---

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

BISHO

CASE NO. CC16/2006

In the matter between:

THE STATE

and

MASIXOLE COAL ACCUSED

JUDGMENT

DHLODHLO ADJP:

1. The accused, a 39 – year – old male person is charged with one count of rape.

It is alleged that on or about the 9^th day of August 2005 at or near G.A.A., C. in the district of M. he unlawfully and intentionally had sexual intercourse with A B, a 12 – year – old female person without her consent.

2. The charge is accompanied by a warning to the effect that, if he is convicted, the provisions of section 51(1) of the Criminal Law Amendment Act 105 of 1977, relating to minimum sentences, will be applicable, as the victim is a girl under the age of 16 years.

3. He pleaded not guilty to the charge and denied that he had sexual intercourse with the complainant.

4. Evidence adduced by the State is briefly as follows:

4.1 The Complainant is a daughter of one N B whose home is, according to the accused, about 200 metres from his home. She testified through an intermediary through electronic means from a room adjacent to the court room.

4.2 On a certain Saturday the Complainant A B was sent by her aunt Lawula to a shop to buy snuff.

4.3 On her way to the shop A was called by the accused. She responded to the call. She believed that the accused wanted to send her to a shop.

4.4 The accused grabbed her and dragged her to bushes near a bridge where he caused her to lie on her back, undressed himself and undressed her.

4.5 The accused got on top of her and lay on his stomach on her. He then inserted his penis into her vagina and performed upwards and downwards movements.

4.6 The accused took his lumber jacket and placed it over A.’s mouth so that she could not scream.

4.7 The complainant resisted and screamed when the accused grabbed hold of her and dragged her.

4.8 When she told the accused that she would report what he was doing to her, he threatened to kill her if she reported to anyone.

4.9 She felt pain when the accused inserted his penis into her vagina.

4.10 She had not had sexual intercourse with a man before.

4.11 When the accused finished having sexual intercourse with her he left her there and walked away.

4.12 A. proceeded to the shop, bought snuff and returned to her home.

4.13 She did not report what had happened to her, to her mother because she feared that the accused whom she knew very well as Buti Malixole would kill her if she did.

5. A few days after the alleged rape incident the accused arrived at the home of the mother of the complainant N B.

6. B. was seated outside a shack with the complainant and her siblings.

7. According to both B. and the complainant the accused appeared to have taken liquor. According to B. he was intoxicated.

8. Upon his arrival the accused said that he had come to look for his girl-friend.

9. Later B. asked him what he meant by saying that the complainant was his girl-friend.

10. Malixole responded as follows:

“You stupid woman, you do not know that at some stage I had sexual intercourse with A..”

11. As the accused was saying this he was advancing towards A..

12. B. said that she went to him and hit him with a fist. She said that the accused retaliated by hitting back.

13. B. asked her child N. to give her a knife. She received a knife and then stabbed the accused in his hand. She does not remember whether it was the right or the left hand.

14. While they were fighting one Mpukwana Ngwevumlungu intervened by taking her into her house and the accused to his home.

15. Later B. questioned the complainant about what the accused had alleged.

16. The complainant told her that the accused had raped her. She said that on the day when her aunt sent her to buy snuff from a shop she was accosted by the accused on her way back from the shop and that the accused grabbed hold of her, lifted her up to some bushes where he had sexual intercourse with her against her will. B. said that the complainant said that the accused covered her face with a coat.

17. Later at the house of one Trayishile the accused admitted that he had sexual intercourse with the complainant on a day when she was sent by her aunt to buy snuff from a shop. This admission was made in the presence of B..

18. B. said that when he admitted before Trayishile that he had had sexual intercourse with the complainant the accused was sober.

19. The alleged rape was subsequently reported to the police and the complainant was referred to Cecilia Makiwane hospital for examination.

20. B. said that when the accused was at her house he was very drunk – he was falling down as he was walking. She said that the accused knew what he was doing because on the following day he knew about things he had said on the previous day.

21. B. said that the complainant had no boyfriend.

22. Nondazi Tyhaliso is a 38 – year – old female person. She lives at the village where the complainant lives. She is related to the parents of the complainant.

23. Tyhaliso said that she knows the accused and that she and the accused are lovers.

24. Tyhaliso said that on a certain day the accused asked him if she wanted him to tell her the truth. She said that this happened when they were at the accused’s place.

25. Tyhaliso said that she asked him what truth he was referring to. The accused again asked her if she wanted him to tell her the truth. She answered in the affirmative.

26. The accused asked her whether she knew that at some stage he had sexual intercourse with the complainant. She said that she did not know about it.

27. Tyhaliso asked him where he had sexual intercourse with the complainant, upon which he said that he took her from her home, had sexual intercourse with her on that night and later released her to go to her home.

28. Tyhaliso said that she left the accused and went to tell the complainant’s mother about what the accused had said.

29. Tyhaliso said that she and the accused were in a happy mood when he told her about the incident. She said that he was intoxicated but not very much.

30. She said that the accused was aware that she was related to the complainant’s family.

31. She said that she never quarrelled with the accused and that she bears no grudge against him.

32. Tyhaliso said that when the accused told her about what he had done to the complainant he refused to sleep with him on that night, having been angered by the fact that he had slept with B.’s child (the complainant)

33. The accused was the only defence witness. His version is briefly the following:

33.1 On a Monday he went to the complainant’s home where he found a young man by the name of Nceku who was sitting with B., the complainant’s mother outside a house.

33.2 He addressed the young man saying:

“Nephew, you are sitting her with your mother – in – law.”

33.3 B. became very angry when she heard this. She asked the accused how he could think that when a boy is at her home, that boy sleeps with the complainant.

33.4 B. swore at him and said that she was going to show him.

33.5 The accused denied ever walking in the company of the complainant, dragging her to bushes and having sexual intercourse with her. He further denied that he told Tyhaliso that he had had sexual intercourse with the complainant.

33.6 In his testimony the accused sometimes introduced new facts which had not been put to State witnesses. On several occasions he was asked why he did not tell his Counsel about them and he would have no comment.

34. At some stage the Court warned him not to face downwards.

35. At Cecilia Makiwane hospital the complainant was examined by forensic nurse Saliswa Sylvia Ngqangweni who observed, among others, that the vertical was wider for her age, that the hymen configuration was crescentic, that the vestibular excoriations were healing and that hymenal tissue was missing. The nurse concluded that her findings were consistent with aggressive type of sexual assault. She further concluded that the complainant sustained emotional trauma.

36. The complainant, her mother B. and Tyhaliso gave evidence in a straight forward manner. There is no indication that they did not tell the truth or that they exaggerated facts in one way or another.

37. Medical evidence suggests that the complainant’s genitals had been tampered with.

38. There are very minor contradictions in the evidence of the complainant and that of B., such as whether the complainant was attacked on her way to or from the shop and the whether she was lifted or dragged by her assailant to the bushes.

39. The accused was a very poor witness who introduced new facts in his testimony. Sometimes when he was asked to respond to questions by State Counsel he had no comments. His version cannot be said to be reasonably possibly true.

40. The State has proved its case beyond reasonable doubt.

41. The accused is found guilty as charged.

_____________________________

A E B DHLODHLO

ACTING DEPUTY JUDGE PRESIDENT

28 MARCH 2006

HEARD ON: 20, 21/02/2006, AND

26, 27, 28/03/2006

FOR THE STATE: Ms N TOKOTA

FOR THE DEFENCE: Mr L R NDUNYANA

---