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

IN THE HIGH COURT OF SOUTH AFRICA
(BISHO)

CASE NO:  21/06

THE STATE

versus

MTHOBELI GONYELA	Accused

JUDGMENT

EBRAHIM J:
Introduction
[1]	The accused, Mthobeli Gonyela, is charged with two counts of rape and has pleaded not guilty to these charges.  Pursuant to the provisions of s 112(1) of the Criminal Procedure Act (‘CPA’) the accused elected to disclose the basis of his defence on count 1.  Mr Mhlaba, who appears for the accused, informed the Court that the accused’s defence was that a person named Mkhuseli Tokwe could have raped the complainant.  This was confirmed by the accused.  In respect of count 2 the accused did not disclose the basis of his defence.

The State case
[2]	Mr Kristafor, who appears for the State, adduced the evidence of the complainant, N.M., who was twenty‑one years old.  She testified that on Friday 2 September 2005 the accused, accompanied by his friends, tried to sell a cellphone to her and Annelise Khate.  Annelise was keen to buy the cellphone but did not have money and the accused and his friends left.

[3]	That evening, asleep in her bedroom, she awoke at about midnight when the light was switched on.  She observed that Mkhuseli Tokwe was in the room and had entered through the window.  He thereupon obtained the key to the front door from her brother, M.M., unlocked the door and the accused and Unathi Siretshe came inside.  Tokwe pointed a knife at her and wanted the cellphone.  When she told him she did not have it, he said the accused had told him that it was with her.  She replied that she would borrow money from Funeka if he were going to kill her.  Tokwe then told her to follow him and they left the house together with the accused and Unathi.  At this stage, she was crying.

[4]	Near the home of Funeka Mquqo, Tokwe instructed her to take another path and they proceeded to a stream on the other side of the village.  When they arrived there, he told her to undress.  She refused and he threatened to kill her.  Her brother had been following them but Tokwe, brandishing his knife, chased him away.  Tokwe and the accused then had sexual intercourse with her without her consent.  She did not resist as she feared Tokwe would kill her.  Tokwe also said he would kill her if she told anyone what had happened.  When Tokwe told Unathi to have sexual intercourse with her he had refused to do so.
[5]	On the way to the accused’s house Unathi informed Tokwe that he was going home and left.  At the accused’s house, she had to lie on a bed and Tokwe and the accused lay next to her.  Both had sexual intercourse with her again.  When Tokwe had sexual intercourse with her, the accused told him to stop.  Tokwe and the accused then slept but she remained awake.  After they awoke, she went home and the accused accompanied her part of the way.

[6]	Her brother was asleep when she arrived home.  She did not wake him to tell him what had happened and went to sleep.  Later, the accused arrived with Tokwe and Unathi.  Tokwe repeated his demand for the cellphone and she again told him she did not have it.  The accused also told Tokwe that the cellphone was not with her.

[7]	She had subsequently related to her principal, Mr Mgubha, what had happened.  He notified the police and she made a statement to them.  She was taken to the Bhisho hospital where she was examined.  There was a discharge from her vagina and she related to the doctor what had occurred.  She then received counselling.

[8]	During cross‑examination by Mr Mhlaba she denied that the accused had given the cellphone to Annelise who would pay for it the following day.  She also denied receiving a motor vehicle tape recorder and tapes from the accused earlier that Friday.  He had given these to her brother and had not asked for these items.  She did not know if the accused had been shocked at the events at her house.  She admitted she had hidden behind the accused when Tokwe threatened her with the knife.  She agreed she tried to run inside the home of the Mquqo family and that Tokwe had grabbed her before she entered the gate.  The accused and Unathi had remained with her when Tokwe chased her brother away.  She denied that the accused tried to hide her amongst the shrubs or that Tokwe threatened the accused and Unathi with the knife for trying to do this.  The accused and Tokwe had raped her in the bushes and only Unathi Siretshe did not do so.

[9]	They had told her they would kill her if she screamed.  She could not remember if she had said in her statement to the police that Tokwe had threatened to kill her.  Tokwe and the accused forced her to go to the accused’s home and took her to a room.  Tokwe left and returned with a condom.  The accused turned up the volume of the music and she heard Mlisa tell the accused the music was too loud.  Mlisa did not enter the room when the accused was in the bed with her.  She also did not see Mlisa or Zanele.  She admitted she had made a mistake in not telling the police that she heard Mlisa’s voice.

