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 
(EASTERN CAPE DIVISION, GRAHAMSTOWN)     	CASE NO: CC 92/2014 

In the matter between:

THE STATE

vs

MASIXOLE MENTE						         Accused 1
BONGANI QEBEYI							         Accused 2
ODWA FRANS							         Accused 3

JUDGMENT

MAKAULA J:

[1]	The accused in count 1 are charged with and pleaded not guilty to robbery with aggravating circumstances, it being alleged that on or about 19 April 2014, at or near Amalinda, East London, they unlawfully, intentionally and through the application of force and violence, took from S[…] M[…] R200.00.

[2]	In count 2 accused 2 is charged with and pleaded not guilty to pointing a firearm, it being alleged that at the date and place mentioned in count 1 he unlawfully and intentionally pointed an object at the said S[…] M[…] which object was likely to lead her to believe that it was a fire-arm.  Furthermore, accused 2 faces a charge of rape in that upon or about the same date, time and place mentioned in count 1, he unlawfully and intentionally committed acts of sexual penetration with the complainant S[…] M[…] by having sexual intercourse with her more than once and against her will.  Accused pleaded not guilty to this count as well.  

[3]	Accused 3 is charged with and pleaded not guilty to rape it being alleged that on the date and place mentioned in count 1 he unlawfully and intentionally committed an act of sexual penetration with S[…] M[…] by having sexual intercourse with her without her consent and against her will.

[4]	In lieu of his plea explanation, accused 1 handed up a warning statement made to Detective Sergeant L Gwadiso on 14 May 2014 at Cambridge Police station in East London   for purposes of this judgment I find it prudent to refer to the statement verbatim.  The statement reads as follows;

“I am an adult African male aged 33 residing at Amalinda Forest Informal Settlement.

I deny the allegations against me.  On the night in question I was with Stingo and Masixole walking on the street looking for a shebeen.  On the way by Tera’s way to tavern we met an unfamiliar lady and while I passed her Stingo drew a firearm and pointed her with a firearm.  (Sic)  When she screamed Stingo told her to say is coming from her friends who were shouting for help running.  (Sic)
We left with her to the bushes and whilst we were at the bridge Odwa raped the lady whilst Stingo had the handbag of this lady with him.  I did not search the bag.  Stingo did.

After Odwa raped her we proceeded together.  Stingo was going with the lady and I followed backwards with Odwa.  Stingo took other direction together with the lady and I went with Odwa.  On the way we could not see them and thought of going to check at Stingo’s shack where we found them there.  Odwa left to buy drugs and I left.  When I was there I noticed that Stingo was wearing his BVD ready to sleep and he said I must go.  He told me that he will make a plan for this lady to sleep on the floor but he will not touch or do anything wrong to her.  I then left.  (sic)

I never attempted to rape.  I told them that it is not our motto to rape and I will not take part.  I only got R10 from Stingo.  I did not ask him where he got it from.”  (sic)
 
 [5]	Accused 2 in his plea explanation denied that he robbed the complainant and admitted having had consensual sex with her on two occasions that evening.          

[6]	Accused 3 in his plea explanation denied that he robbed the complainant nor raped her.  

[7]	S[…] M[…] (S[…]) is a 26 year old who is not married and has two children aged 5 and 6 years respectively.  She is working for M[…] P[…] in Vincent, East London.  On 19 April 2014, after work, she visited her colleague, X[…].  She was to spend the night at X[…]’s home at Amalinda Forest (Amalinda).  At about 11pm they decided to go out to Tera’s Tavern which was in the area.  She was visiting Amalinda for the first time that afternoon.  She did not know the area nor its people. 
[8]	At Tera’s Tavern they remained until after 12 midnight after which they decided to go to another tavern.  She drank two (2) glasses of wine at the tavern.  She did not become drunk. 

