; and by facilitating
their
legitimacy in the perception of the communities in which they work.
(At par 290) (
Makwanyane
at 496A)
The role of the first Investigating officer ought to, at
least, therefore be the subject of an internal police disciplinary
inquiry
as well as an investigation by the Independent Complainants
Directorate.
.
After
Inspector Van Sitters had concluded his testimony Captain Jansen, the
second IO was called to testify by accused two. He testified
that he
had twenty years experience within the South African Police Services.
He testified that he had always known that the complainant
in this
case was a paid informer, and she was working closely with Crime
Intelligence. He said he was aware of rumours circulating
within the
Manenberg community that the complainant was prostitute.
He
testified that he took the statements of a number of witnesses in the
case that had not been taken before, and that he offered
to put them
in the Witness Protection Programme. He testified further about the
methods used when taking statements from witnesses;
and whether the
stamp of the commissioner of oaths is affixed before the witness or
whether this is done at a latter stage. This
issue was canvassed
extensively by defence counsel who wished to show that the statement
of the complainant’ brother, Christopher
was incorrectly taken.
It
was put to Capt Jansen that the police were either negligent in
investigating the case, or that they invented the whole case, as
they
did not take the complainant to the doctor as soon as possible after
she had made the statement, and that the statement of Charlotte
who
gave evidence of the first report, which was crucial in a rape case
was only received a year after the event. Captain Jansen
denied a
conspiracy.
He
also testified, supporting the earlier testimony of Inspector Van
Sitters, that it was policy not reveal the identity of the
complainant
and the person to whom the first report was made at a
bail application.
He
also testified that he spoken to accused number one in Wynberg, who
said that as a result of this case, he was no longer reborn.
He
was asked to explain the extent to which the police tried to find the
two other perpetrators in this case. He testified that they
had put
copies of the identikits in police stations. He was asked why they
did not put them in the media and in Durban, and why they
did not
offer a reward for information about the two other supposed
perpetrators. He could not answer but stated that he limited
experience with rape cases.
He
also testified, after being recalled, after the complainant’s
brother Christopher had testified, about the method of taking
Christopher’s
disputed statement. He testified that he not known
about the information before the witness had told him about it, and
that he had
drafted the statement, as is usual practise using his own
language, but had in places used the specific wording used by the
witness
which he had put in quotation marks. He testified further
that he read the statement back to Christopher who had agreed with
contents
and signed it, and that he did not make any promises to him.
He
testified further that the reason that he went to see Christopher in
prison was that he got a message from the prison authorities
that
Christopher wanted to see him regarding the case. He testified
further that he used the same method in taking statements from
other
witnesses, as was usual practice.
There
are no grounds for not accepting the evidence of Captain Jansen as
reliable and credible. He was further more called as a witness
for
the defence, and counsel for accused two, at one point, stated that
he did not intend to discredit his own witness. In the circumstances
there are no grounds for not accepting that the statement of
Christopher was not taken down in the manner described by Captain
Jansen.
Captain Jansen’s demeanour, throughout the trial, was such
as to allow him to be seen as satisfactory, honest, and reliable
witness
who was doing his job to the best of his ability.
The
next witness called for the defence was Ashley Bosch, the 31 year old
brother of accused two. He testified that he had been employed
as a
taxi guard for about 11 years and was not a member of a gang. He
only achieved standard one at school and shared a bedroom
with
accused two. He added that two of his brothers had been murdered.
He
stated that on 22 August 2001 he came home from work at about 6:15pm,
the time he usually came home from work. Accused two was
at home.
He had a cup of tea and he left with accused two to see Aunty Sadia.
Accused two went to congratulate her on her birthday,
whilst he and
her son smoked a dagga pipe downstairs.
They
returned home at about 7:45pm. He knew this because there was a
clock across from the door when he walked in. They ate sandwiches
and
drank tea. At about 9:00pm he and accused two went to bed.
He
could not remember what he did on the other days of the week in
question.
In
cross-examination by the State the witness conceded that he could not
remember the date of the bail application despite having
asserted
that he had worked that day and thus could not attend.
The
witness could also not say with certainty how long after his
brother’s arrest the bail application was held.
He
said that he did not know on which date specifically his brother was
arrested but that it was on a Wednesday. He then immediately
said
that he was not sure but that he thought it was on a Wednesday. Then
he conceded that he could not really remember very well.
In fact,
accused two was arrested on a Friday.
