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IN THE EASTERN CAPE HIGH COURT
BHISHO

CASE NO. CC22/2009

In the matter between:

THE STATE

and

THAMSANQA DABI 	ACCUSED

JUDGMENT

DHLODHLO ADJP:

1.	The accused, a male person, aged 43 years, is charged with rape, in contravention of s3 read with ss1, 56(1), 57, 58, 59, 60 and 68(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act.

	It is alleged that on or about the 16th day of August 2008 at or near unit nine in Mdantsane he unlawfully and intentionally committed an act of sexual penetration with the complainant S[…] G[…], a minor female person, by penetrating his genitals or any other object into the genital organ of the complainant.

2.	The charge is accompanied by a warning in terms of s51(1) of the Criminal Law Amendment Act, relating to minimum sentences, as the victim was under the age of sixteen years, if he is convicted.

3.	The accused pleaded not guilty to the charge.  In his testimony he denied having had sexual intercourse with the complainant on ever having been with her in a house.

4.	Evidence adduced by the State may be summarised as follows:

On 16 August 2008 the accused called the complainant who is now eight years old into a next-door house at unit nine in Mdantsane in order to give her polony.  She alone went to him in the house.  The accused gave her polony which she ate and finished.  According to the complainant the accused called an – eleven – year - old boy by the name of A[…]1  into the house.  A young child A[…]2 and others followed A[…]1 into the house where the accused was.  The complainant was also present inside that house.  The children viewed television inside the house while the accused was in the kitchen.  According to the complainant and A[…]1 there was no other adult person in the house.

5.	Later the accused who the complainant and A[…]1 refer to as Thami moved from the kitchen where he was to where the children were viewing television.  He ordered A[…]1 and other children to walk out of the house.  The complainant said that when she wanted to walk out with other children, the accused stopped her from moving out of the house and ordered her to sit on a bed.  (While the complainant was telling the Court what happened she would sometimes remain silent for about one minute.  She testified through an intermediary through electronic means from a room adjacent to the court room).  The complainant said that the accused undressed her of her pant and panty, undressed himself and then throttled her.  The complainant said that the accused was wearing a bikini.  State Counsel asked her what the accused did with the bikini, she remained silent and later said ‘No’.  State Counsel asked her to demonstrate how the accused throttled her.  She remained silent for about one minute and did not demonstrate.  State Counsel asked her again to demonstrate how the accused throttled her.  She remained silent.  Later she said that she remembered how the accused throttled her.  She coughed as if she was suffering from flu.  She looked up to the roof of the room but did not demonstrate how the accused allegedly throttled her.  She later said that after the accused had throttled her he said that he would kill her if she reported the incident.  State Counsel asked her again: ‘What else did he do to you?’  She remained silent for about one minute and coughed.  She later said that the accused did dirty things she referred to as ‘izimanga’.

6.	She was asked on what part of her body ‘dirty things’ were done.  She remained silent for about one minute.  She later touched the lower part of her body in the region of where genitals are situated.  She said that she was lying on her back on the bed and that the accused was also lying on the same bed.  She further said that the accused used his male organ as he was lying on his stomach.  When the accused finished doing ‘dirty things’ on her he put on his clothes and threatened that he would kill her if she reported the incident to anyone.

7.	The complainant said that she later reported to her grandmother D[…] G[…] what the accused had done on her.  This fact was confirmed by D[…] G[…].  She (D[…]) said that she did not ask the accused about the allegation.

8.	The complainant said that no other person did ‘dirty things’ on her.  She said that she had known the accused when she was young and that she heard from her grandmother who the accused was.  The complainant later said that she first saw the accused on 16 August 2008 and that she had not visited the house where the accused allegedly did ‘dirty things’ on her.  She agreed that there are certain people who occupied the house, including male ones.  She said that the incident occurred on a week day which was a school day.  Later the complainant was asked under cross – examination:

‘You said that dirty things were done to your body?  Her answer was:
‘He did not do dirty things on my body.’
She was asked:
‘What did your grandmother ask you?’
She remained silent for about one minute and later nodded her head.
She said that her grandmother asked her where she was from when she returned home.  She further said that the grandmother asked her whether she had visited Thami’s home.  Her response was that she and A[…]1 were seated near the door.  Before her grandmother asked her these questions she had told her that, as they were playing, Thami called A[…]1 and she followed.  Responding to the question:
‘The identity of Thami was suggested to you by your grandmother.’  She answered in the affirmative.  Later she said that she did not know the man who offered her polony.