[10]	She denied she slept at the accused’s house as she had been afraid to go home.  The accused locked the door and kept the key.  After they got into bed, the accused did not pass‑out but raped her.  She was allowed to leave as the accused was afraid his grandfather would find her there.

[11]	The following Tuesday she informed her principal what had occurred as she thought he could help her.  She was unable to tell her brother and had been afraid to tell anyone else.  Her brother had told her he knew what had happened but they did not pursue the conversation.  Only after she spoke to her principal did she tell her brother what had occurred.

[12]	The Saturday evening she slept at her aunt’s home.  As her aunt was very old she did not tell her what had occurred.  When Tokwe, the accused and Unathi arrived the Saturday morning she was not relaxed but frightened.  The accused did not ask her for three ‘CDs’ and she did not hand any or a tape to him.  It was untrue that he left these with her the previous day.  She admitted that the accused came to her home on the Sunday.  However, she did not speak to him but to someone named Dambayi.  She previously had a love relationship with the accused’s cousin, Mpinga, and slept with him at the accused’s home.  She denied saying that the accused had stolen chickens from a neighbour.

[13]	In reply to questions from the Court, she stated that Mlisa, whose surname was Sidamba, was the accused’s aunt.  She was afraid of Tokwe and the accused and did not call out to Mlisa.  She had asked her brother why he had not summoned help when he saw Tokwe and the accused take her away but he did not give an explanation.  She never told Dambayi what had occurred as she was concerned she would tell others.  She did not go to the police station as it was a great distance away and she did not have transport.
[14]	M.M., testified that on Friday, 2 September 2005 he and his sister, the complainant, were asleep at home.  Late that night there was a knock on the door.  Mkhuseli Tokwe came into the room through a window, opened the door of the house and the accused and Unathi entered.  Tokwe was armed with a knife and told his sister he wanted the cellphone.  Tokwe threatened her with the knife and she replied that she would borrow money.  Tokwe, Unathi and the accused then left with her.

[15]	He followed them but Tokwe chased him away with a knife and cut his lumber‑jacket.  He then returned home and went to bed.  He was not concerned and expected his sister to return shortly as she had said they were going to Mquqo’s place.  He saw her the following morning but did not speak about the incident.  On Sunday his friend Siviwe told him what had happened to his sister and on Monday she related what occurred.

[16]	During cross‑examination by Mr Mhlaba he confirmed that the statement he had made to the police was recorded in English although he had spoken isiXhosa.  He denied telling the police that his sister had told him the Saturday morning that she had been raped.

[17]	In response to questions from the Court he said that he had not sought help when Tokwe took his sister away as she was going to Mquqo’s place and would return shortly.  He had not raised with her the issue of rape as he did not want to speak about something of which he was unsure.  When he eventually spoke to her, she wanted to know from whom he had heard this.  She told him she wanted to tell the police but was afraid to do so and would tell her principal.

[18]	In his testimony, Unathi Siretshe confirmed that he was with the accused and Mkhuseli Tokwe on 2 September 2005.  He knew the complainant, N.M..  He went with Tokwe and the accused to her home.  Tokwe had said he was going to get his cellphone from N..  At her home Tokwe knocked on the door.  When no one responded Tokwe went around the side of the house and climbed through a window.  Tokwe opened the front door and he and the accused went inside.  Tokwe had a knife and asked N. for the cellphone.  She had replied that it was with Nonki (i.e. Annelise Khate) and offered to borrow money from Mquqo.  Thereafter the four of them left the house and proceeded to the Mquqo home.

[19]	Before they reached the Mquqo home Tokwe said they had to take a path leading to the forest.  N.’s brother, Mthobeli, had followed them but Tokwe ordered him to return home.  Tokwe then ordered Nobumlumko to undress and raped her.  When he had finished raping N., Tokwe told the accused that it was his turn to rape her.  At first, the accused refused but when Tokwe insisted, the accused raped her.  Tokwe had also told him to rape N. but he refused.  Tokwe wanted to stab him and threatened to kill both him and N..  Tokwe handed the knife to the accused and told him to kill them but the accused refused to do so.  It is only when he said that he would not reveal what had happened that Tokwe left him alone.  On their way back he parted company with them and went home and N. had to accompany Tokwe and the accused.  He subsequently told Siviwe what had occurred.