On
further questioning he stated that he and Nazeem had smoked dagga
pipes on the Wednesday. He then said it was the Wednesday or
the
Tuesday. Then he said he could not say on which day it had happened,
but that it was the day before accused two was arrested.
He then
stated that he could not say in which month it had occurred.
On
questioning by the Court, the witness stated that the evening he had
smoked the dagga pipes at Aunty Sadia’s was definitely the
day
before accused two was arrested. He conceded that if accused two had
been arrested on the Friday then he must have gone to Aunty
Sadia’s
on the Thursday. This was in contradiction to the evidence of accused
two that they had gone there on the night of the
alleged rape, i.e.
the Wednesday.
He
stated that the incident happened in the summer, and it had only
begun to get dark when they returned home from Aunty Sadia’s.
The
incident happened however in August when it is winter and it must
have been dark long before they came home supposedly at 7 45pm.
Ashley
Bosch not only became increasingly confused throughout his testimony
but also contradicted his brother, Randall Bosch, in whose
favour he
was called to testify.
Ashley
Bosch testified that the visit to Aunty Sadia took place the evening
before the arrest of accused two in contrast to the latter
who
testified that it took place two evenings before his arrest.
It
is clear that Ashley Bosch had no real memory of the evening of the
alleged incident. He quite clearly came to testify to try and
provide
an alibi for his brother but ended up giving muddled and
contradictory evidence which should be rejected as unreliable and
not
credible. It was in fact clear that in cross examination this witness
was shown to be anything but credible.
Mrs J, the mother of the
complainant, was then called as a witness for accused one. She
testified that she had come to testify as
a result of a communication
she had had with her son, Christopher.
She
stated that she knew nothing about an intended R10 000.00 bribe to
try to get the case withdrawn, or about any request for a photograph
of the complainant. She said she did not feel threatened.
She
stated that all she knew about the alleged rape was that the
complainant had gone to work on the day after the alleged rape, but
that she was not told by her about it. The witness testified that the
complainant did not have breakfast and asked her for R8.00
for taxi
fare to go and meet the lady that she charred for. The complainant
had asked her about how she looked to which she had replied
that she
looked excellent. Mrs J testified that her daughter kept looking in
the mirror and stated that everyone was saying that
she was getting
fat and wanted her mother’s opinion on this. Her mother testified
that she agreed.
Mrs
J testified that her daughter then left and had not returned that
day. She saw her only two or three days later, when she had
arrived
home accompanied by the police to fetch clothes. One of the policemen
had told her that the complainant had been raped.
She
confirmed that there had been an incident regarding the complainant
which occurred in the school toilets. She had been told about
it.
After the incident it was suggested to her that she take the
complainant to see a psychologist, which she had failed to do.
She
confirmed the complainant’s evidence that on one occasion her flat
was searched by the police and a zip gun was found in the
warmer
drawer of the stove.
She
testified that although she had seen accused one on various occasions
she had spoken to him for the first time at court during
this case.
Accused two had come to her house once, to greet her, after he had
come out of prison.
She
confirmed the complainant’s testimony that Christopher used to hit
the complainant.
She
also confirmed the complainant’s testimony that all 4 daughters in
the family were sexually molested by the complainant’s
father, and
that he had raped her daughter R, and that he had been sentenced to 7
years imprisonment.
Mrs.
J conceded that she had had a visit from two members of the Hard
Livings gang who tried to persuade her not to allow her daughter
to
withdraw the case against Rashied Staggie. She stated that she
suspected that it was a trap and told them she did not have time
to
think about it.
She
further conceded that she had told Christopher not to become involved
in the case at all, as she was afraid he would land in trouble.
The
witness then started to cry in court and stated that she was not
going to let her son be shot dead, and she also did not want
to be
shot dead. She stated that maybe not the accused, but their friends
would do it.
She
stated further that the complainant was safe away from Manenberg,
whilst Christopher still lived in Manenberg. She stated that
she was
suffering from stress and that she was taking medication for it.
She
testified further that members of the Hard Livings gang had wanted to
shoot Christopher the previous year, alleging he was also
an
informant of the police. It appeared to her that even without the
orders of Mr. Staggie or Mr. Bosch, there were people who were
prepared to shoot Christopher.
As
far the events at the time of the alleged rape were concerned, the
witness stated that the complainant was at home with three of
her
friends at about 7 pm on that day. They had asked her for money to
buy cigarettes, and thereafter they had left. She testified
that the
complainant came back when she was asleep and she had only seen her
the following morning when she was preparing to go to
work.