[9]	On the way, they came across a group of ANC people singing songs.  They turned to join the group.  As they were turning, she remained behind tying her shoe laces.  Whilst still kneeling doing so, she had a sound of a fire-arm being cocked close to her head with orders that she should leave with the person cocking it.  That person later turned out to be accused 2, who held the fire-arm to her left side of the head above her left ear.  They were three.  They pulled her to a different direction to the one taken by the group.  They ordered her not to speak or scream and proceeded with her towards a forest.  Accused 2 then changed and pressed the fire-arm against her waist.  A person who later turned out to be accused 3, held and dragged her by the right hand.  Accused 1 was following from behind her.    

[10]	She heard her friends screaming and following them.  The accused told her to tell them to turn back lest they will shoot them.  She shouted back telling them that everything was fine they should not follow them.  She allegedly did so because she was afraid that the accused would shot and kill them.

[11]	They took her to a bushy area where there was a small bridge, as depicted in the photographs.  On their arrival at that spot, accused 2 took the bag she was carrying.  Accused 2 further demanded that she should give them the items she had.  Immediately accused 2 cocked the fire-arm.  She was so scared and trembling to an extent she felt the urge to urinate.  She could not hold herself and asked from them that they should allow her to urinate.  They agreed.  She lowered her pants and panties.  While squatting, urinating, accused 3 came to her, grabbed her and ordered her to bend forward.  He penetrated her with his penis from behind.  While raping her, accused 2 came and removed him and told him that their purpose was to rob and not to rape.   

[12]	Accused 3 took her t-shirt which was in her bag, wiped her and himself and threw it on a grassy area next to that small bridge.  At that stage she was sobbing.  The accused started arguing among themselves in Tsotsi Taal.  When accused 3 was raping her, he was busy fondling her and touching her pants.  When she stood up to dress, she realised that the R200.00 that was in her pocket before she urinated was no longer in her pocket.  They moved to another footpath where accused 2 suggested that they should split into two groups.  He went with her to another direction.  After a long walk, they came across accused 3.  Before they met accused 3, accused 2 told her that he would convince the others not to kill her.  Accused 2 and 3 again conversed in Tsotsi Taal.  He could hear accused 2 telling accused 3 that she gave him more money.  Accused 3 suggested that she should be killed as he had already raped her.  Accused 2 seemed to have convinced accused 3 otherwise because they proceeded to an informal settlement where they entered a certain shack.  Whilst still in the streets, X[…]’s brother, A[…] appeared and approached them.  On realising it was him, she looked away from him because he feared that if the accused realised they knew each other they would probably kill them.  They asked him what he wanted, he told them that he was looking for a house which sold loose cigarettes.  They ordered him to leave.    

[13]	They proceeded to a certain shack where they ordered her to take a seat at a seating room area.  They produced and crushed a tablet.  They filed a bottle-kop with dagga and poured the tablet, lit it and smoked it.  After smoking, accused 2’s eyes turned red and he became aggressive.  He ordered her to go and lie on the bed which was in an adjacent room.  She complied.  Accused 2 came, put the fire-arm under the pillow, pushed her and undressed her.  She raped her after which he fell asleep.  She remained seated on the bed because she was afraid if she ran the accused would wake and shoot her.

[14]	Accused 2 woke up after sometime and forcefully had sexual intercourse with her again.  At that stage it was towards dawn.  Accused 2 refused that accused 3 should have sexual intercourse with her.  Accused 2 and 3 then told her to leave.  She asked them to take her to the spot where they found her because she was not familiar with the place and would get lost especially because there were many shacks in the area.  They agreed and they walked through the shacks.  Whilst still walking, they saw car lights which were at a distance.  They told her that where the car was, was the area they had found her.  He told them that he had no money to catch a taxi to Mdantsane.  Accused 2 gave her a sum of R20.00 and uttered words to the effect that “abakhe babonana bawuphinde babonane” literally meaning “those who once met would likely meet again in future.” 