[20]	During cross‑examination by Mr Mhlaba he said that the cellphone was to be sold to Nonki.  He did not know why Tokwe asked the complainant for the cellphone.  Tokwe had used the knife to threaten the complainant.  He confirmed the complainant had tried to run away when they were close to his home and that Tokwe chased after her and grabbed her.  However, he did not assist.  He could not dispute that the accused may not actually have seen Tokwe raping the complainant.  He did not know if the accused told the complainant that he dared not rape her as he had been accused of rape previously but the charge was withdrawn.  He did not know who gave the ‘CDs’ and a car tape to the accused at the complainant’s home the following day.  He told the police the accused had refused at first but raped the complainant when Tokwe insisted.  He saw the accused on top of the complainant but did not see him insert his penis in her vagina.  He recalled telling the police of the threat to kill him and the complainant and thought he had told them that Tokwe had given the knife to the accused to kill them.

[21]	Re‑examined by Mr Kristafor he said that the accused had raped the complainant.  He was a distance of about three to four metres from them and could see what was happening.
[22]	Replying to questions from the Court, he stated that when he said the accused had raped the complainant he meant the accused agreed to do so and went to the complainant.  The accused removed his trousers, got on top of her and moved his body up and down for about twenty minutes.  Tokwe had forced the complainant to have sexual intercourse.  He did not go for help as Tokwe had threatened to shoot him.  He had told Siviwe that the complainant was raped as he trusted him.
  
[23]	The following State witness was Ndoda Highfort Mgubha, the principal of Welcomewood High School.  On Tuesday, 6 May 2005 the complainant came to see him in his office and related what had happened to her the previous night.  He then telephoned the police.  She told him that she had been at home with her younger brother when there was a knock on the door.  They refused to open and she asked what the person wanted at such an ungodly hour.  He replied that he wanted his cellphone, opened the window and climbed inside.  He then opened the door and two other individuals entered.  The person had questioned her about a cellphone but she did not know anything about it.  She was taken to the forest where two of the men raped her.  The third person, who had attended school with her, refused to do so.  Later they proceeded to the home of one of her assailants.  There she was raped again and they threatened to kill her with knives if she reported the incident.  The following morning they released her and she went home.  

[24]	Cross‑examination by Mr Mhlaba was brief.  Mr Mgubha confirmed the complainant had told him that only Mkhuseli was in possession of a knife.  She had spoken to him on a Tuesday and not a Monday but he could not remember the date.  He accepted that in the statement to the police he said the incident occurred on the Friday night.  This was the truth.  He would have given the correct date since the events were fresh in his mind then.

[25]	Replying to questions from the Court he said that N.M. was shy when she related what had occurred.  She had said she was reluctant to report the incident but a boy, Siretshe, told her if she did not reveal what had happened he would report it to the principal.  The police interviewed her at the school and then took her away.  She was a very quiet pupil and he had not experienced any problems with her.

[26]	Dr Razia Jassat, a medical practitioner at Bhisho Hospital testified that she examined the complainant, N.M., on 6 September 2005.  Her observations and findings are set out in a report, Exhibit ‘D’.  She did not find any physical signs of rape but there was a discharge from the vagina of the complainant.  The complainant was traumatised and was sent for counselling.

[27]	It emerged during cross‑examination by Mr Mhlaba that the complainant had related the full story of what had happened to a nursing sister in the trauma unit.  The ability of Dr Jassat to establish if the complainant had been traumatised was challenged by Mr Mhlaba.  She replied she had been a doctor for twenty years and disputed Mr Mhlaba’s claim that she had imagined that the complainant was traumatised.

[28]	In response to questions from the Court, Dr Jassat said that her notes revealed she examined the complainant on Tuesday, 6 September 2005, at 16h30 and that she had told her she was raped on Saturday at 15h00.  It was possible that either she or the complainant could have made a mistake regarding when the complainant was raped.  The complainant had said that she had not come to the hospital sooner as she was afraid.  Dr Jassat also stated she had examined numerous patients over the past twenty years and could establish if a patient was traumatised or merely feigning.  It was her opinion that the complainant was traumatised.

[29]	Questioned further by Mr Mhlaba, Dr Jassat stated that every rape victim examined by her had been traumatised by the rape.  This concluded the case for the State.

The Defence case
[30]	The accused, Mthobeli Gonyela, testified in his own defence.  On Friday, 2 September 2005, Mkhuseli and Unathi accompanied him to the home of the complainant, N.M., to fetch his tapes and a ‘CD’ player.  He knocked on the door and M.M. opened the door.  He was not aware that Mkhuseli had gained entry to the house via a side window.  Unathi and he went inside and N. woke up.  Mkhuseli produced a knife and asked N. for his cellphone.  He was surprised that Mkhuseli wanted to stab her as Mkhuseli had handed the cellphone to Unathi’s brother, Hankie, that evening.  He intervened to tell Mkhuseli that since he knew where the cellphone was he could not ask her for it.  N. said it was with her friend Annelise Khate, known as Nonki, but since he was demanding it from her she would get money from her uncle, Mquqo, to pay for it.