Mrs
J also testified and confirmed evidence by the complainant that she
had experiences with tokoloses, had problems at school, and
how she
had tried to help her.
She
also confirmed evidence of the complainant regarding searches by the
police and the finding of the zip gun in the house. She stated
that
she knew Fahiem Jacobs and that he used to come to their flat
frequently, and that she suspected there was a love relationship
between him and the complainant.
She
also confirmed the evidence of complainant in relation to the various
rapes and sexual abuse by her father. She testified that
the
complainant’s father abused and raped all the daughters and was
arrested and convicted for raping her daughter, R.
She
testified about various episodes when the complainant left home to
live with her friend, Eva, in various parts of Cape Town, and
that
rape charges were laid by Eva against her son, Christopher. She
stated that Eva had a bad influence on the complainant, and
that
after Eva disappeared, the complainant no longer left home, and that
she got married and had a child.
In contrast to her testimony it is clear that Mrs. J did
in fact feel threatened, and to that extent she was prepared to
interfere
in the court case, and try to prevent her son from
testifying. This is clearly demonstrated by her demeanour while
testifying, and
her breakdown in the proceedings and her expressed
fears for her own life and that of her son’s. The witness was
clearly intimidated
to the degree that she was initially prepared to
mislead the court and interfere with the testimony of another
witness. In the circumstances
it will be difficult to regard her as a
completely reliable and credible witness. It is however clear that
she supported the complainant’s
version on a few crucial aspects.
After
this witness had testified the defence closed its case
Court witnesses
The court then called the complainant’s brother,
Christopher, in terms of
section 186
of the
Criminal Procedure Act,
who
testified he knew nothing about the case. He was questioned about
allegations that he been approached by the accused with regard
to
having the case withdrawn by the complainant, that money had been
offered and threats made. Initially, when questioned by the
court he
denied having spoken to any of the accused in this matter. He later
changed this and admitted to having spoken to the accused
on at least
two occasions, one at the beginning of 2002 and once after coming out
of prison in December 2002.
He
testified that he was living at the flat when the alleged incident
occurred, and was subsequently arrested for events unrelated
to the
case, and was released from jail just before Christmas 2002, and that
he served his sentence under a different name.
He
testified that he consulted with Captain Jansen and had made a
statement while in prison, but that he disputed the contents of
the
statement.
He
stated that he had not stated certain of the facts in the statement,
but they were things the Investigation Officer had told him.
He
stated that he made the statement as he was told that he would be
released early, and that he would receive preferential treatment
in
jail. He therefore, as a result of the promises, deposed to a
statement some of the contents of which he had no knowledge.
Adv
Booysen, for the state, put it to him that she had consulted with him
in jail about the statement and had read the statement to
him in the
absence of Captain Jansen, and that he had confirmed that he
understood and agreed to the statement. He agreed that he
had
confirmed, on her visit with him in prison, the correctness of the
contents of the statement, and never disputed its contents
with her
at any point during their consultation. When asked about this the
witness’s explanation was that he thought that Ms Booysen
and
Captain Jansen were working together.
He
also stated that he did not understand what an oath was, and the
implications of taking it, on paper. He said that the reason for
refusing to testify was that he was still in jail, and that he said
he would testify when released from prison.
He
was asked about the offer of the ten thousand rand from the accused
and the request for a photo of the complainant, and he said
that he
heard about this from Captain Jansen, but he did not, on his own know
anything about it. He had also heard rumours from the
newspapers,
whilst he was in prison.
He
denied that he was approached by accused one with respect to the
allegations contained in his statement.
The
witness then requested legal assistance. This request was supported
by counsel for the accused, although he was in fact a court
witness.
The witness was then sent to Legal Aid. Legal Aid however, refused to
assist him. The Court then was able to arrange pro
amico assistance
for Christopher from Advocate Bisschoff, a member of the Cape Bar,
and the Court is indebted to him. The court adjourned
for this to
occur.
After receiving legal advice the witness resumed
testimony and was questioned further regarding his statement.
The
witness asserted that certain aspects of the statement were taken
down correctly, for example that he took money from Mr. Staggie
for
food but that he knew nothing about an alleged R10 000.00 to withdraw
the case, although he had told Captain Jansen that he had
heard
rumours about it.
He
admitted to hitting his sister, the complainant, with belts when she
did something he disapproved of. He also admitted to beating
her
with his fists to the degree that on one occasion her mouth bled. He
admitted to being almost 10 years older than her. He also
admitted
that his own girlfriend, Eva, used to sleep with his mother as she
was too afraid to sleep in his room, although he denied
assaulting
her.