8.	A[…]1 G[…], a boy who is eleven years old, also testified through electronic means and through an intermediary.  He said that he first knew Thami (the accused) in 2006 and that he would see him only on Saturdays.  He said on 16 August 2008 the accused (Thami) called them from the house which is next – door to that of the complainant.  He did not know why Thami called him.  He, the complainant and other children viewed television inside the accused’s house.  Later the accused ordered them to get out of the house.  It appears that no reason was given why they had to vacate the house.  When they moved out the accused grabbed the complainant.  The accused ‘chased’ him (A[…]1) away.  According to A[...]1 the accused gave him (A[...]1) a key and asked him to lock the door from outside while he and the complainant remained inside the house.  A[...]1 said that he locked the door and kept the key.  He and other children, except the complainant, played outside the house.  After about 30 minutes the accused called A[...]1 from inside his (accused’s) house and asked him to open the door.  A[...]1 said that he personally unlocked the door, after which the complainant walked out of the house.  A[...]1 gave the key back to the accused.  He said that the complainant complained of abdominal pains and groaned (wayencwina).  According to A[...]1 the incident occurred on a Saturday.

9.	Under cross – examination A[...]1 said that he was scared to report the incident to elder people.  When it was put to him that the complainant did not say that he (A[...]1) locked the door he said that he did not know why she did not say it.  A[...]1 said that he locked an outside door.  He said that he told the police all he knew about the case but he said that the statement he made to the police was not read back to him.  He said that the accused was not the owner of the house he called them into and that the owner was not there on that day.

10.	Dr Nozibongo Ndzamela is a medical doctor who examined the complainant on 18 August 2008.  She compiled a report which was later handed into Court as ‘exhibit B’.  Dr Ndzamela observed recent hymenal injury.  There was no anal injury.  Injuries could have been cased between 48 hours and 5 days from 16 August 2008.

11.	The accused denied all the allegations.  He believed that D[…] G[…], the grandmother of the complainant, framed him and that she had schooled the complainant and A[...]1 to make false allegations against him.  He said that D[…] G[…] was once employed as a domestic helper by his mother.  When his mother retired from her employment, she terminated G[…]’s services.  The accused suspected that D[…] did not like him because she was once a friend to the accused former girl friend.  He said that he quarrelled with that girl friend over their child because he did not want to release the child to her.  He suspects that D[…] has an axe to grind with him because of these reasons.

12.	Limpho Pholo is the owner of the house in unit nine in Mdantsane in which the alleged rape was committed.  He knows the accused.  He started socialising with him before 1994.  During August 2008 Pholo was on holiday and was away from Mdantsane.  He left the accused and other friends to look after the house but he left the key to the house with the accused who would be responsible for opening and locking the house.  The accused would not stay there but at his own home.  When Pholo returned to his house the accused was no longer there.  He said that his bedroom was not lockable when he was away.

13.	The complainant was not consistent in her testimony.  This is possibly because of her age, weak memory or other reasons.  What is surprising is what A[...]1 told the Court that he locked the outside door at the request of the accused and kept the key while the accused and the complainant were inside the house.  That the accused later called A[...]1 from inside the house to open the door from outside is also surprising.  A[...]1 did not report the alleged incident to elderly people.  He appears to be an intelligent boy.  To the police, according to the statement he made, he said that he did not know the man who called the complainant from Mr Pholo’s house.  In his police statement A[...]1 said nothing about locking the door to the Mr Pholo’s house.  The police officer who took the statement of A[...]1 was not called as a witness.

14.	Having considered the evidence in its entirely I am not convinced that the State succeeded to prove the guilt of the accused beyond reasonable doubt.  I accordingly find the accused not guilty of rape or a lesser offence.

A E B  DHLODHLO
JUDGE OF THE HIGH COURT
ACTING DEPUTY JUDGE PRESIDENT
02 DECEMBER 2009

Heard on:	21, 22, 23, 30 October 2009
	and 10 November 2009

For the State:	Mr Willemse
For the Defence:	Mr Silandela