[31]	They went to the home of Mquqo but the lights were off.  N. said they should cross the river to go to Welcomewood.  As they were passing Unathi’s home, N. ran towards the house screaming.  Mkhuseli and Unathi grabbed her and dragged her back, with Unathi saying, ‘Leave my home, there is nothing for you here’.  They proceeded and near the river N. said she wanted to urinate.  Mkhuseli remained behind with her and he and Unathi walked ahead.

[32]	M.M. arrived but was chased away by Mkhuseli.  N. approached him and said, using his nickname, ‘Dastone, Mkhuseli is raping me’.  She asked him to hide her and he hid her behind a bush.  Mkhuseli found them, drew his knife, and wanted to know why he was hiding her and dragged N. behind a bush.  A little later Mkhuseli came to him and said, ‘You Stone, also have intercourse with her’.  Although he went to where she was he did not rape her and told her to get up.  He did this as his brother had been in an intimate relationship with her.  Mkhuseli also told Unathi to have intercourse with her but he refused.  Mkhuseli then said that only the four of them should know what had happened.

[33]	From there they proceeded to his house while Unathi went to his own home.  N. told him she was afraid to go home and would sleep at his place.  Mkhuseli wanted to go home but as the house was locked came with them.  At his home he and N. went to one room while Mkhuseli went to another where there were two women named, Mlisa and Ntombizanele.  N. undressed and they went to sleep.  He did not rape her.  Mkhuseli came to the room and lay on the bed next to N..  Mlisa entered the room and pulled the blankets off, but left when she saw it was the three of them.  

[34]	N. awoke him in the morning.  She was dressed and he went with her part of the way to her house.  Later that day Unathi arrived and together with Mkhuseli they went to the home of N. to fetch his tape.  He asked her for it and they left after she handed it to him.

[35]	During cross‑examination by Mr Kristafor, he said he had been afraid of Mkhuseli as he was armed with a firearm and a knife.  Mkhuseli had also threatened to shoot him.  He told his legal representative that he had pretended to have intercourse with her but denied that he did so.  He also told his legal representative that he lay on top of her but did not do this either.  He had not lowered his trousers at any stage.  He could not say that Mkhuseli had raped N. as he had not seen him raping her.  He assumed Mkhuseli raped N. as she had said he did so.

[36]	He, N. and Mkhuseli had slept in a single bed.  He wore a short pants and N. a T‑shirt.  Mkhuseli wore a tracksuit pants and the upper part of his body was naked.  N. did not say anything when Mkhuseli got into the bed.  He did not tell N. to sleep with the other women as she wanted to sleep with him.  He had not insisted as he did not intend doing anything to her.  Mlisa, who was his aunt, did not say anything when she pulled off the blankets.  He did not tell Mlisa that Mkhuseli had raped N. as he thought that N. would lay a charge.  He did not see Mkhuseli rape N. at his home and, if it happened, it occurred while he was asleep.  The following morning when he went to N.’s home he did not want Mkhuseli to go with but he had followed him.

[37]	 In response to questions from the Court, he said he told his legal representative he arrived at the complainant’s house at 9.00pm and not midnight on Friday.  He also informed him that Mthobeli, N.’s brother, had questioned Mkhuseli about entering through the window.  He did not ask Mkhuseli why he did this.  He knew it was unlawful for Mkhuseli to climb through the window and threaten to stab N..  He had not been afraid to intervene when Mkhuseli wanted to stab N. but was afraid when Mkhuseli took her from the house.  He had made a mistake in not going to seek help.  He was also afraid when they proceeded to the river.

[38]	N. was lying if she said he had not hidden her from Mkhuseli.  N. did not want to go to Mlisa’s room and came to his bed out of her own.  He did not think there was anything wrong in sleeping next to her while he was in his underpants and she was dressed in a T‑shirt.  However, he would not have expected his brother to do this.  He did not object to Mkhuseli sleeping next to N. as he knew that Mkhuseli would not rape her in his home.  The three of them were on a single bed and he would have woken up if Mkhuseli had raped her.  N. was lying when she said Mkhuseli had raped her.