He
also testified and confirmed the complainant’s problems at school
and gave evidence that he used to go looking for the complainant
when
she ran away from home. Once he fetched her from a drug house in
Woodstock where she was watching a blue movie without her clothes
on.
He attempted to insinuate that she was involved in prostitution.
He
testified that the police searched the house and found a zip gun in
the warmer and that he had placed it there and that he was
arrested
and sentenced to clean a court for a day for this offence.
He
also testified that some time after making the statement to Captain
Jansen he had received a phone call in prison on a cell phone
from
the complainant to ask if he could assist with identifying the two
other perpetrators whom the complainant said had raped her
and that
she said she thought they were from Westside.
He
testified that when he came out of prison he went to the place where
accused one usually held meetings, to talk to him about the
case, as
he wanted to clear his name. This was occasioned by the facts that
his friends, who were gangsters were no longer talking
to him.
Christopher
was not a credible witness. It is not believable that he was prepared
to depose and claim that the contents of an affidavit
which was read
back to him, on more than one occasion by more than one person
(Captain Jansen and Adv Booysen) are true, and yet
he was prepared to
come to court to deny its contents. It is improbable that he was
unduly influenced in the making of the statement
since he on his own
evidence he was a member of the 28’s prison gang, which, on his
evidence, lays down the law in prison. While
he initially denied
talking to accused one, latter in the record he admitted talking to
him on two occasions, once immediately after
he came out of prison.
It is clear that he was afraid and it is very probable that he
therefore attempted to retract his statement
regarding offers and/or
threats from the accused.
Little
reliance can be placed on the testimony of this witness. The
relationship between him and the complainant was not a good one.
The
witness admitted behaviour towards the complainant that was somewhat
less than brotherly love, caring and of concern. He clearly
tried to
damage his sister’s credibility by insinuating an involvement with
prostitution, despite there being no evidence of this
or grounds for
believing this to be so.
He
is a member of a gang and has served various prison terms and it
would appear that his loyalty towards the gangs is paramount,
whether
this is as a matter of choice or coercion.
He
disputed the statement he made to Captain Jansen in which he alleged
he was approached about getting the case withdrawn for a sum
of
money. When he was released from prison he went to see accused one
immediately to discuss the matter. The bias of this witness
towards
accused one can be in no doubt.
The
second witness called by the Court in terms of its
section 186
powers
was Dr. Marian Viljoen, who had a doctorate in psychology. She was
called as she had been seeing the complainant, and the
Court was told
during the trial that she was a psychologist. She was, however, not a
registered psychologist.
She
had taught the subject and had seen a number of patients in various
capacities over a number of years, including rape victims.
She has
her own private practice as a therapist. The complainant was referred
to her by a medical doctor in July 2002, and the referral
letter,
Exhibit ‘M’, stated that the complainant was suffering from
anxiety and sleeplessness.
Dr
Viljoen stated that between July and October 2002 she had about 5 one
hour sessions with the complainant and she had diagnosed
her to be
suffering from post traumatic stress syndrome. Dr Viljoen read from
her extensive notes taken during those consultations
and gave a
report of the rape that was the same as that which the complainant
testified to.
She
testified that the complainant had anxiety and fear for the safety of
her family and the problems relating to her school situation
were
possibly related to dyslexia. This manifested itself in left
handedness, a lack of concentration, frustration and outbursts.
Dr
Viljoen stated that the complainant had attempted to take her life
more than once.
The
defence in cross examination raised the fact that she was not
registered and that she was not entitled legally to make a diagnosis
and to hold her self as somebody who could cure any psychological
defect. The defence was asked on numerous occasions for authority
that the witness ought not to be heard and the court stated its
willingness on a number of occasions for the defence to make such
an
argument, and provide authority in this regard. This did not occur.
Mr Mihilak simply wanted the court to rely on the testimony
of Mr Van
Wyk, the defence psychologist, on the law regarding the status of Dr
Viljoen. A special entry was then requested and was
made.
The
defence also questioned the techniques that Dr Viljoen had followed
in making a diagnosis of the complainant. She responded that
she used
interviews and that she had relied on the information given to her by
the complainant and had not verified it since she
was not performing
a forensic role, but rather a therapeutic one. She stated that if she
done otherwise she would have transgressed
the rules of ethics
governing her profession.