[15]	She went to X[…]’s home and reported to X[…]’s mother who phoned X[…] and her cousin to say that they must come back she had arrived.  The matter was reported to the police and she was taken to hospital for the J88, DNA specimen and treatment.  An identification parade was held and she was able to point out the accused.  She testified that though she did not know them before, she was able to see and identify them from the spot and next to the bridge because there was ambient light from the shacks.  It was worse with accused 2 and 3 because she was with them for a long time at the shack and there was an electric bulb which was at all times on shining at the seating room where they sat for a long time.  Even at the time accused 2 and 3 were accompanying her in the morning it was becoming light as it was at dawn.  She identified accused 3 because she was wearing dreadlocks and had no front teeth.  She described accused 2 to the police as short, dark with long hair.   

[16]	N[…] M[…] is the cousin of the complainant.  She was with the complainant that evening.  She confirmed the evidence of the complainant in all material respects about what took place in her presence.  She confirmed that on meeting the ANC group, they turned to join it.  The complainant remained behind tying her shoe laces.  She heard one T[…] telling her that her friend was fighting with her boyfriend.  She told her that it could not be because the complainant was visiting that place for the first time that day.   
[17]	She saw three (3) men pulling the complainant.  She shouted calling others telling them about what was happening.  She called out to the complainant who responded by saying she was fine they must go.  She did not want to leave because complainant’s voice was cracking as if she wanted to cry.  With the help of others they gave chase but could not find nor see where the complainant and the three (3) men went to.  She hurried and went to report to his brother, Asanda.  They, with the help of others, set out to look for her but in vain.  Asanda came back and reported to her that he met the one Mancane with four men.

[18]	She went to her mother and to the police station.  It was only in the early morning that her mother called to inform her that the complainant had arrived.  

[19]	N[…] N[…] M[…], mother to N[…] testified that the complainant visited her home at Amalinda for the first time that afternoon.  Complainant was with her daughter and others.  In the early evening they went out to enjoy themselves.  She was awaken up by N[…] who was distraught.  N[…] reported to her that the complainant was abducted by three (3) men and they looked for her in vain.  She gave her money to go and report the matter to the police.  She came back and later left to charge complainant’s cellphone at a certain homestead.  While preparing for work, she saw the complainant amongst the houses walking slowly towards her house.  Complainant was crying and could not talk.  She tried to calm her down.  After a while the complainant reported to her that she was forcibly taken by three (3) men who later raped her.  She could not contain herself but cried on realising how hurt and devastated the complainant was.  Mrs M[…] even cried as she testified about the pain the complainant was going through at that juncture.  

[20]	Mawande Ngxanga testified that he met with accused 1 in company of three (3) other persons on the evening of the incident (that was in the vicinity of the school).  Accused 1 and the others were walking in single file.  The last one was holding a fire-arm in his hand.  Immediately thereafter, he came across N[…] enquiring whether he did not see four people in the direction he came from.    He told her that he had just met them and amongst them was accused 1.  He turned back and joined them in searching for accused 1 and his group.  They could not find them.  He testified that there is sufficient light at the bridge at night which is cast by the electric lights from the shacks and a Fish farm which is near the bridge.

[21]	The state case was closed.  Accused 1 elected not to testify and closed his case.

[22]	Accused 2 testified that on the night, he was walking with accused 1 and 3 after 12pm going to buy liquor and drugs.  They met a group of people and whilst walking behind it, he saw the complainant walking behind the group.  He approached her and enquired where she was from.  Complainant told him she was from Mdantsane and was visiting the area for the first time.  He proposed love to her.  The complainant accepted it and told him that her friends wanted to hook her up with a man she was not interested in.  He, however, revealed that under cross-examination.

[23]	As they were walking, accused 1 and 3 were in front.  The group of people turned to enter Tera’s Tavern.  He proceeded with her to Duma’s Tavern where he remained next the gate while accused 1 and 3 got in to buy liquor.  Thereafter, they proceeded to the shacks to buy drugs.  Having done so, they proceeded to his shack whereat they drank liquor and smoked mandrax.  The complainant was drinking beers.  After a while, complainant went to sleep in his bedroom.  He joined her later.  The complainant slept on her panties only.  On joining her he asked that they make love and complainant agreed and they slept twice that evening.  Early in the morning the complainant asked him to accompany her to the spot where they met as she wanted to be early for work.  Indeed he and accused 3 who spent the night at the dining room accompanied her.  When closer to the spot they pointed at it.  He gave her R20.00 for transport and told her that those who once met would likely meet again.  He parted ways with her.  He proceeded with accused 3 to buy liquor and drugs.  