[39]	When they returned from the river he did not take N. home as he was drowsy and wanted to sleep.  She was no longer afraid in the morning and he did not accompany her all the way home.  He did not fetch the CDs and tapes then as it was early and she had woken him up.  In addition, he was dressed in a short pants and T‑shirt and it was cold.  This concluded the case for the defence.

Analysis of the evidence
[40]	I shall not recount the submissions made on the merits by the State and the defence.  The pertinent aspects thereof should become apparent during the analysis of the evidence that follows hereafter.

[41]	I shall deal firstly with the evidence of Dr R Jassat.  She examined the complainant three days after the alleged rape.  The complainant was traumatised and could not fully relate what had occurred.  There were no visible signs of rape but there was a discharge from her vagina.  This could have been due to an infection or from sexual intercourse.  The complainant told her she had not come to the hospital sooner as she was afraid.  She then sent the complainant for counselling.

[42]	Mr Mhlaba disputed Dr Jassat’s observations.  He contended that it was a figment of her imagination that the complainant was traumatised.  Mr Mhlaba’s attack on the professional competence of Dr Jassat was ill‑conceived, to say the least.  She has been in medical practice for over twenty years and examined countless patients.  As the principal medical officer at the Bhisho Hospital she had examined approximately fifty rape victims in the past three years.  Given such extensive experience, she is more than suitably qualified to determine if the complainant’s trauma was genuine or not.  Mr Mhlaba’s allegation was wholly unsubstantiated and misguided.  There is nothing to suggest Dr Jassat’s observations were a figment of her imagination or that she was mistaken.
 
[43]	The important feature of Dr Jassat’s evidence is that she did not state that the complainant was raped but only that it appeared she recently might have had sexual intercourse.  I accept without hesitation the correctness of her observations and the validity of her conclusions.  She was patently an honest witness and I find her testimony reliable.  
[44]	I turn to the testimony of the complainant, N.M..  Her description of what transpired at her home at midnight on Friday, 2 September 2005, is corroborated by the testimony of her brother M.M. and Unathi Siretshe.  Her version of events was also corroborated by the accused himself, save that he claimed they arrived at her home at 9.00pm.  Even though the accused says he informed his legal representative of this, the time of their arrival was not disputed during cross‑examination.  The accused also claimed that his reason for going to the complainant’s home was to fetch his tape(s) and CDs, yet at no stage did he ask her for these.

[45]	Neither the accused nor Unathi nor her brother intervened when Tokwe forced the complainant to accompany him at knifepoint to the Mquqo home.  When asked why he had not prevented this, the accused said he that he was afraid as Tokwe had a knife.  He admitted, however, that he had not been afraid to intervene earlier when Tokwe wanted to stab the complaint.  It is clear therefore that his claim that he was afraid of Tokwe is untrue.

[46]	During his testimony the accused gave a different version to the one Mr Mhlaba had put when he cross‑examined the complainant and Unathi.  This version changed again when Mr Kristafor cross‑examined him.  There were numerous material inconsistencies and contradictions in his description of what had occurred when he was with the complainant.  His version differed in material respects from that of the complainant and Unathi and was riddled with improbabilities.

[47]	It is common cause that Tokwe forced the complainant to undress before he raped her.  This occurred in the presence of the accused and Unathi and was clearly visible to them.  His actions clearly demonstrated what he intended doing when he took her into the bushes.  There could not have been any doubt in the minds of the accused and Unathi that Tokwe was going to rape the complainant.  The accused has admitted that Tokwe later re‑emerged and told him to have intercourse with her also.  He says that he went to where the complainant was but did not rape her.  The complainant and Unathi contradicted this claim and refuted his claim that he had earlier tried to hide the complainant from Tokwe.
 
[48]	Unathi corroborated the complainant’s testimony that she was raped by the accused.  Unathi also corroborated the complainant’s testimony that Tokwe had raped her.  Both of them disputed the accused’s claim that he had tried to hide the complainant from Tokwe.  They were reliable witnesses and their evidence was credible.  I accept their testimony as the truth of what had occurred.

[49]	The complainant’s brother corroborated what had happened at their home and when the complainant was taken towards the river.  The defence did not challenge his evidence and I accept that he has truthfully related what occurred.  He was a credible witness and I accept the reliability of his evidence.

[50]	The defence also did not challenge the testimony of Mr Ndoda Highfort Mgubha, the principal of Welcomewood High School.  He was a credible witness and it is evident from his testimony that the complainant was consistent in relating what had happened to her.  The story she related to him is consistent in all material respects with the version she disclosed to Dr Jassat and the version she provided in her testimony to the Court.  I find Mr Mgubha’s evidence to be reliable and accept same.