She
testified that she had told the Witness Protection Programme to refer
the complainant to a psychiatrist. This had not occurred.
Dr
Viljoen is not a registered psychologist and is not entitled to make
a diagnosis in terms of the Health Professionals Act 56 of
1974 as
amended.
The
version of the rape given by Dr. Viljoen was not a first report, and
is hearsay evidence, and of no value in itself. If Dr. Viljoen
had
been a registered psychologist, the information given by the
complainant to her would no doubt be material.
In
these circumstances, therefore the testimony of Dr. Viljoen is of no
value.
The
next witness was Mr Gerhard van Wyk who is a registered Clinical
psychologist in private practice. He was called by the defence
after
the Court had at the time of giving notice of its intention to call
the person who had been giving the complainant psychological
care,
permitted the defence to appoint an expert, to listen to and testify
after listening to the evidence of this person. The court
made an
order for the state to pay for this services of this witness for the
defence.
Mr
van Wyk, testified that he had testified in 60 out of 60 criminal
cases as a defence witness and that he has an M A degree in clinical
psychology. He stated that Dr Viljoen was not practicing lawfully,
and that her evidence must not be trusted by the court.
He
testified further that from what he has heard he was concerned that
the complainant might be suffering from anti social personality
disorder or a borderline personality disorder which were serious
mental illnesses, and that if this was suspected it would be
dangerous
for the court to accept the complainant’s evidence.
He
placed emphasis, when criticizing Dr. Viljoen, on the fact that she
did not obtain a full and detailed history from the complainant.
He
stated that one would also have to test the veracity of what was told
by the person under assessment by interviewing family members
and
others.
He
did not however exclude the possibility of the truth of the diagnosis
that Dr Viljoen had made, that the rape had occurred and
that visions
she had had were the result of post traumatic stress or the result of
epilepsy or some illness in her childhood which
could have lead to a
high temperature which could have resulted in what she supposedly
saw. He conceded that most of the criteria
for determining the
condition that he possibly diagnosed were broad and could be
eliminated by other factors. He admitted that he
had not interviewed
the complainant, nor read her evidence in chief, nor any other parts
of the record and had read only a portion
of her cross examination.
The
evidence of Mr van Wyk was not of much assistance since he was
willing develop an alternative diagnosis without examining the
complainant. As the court noted in S v Lister
1993 (2) SACR 228
(A)
at 232A:
Ultimately it really appears that Dr Sidley, although
possessed of vast general experience and expertise, was at a
disadvantage as
far as appellant is concerned. He ostensibly has
consulted her only once.
In this case the witness never consulted the
complainant. It is however curious that he was professionally willing
to state, albeit
as a possibility, that the complainant suffered
possibly from a serious psychological disorder on a minimal amount of
information
regarding the complainant.
He
described the complainant as a person who made the lifestyle choice
to slip out of home and mix with gangsters and visited drug
dens and
knew about drugs.
All
of this is a misinterpretation of the facts. There is no evidence
apart from that of complainant’s clearly hostile brother,
that the
complainant frequented drug dens or used drugs. That the complainant
would have been familiar with drugs and their uses
is only to be
expected considering the environment in which she lived.
Mr.
van Wyk alludes to mixing with gangsters as if it was a specific
choice and a negative one made by the complainant.
It
is clear that the complainant was brought up in a household where her
brother and brother-in-law were gangsters. The area in which
she
lived was on the border of three gang areas. The complainant not only
had no choice in mixing with gangsters but it is clear
that one of
her motivations for becoming an informant was to try and rid the area
of gang activity.
The
complainant’s work record was noted as a possible sign of a
personality disorder. In the light of the fact that the complainant
is still a teenager, and was only 17 when the alleged raped occurred,
has a standard three education, no skills, and a small child,
this is
a remarkably harsh observation. It is important to note that the
complainant was assisted financially by her husband, who
was employed
as a security guard, before going to jail.
Mr.
van Wyk also stated that the complainant kept adjusting facts as
would be most useful to her during her testimony, and noted this
as
an example of deceitfulness.
It
is hard to understand on what basis Mr. van Wyk could judge facts
that were being adjusted in light of the fact that, on his own
evidence, he never read her evidence in chief or any of the other
evidence in the case. It is therefore appropriate to note the
comments
of the court in S v Randall
1995 (1) SACR 559
(C) 564J where
Steyn AJ agreed with the submission that:
There is also the problem that Dr Oxtoby appears to
have permitted himself something less than an objective approach, and
to have
adopted a partisan attitude towards the appellant's plight.'
Mr van Wyk’s evidence
must therefore be treated with caution.
Before
I move to the summing up of the evidence in this case I want to
comment on the assessors in this case. While it is not usual
for a
Court to explain the choice of assessors which a judge has made,
during the trial Mr Mihalik questioned why one of the assessors
had
been appointed when another assessor was originally to have sat in
the trial. The first assessor, a retired magistrate, was not
appointed eventually as he brought to my attention on the day that
the trial was to begin that he had sat as an assessor in a trial
concerning the brother of accused one. As a perception of bias was
possible, that assessor was not appointed. Let me add that my
choice
of assessors was also made to ensure representivity. I therefore,
besides issues of legal background, skill and experience,
took into
account South African demographics and gender. I therefore appointed
an African advocate, who is a member of the Cape bar,
as well as a
woman with 10 years experience as a state advocate. They have both
been very useful members of this Court and the Court
is indebted to
them for their insights and assistance throughout the trial.
Conclusion
In
the majority of rape cases, there is no one else present besides the
victim and the rapist or rapists. The only proof often available
to
the prosecution is the victim's word and any circumstantial evidence
that may or may not be available. This is the context within
which
this case needed to be decided.
The evidence of the alleged rape was that of a single
witness, the complainant.
Section 208
of the
Criminal Procedure Act
provides
that an accused may be convicted of any offence on the
single evidence of any competent witness
It
is critical to note that there used to be a specific cautionary rule
in sexual offences, but that the Supreme Court of Appeal in
S v
Jackson
1998 (1) SACR 470
per Judge Olivier, at 476E, found that the
rule:
in sexual assault cases is based on irrational and
out dated perception. It unjustly stereotypes complainants in sexual
assault cases
(overwhelmingly women) as particularly unreliable.
The
court, at 476F, found that the rule should not be applied in sexual
cases only but that:
the evidence in a particular case may call for a
cautionary approach, but that is a far cry from the application of a
general cautionary
rule.
In
this regard the Supreme Court of Appeal in S v M 1999(2) SACR 550 (A)
per Melunsky AJA, noted at 554G-555B that:
Prior to the decision in S v Jackson
1998 (1) SACR
470
(SCA), it had long been accepted that criminal cases of a sexual
nature fell into a special category. It was said that there was
an
'inherent danger' in relying upon the unconfirmed testimony of a
complainant in a sexual case. This resulted in the courts adopting
a
cautionary rule of practice. The rule required -
(a) the
recognition of the 'inherent danger'; and
(b) the existence of some safeguard that reduced
the risk of a wrong conviction, such as corroboration of the
complainant in a respect
implicating the accused, or the accused's
failure to give evidence or his obvious untruthfulness. (See S v
Snyman
1968 (2) SA 582
(A) at 585C - H.) In S v Jackson it was
pointed out at 476E-F that the application of the cautionary rule to
sexual assault cases
was based on irrational and outdated
perceptions. Although the evidence in a particular case might call
for a cautionary approach,
this, it was emphasised in the judgment,
was not a general rule: the State was simply obliged to prove the
accused's guilt beyond
reasonable doubt. The factors which motivated
this Court to dispense with the cautionary rule in sexual assault
cases apply, in my
view, with equal force to all cases in which an
act of a sexual nature is an element.
Thus,
no such rule exists exclusively in relation to sexual offences, but a
cautionary approach ought to be adopted where needed.
While
it could be argued that no cautionary ought to be adopted in this
case, this court has adopted a cautionary approach regarding
the
evidence of the complainant. Certainly the background and context of
this case, as well as the psychological issues raised in
this case,
give rise to the need to possibly treat the evidence of the
complainant with caution.
That
the complainant testified about seeing various things on two
occasions, once while at school and once during the trial when she
attempted to commit suicide, ensures that her evidence may possibly
be needed to be treated with caution.
However,
the state of mind of the complainant must not be overstated. The fact
that victims suffer from various effects of sexual
abuse has long
been recognised.
In
S v Van Wyk
2000 (1) SACR 45
(C) Davis J at 50H-I noted:
The Court has taken note of the circumstances of the
rape and the extent of the post-traumatic rape syndrome which has
been suffered
by the complainant.”