[51]	The accused was an evasive and untruthful witness.  He constantly changed his story and his answers to straightforward questions were improbable.  It is clear that he has lied about what occurred and I do not consider his story as reasonably possibly true.  His claim that he did not rape the complainant is manifestly false.  The evidence establishes that when they were at the river he raped the complainant immediately after Tokwe had raped her.

[52]	The accused was also patently untruthful in his description of the events that occurred at his home.  He painted a picture of the complainant voluntarily participating in what occurred.  He claimed she was not compelled to accompany him and Tokwe to his home but chose to do so out of her own.  He said it was also her decision to stay there.  Furthermore, she decided to sleep at his home as she was afraid to return to her own.

[53]	I find this absurd, to say the least.  There was no one at her home whom she had to fear.  On the other hand, she had reason to fear the accused and Tokwe after being raped by them.  Even if one were to accept that the accused had not raped her at the river, which this Court has rejected, then there was still the question of her having to remain in the company of Tokwe.  It defies belief that the complainant would be more afraid of returning home than remaining in the presence of the person/s who had abducted her from her home at knife‑point, forced her into the bush and raped her.  By his own admission, the accused had not done anything to protect her from the criminal conduct of Tokwe.  It is even more improbable that the complainant would voluntarily have chosen to sleep in the same bed with the person/s who had just raped her instead of immediately returning home.

[54]	 Unathi corroborated the testimony of the complainant that she was forced to accompany Tokwe and the accused to the latter’s home.  There is no evidence to support the accused’s claim that she did so voluntarily.  Even on the accused’s version, it is obvious that the complainant had acted under duress since Tokwe was armed with a knife and a gun.

[55]	There are material contradictions between his version and that of the complainant.  In describing what had transpired at his home the accused once again tried to create the impression that neither he nor Tokwe engaged in any criminal acts against the complainant.

[56]	The accused’s allegation that she did not want to sleep in the room with the two women but wanted to sleep in the single bed with Tokwe and himself is improbable.  More so when taken with his further allegation that she got into bed wearing merely a T‑shirt while he wore only an underpants and Tokwe a tracksuit pants.  In view of Tokwe’s conduct towards her earlier that night, she would certainly not have slept between him and the accused wearing only a T‑shirt with Tokwe half-naked.  It is equally unlikely that she would have slept in the same bed willingly even if they had been fully dressed.  The position in relation to the accused is the same.  It is improbable she would have slept next to him and have done so while only in a T‑shirt and he in his underpants.

[57]	I accept the complainant’s version of events.  She was a credible witness and her testimony reliable.  The same applies in respect of Unathi Seretshe as a witness.  His testimony confirms that the complainant was compelled to accompany the accused to the home of the accused and had not gone there voluntarily.

[58]	The accused’s allegation that the complainant lied about what had taken place is wholly without substance.  The evidence clearly establishes that she did not participate willing in anything that happened that fateful night.  From the time that Tokwe entered her home through the window, uninvited and unlawfully, until she was allowed to return to her home the following morning, the complainant was not permitted to act of her own free will.  She was taken to the river at knife‑point where Tokwe and the accused raped her.  From there they took her to the accused’s home, forced her to sleep in the same bed as them, and raped her again.

[59]	The accused was an unimpressive and dishonest witness.  As I have said, he did not hesitate to adjust his story as the circumstances suited him and labelled the complainant a liar.  He knew she had been helpless to resist the attentions of Tokwe and himself.  I do not find his description of events to be reasonably possibly true.  It is patently false and a fabrication.  I reject his story.  The evidence establishes that in addition to associating himself fully with the actions of Tokwe he shared a common purpose with him.  He willingly collaborated with Tokwe from the outset and in everything that transpired thereafter.  He was a co‑perpetrator, raping the complainant at the river and again at his home.

Verdict
[60]	I am accordingly satisfied that the evidence adduced by the State proves beyond a reasonable doubt that the accused committed both acts of rape and should be convicted thereof.  In the result, I find the accused guilty of both counts of rape as set out in the indictment.

___________________
Y EBRAHIM
JUDGE OF THE HIGH COURT, BISHO	11 JULY 2006

Heard on:	22 March 2006, 23 March 2006, 24 March 2006, 22 May 2006,
		23 May 2006, 24 May 2006 & 5 June 2006.
 	
Judgment delivered on:  		11 July 2006

Counsel for the State:					Mr J Kristafor

Counsel for the Accused:	Mr G S Mhlaba

Gonyela.CRJ