Davis J, at 51J–52C, further noted that:
“
Ms Friedman - to whom the Court is grateful -
clarified aspects thereof. It is helpful to read but a passage from
this report:
'Complainant
reported for the first three months after the assault. She withdrew
from her friends and boyfriend and described a state
of prolonged
shock. She moved out of her flat in Wellington and moved into her
aunt's home in Bothasig. This was largely due to her
anxiety of being
alone for a period of time. She concurrently experienced a set of
psychological symptoms: sleeplessness, anxiousness,
nightmares,
severe appetite and weight loss, inability to be alone, associative
symptoms, avoidance of males and depressive affective
states. Her
memory and concentration also reportedly deteriorated markedly. She
had been an avid reader but after the alleged rape
could not read for
four months. She also developed panic attacks with the first one
occurring one week after the rape. The panic
attacks are accompanied
by visual, olfactory and auditory flashbacks to the alleged rape
incident.'
Ms
Friedman explained how this reflected a classic set of symptoms
suffered by rape victims. Dr Malcolm goes on to state:
'In
August 1998 she was particularly depressed and made a suicide attempt
by overdosing on her sister's sleeping pills.
Ann Wolbert Burgess, and Lynda Lytle Holmstrom,
conducted a study of victims of sexual violence in 1973 and found
that the victims
frequently reacted similarly to the attack. (cited
in
Cynthia
F. Feagan, “Rape Trauma Syndrome Testimony as Scientific Evidence:
Evolving Beyond State v. Taylor”, 61 University of
Missouri Kansas
City Law Review 145, 151 (1992)
.)
This study has been further supported by other studies. (
Susan
Stefan, “The Protection Racket: Rape Trauma Syndrome, Psychiatric
Labeling, and Law” 88 Northwestern University Law. Review
1271,
1289-91 (1994)
Kenneth
M. Gordon, “Rape Trauma Syndrome in Sexual Assault Cases”,
20
Colorado Law Review 2509 (1991)
has found that Rape Trauma Syndrome is a type of post-traumatic
stress disorder (PTSD) suffered by women who have been raped and
Feagan, at 152, notes that the scientific community has recognized
RTS as a clinical description that distinguishes rape victims
from
other groups of victims."
The
court in
State
v. McQuillen, 689 P.2d 822, 831 (Kan. 1984)
noted that:
“
Experts
in the field have established through their work with rape victims
that there are reactions to forcible rape common to all
rape victims.
. . . Many victims develop phobic reactions to a wide variety of
circumstances, such as fear of crowds, fear of being
alone, or fear
of the sights, sounds and odors associated with the rape. All victims
are left with some paranoia."
Jennifer
J. Hackman “Henson v. State: Rape Trauma Syndrome used by the
Defendant as well as the Victim” American Journal of Trial
Advocacy
(Fall 1995) 453 has noted:
To be classified as suffering
from RTS, the rape victim's "stress responses" must meet
four criteria: First, the event that
causes the stress must be of
significant magnitude as to evoke distinguishable symptoms in almost
everyone. Second, the trauma must
be re-experienced, usually by
recurrent and intrusive recollection of the rape. Dreams and
nightmares are common; and nonmastery
dreams, where the victim is
unable to successfully overpower the assailant, occur. The third
diagnostic criterion is the numbing
of responsiveness to the
environment or a reduced involvement with the environment. Finally,
two of the following list of six symptoms
should be present that were
not present prior to the rape: (1) exaggerated, startle response of
hyper-alertness; (2) disturbance
in sleep pattern; (3) impairment of
memory and/or power of concentration; (4) avoidance of activities
that arouse recollection; (5)
increased symptoms that symbolize or
resemble the event (commonly when the victim is confronted with
sexual activity); and (6) guilt
about surviving or about behavior
during the rape. Symptoms of RTS are, for simplicity's sake, divided
into two categories of behavior
that a woman who has been raped may
exhibit: avoidant behavior and intrusive ideation. Avoidant behavior
can be present in a number
of ways, but is best characterized by a
woman who, after the rape, avoids any person, situation or location
that reminds her of the
rape. Intrusive ideation is the opposite.
These women relive the rape over and over in their minds and can have
flashbacks based
on anything that reminds them of the rape, resulting
in a lack of concentration and sleep.
The symptoms suffered by the
complainant are consistent with rape and other types of sexual
violence. The occasion it occurred in
her childhood could be
explained by similar events of sexual molestation and her own rape by
the father of her friend, Belinda. It
was the evidence that the
earlier rape that been perpetrated against her by the father of her
friend, Belinda, occurred at the time
of the events that occurred in
the school toilets, where she had seen things. In the toilets she was
being teased about the rape
and thus, it is more than likely that
there is a connection between the traumatic events she had suffered
then and the things she
saw as occurs in Rape Trauma Syndrome, as was
noted above.
In spite of this the court has adopted a
cautionary approach to the evidence of the complainant and has
evaluated the evidence given
in the trial to determine if there is
corroboration, even though the
complainant’s version was
very detailed and remained consistent in her statement, in her first
report to her police handler and
in her testimony in which she
repeated and repeated the same allegations and facts over a long
period of time while under gruelling
cross-examination.
The
circumstantial evidence supports the version of the complainant. Her
version that she was a police informer who was uncovered
was
supported by her handler, as well as documentary evidence of payments
to her.
That
she went with her friend Des, who then went to tell on her to members
of the gang, to see her police handler the day before the
rape
occurred was supported by the evidence of her sister R and her
handler Charlotte.
That
Mr Staggie drove past the house on a number of occasions and stopped
outside the flat twice once at mid day and once in the early
evening
was the testimony of the complainant. That Mr Staggie’s care was
there at least once was also supported by evidence of
the
complainant’s sister, R despite her lack of clarity regarding
whether it had occurred between 5pm and 6pm on the Tuesday or
the
Wednesday.
One
must question why Christopher would have gone to see accused one
immediately on his release from prison in December 2002 while
this
trial was on, and before he had testified?
Furthermore
the complainant organised to phone her brother while he was in prison
to see if he could help identify the two other perpetrators.
While it
could be argued that she was attempting to bolster her story, the
chances of her working this out and calculating that the
phone call
occurred would come out during the trial are remote.
As
far as the alibis offered by the accused, the court had grave doubts
about the evidence of the alibi witnesses, as was noted above
and the
alibis cannot be accepted.
The
fact that Mr Bosch was fetched by people under orders of Mr Staggie
on the day of his arrest as well as the fact that Mr Staggie
organised for his legal representatives to represent Mr Bosch for
free, must also be considered as to whether a close relationship
exists as was mentioned before in this judgement and also as to why
Mr Staggie performed these acts.
I
am satisfied that the State has proved the two accused guilty beyond
reasonable doubt. On the evidence therefore, not only of the
complainant, but also of the other circumstantial evidence, the
accused are guilty of kidnapping and rape, in that they forced the
complainant to accompany them against her will, and then either in
the case of accused one ordered her rape, and in the case of accused
two, raped her personally.
It
is clear that complainant was coerced by means of threats into
getting into accused one’s vehicle and leaving with him and the
others; thereby being deprived of her freedom to act. Accused two
clearly associated himself with accused one at all times in the
commission of the offences. He was in the vehicle when the
complainant was forced to go with them. He participated in a gang
rape
at the instruction of accused one. He remained with accused one
when the complainant was dropped off. He further made no
disassociative
acts throughout the commission of the offences. In the
circumstances it can be inferred that accused two, acted in
furtherance of
a common purpose with accused one with respect to the
kidnapping may be convicted of kidnapping also as charged.
A common purpose is found to have occurred on the basis of the
decision in S v Mgedezi
1989 (1) SA 687
(A)
which
relied on
S v Safatsa and Others
1988 (1) SA 868
(A), the
court found, at 705I-706C, that certain prerequisites must be
satisfied:
In the first place, he must have been present at the
scene where the violence was being committed.
Secondly,
he must have been aware of the assault on the inmates of room 12.
Thirdly,
he must have intended to make common cause with those who were
actually perpetrating the assault.
Fourthly,
he must have manifested his sharing of a common purpose with the
perpetrators of the assault by himself performing some
act of
association with the conduct of the others.
Fifthly, he must have had the prerequisite
mens rea
;
so, in respect of the killing of the deceased, he must have intended
them to be killed , or he must have foreseen the possibility
of their
being killed and performed his own act of association with
recklessness as to whether or not death was to ensue.
These
prerequisites existed in this case, and accused two is therefore also
guilty of kidnapping.
I
am satisfied on the basis of the complainant’s evidence that
accused was in possession of a firearm at the time of the rapes and
is not in possession of a firearm licence. Accused one is therefore
guilty on count 1 on a charge of kidnapping the complainant,
guilty
on count two of raping the complainant, and guilty on count three of
transgressing Article 2 of Act 75 of 1969.
Accused
two is guilty on count one on the charge of kidnapping the
complainant, and guilty on count two of raping the complainant.
This
is a unanimous decision of this Court.