[24]	Accused 3 confirmed somehow the version of accused 2 as to how they set out to buy liquor and drugs and how they came across the complainant.  He testified that at all times he and accused walked in front of accused 2 and the complainant.  He never stopped at the bridge.  He crossed it well ahead of accused 2 and the complainant.  He denied that he raped the complainant nor did he want to rape her again at accused 2’s shack.  He testified that at the shack they smoked dagga and drugs meanwhile the complainant was drinking beers.  After a while complainant left them at the dining room going to sleep.  She was later joined by accused 2.  Early in the morning accused 2 and him left to buy liquor and drugs.  They left in the company of the complainant who asked them to take her to the spot where they met so that she would be able to trace her way to the house which she had visited.

[25]	Mr McChonnachie, on behalf of the accused, applied for an inspection in loco which I refused with reasons to follow.  I shall deal with them later in this judgment.  He then informed the court that with the assistance of police in East London, he was able to attend the scene and took photographs.  He applied for the recall of the complainant so as to put to her his observations of the scene where the incident occurred.  For obvious reasons, that was opposed by the state because that would be tantamount to him testifying from the bar and worse doing so in cross-examination.  I also refused that application and that could lead to problems where they to disagree with the complainant.

[26]	 He thereafter, on behalf of the accused 3 called one of the police officers who escorted him to the scene.

[27]	Warrant Officer Xolisile Hlulani confirmed that he escorted Mr McChonnachie on his request to the crime scene.  He did not go there for purposes of observing the lighting or anything pertaining to this matter.  However, he was able to observe that the shack dwellings were about 300m from the bridge where the robbery and rape by accused 3 allegedly took place.  He testified that there were no lights in the vicinity of the bridge.  However, he testified that at the time they visited the bridge there was still sufficient day light even though it was overcast because it had rained.

[28]	  He testified that there were no lights from the Fish Farm however when asked further it became clear that he did not observe whether there was parameter fence around the fish farm on the side of the bridge.  He opined that the street lights on the Amalinda main road would not provide light on the portion of the bridge.

[29]	Mr McChonnachie took photographs of the scene.  It is apparent that trees have grown especially foliage.  That can be seen when one compares photos 1, 2, 3 and 4 of Exhibit H i.e. those taken by Mr McChonnachie on 24 February 2015 and photos 15, 16, 17, and 18 of Exhibit B.  Photos 15 and 16 are taken from the same direction with photo 2 of Exhibit H.  One can hardly see the bridge from photo 2 because of the foliage and the trees which have grown closer from each side of the footpath.

[30]	The evidence between the state and the defence is almost in all fours but for the following factors;

30.1	Whether there was sufficient light to enable one at the time to observe the accused from the spot where they met up to the bridge and especially at the bridge;
30.2	Whether accused 1 acted with common purpose with accused 2 and 3 when she was robbed at the bridge.

[31]	The evidence of the complainant cannot be faulted.  She gave a good account of what happened to her.  She did not show any emotions and answered questions clearly and frankly.  Her demeanour was impeccable and never contradicted herself.  Her credibility cannot be faulted as is apparent from the submissions of the defence.  Her evidence finds corroboration from the evidence of N[…] who was also a good witness.  N[…] confirmed the evidence of the complainant in all respects especially the stage when she parted ways with the complainant and the reasons why she had to organise a search party to assist her in finding the complainant.  The evidence of N[…] is corroborated by Mawande Ngxanga in that he met her in the small hours of that morning looking for the complainant.  He also joined in the search but they could not find her.  Mawande’s evidence confirms the evidence of the accused in that they were four when they walked to the shack of accused 2.  Mawande confirmed that in the early hours he met with accused 1 in the company of three people.  One of those people was carrying a fire-arm.  He could not make out whether one of those people was a woman or not.  If Mawande wanted to lie, I assume, he could have easily said one of them was a woman and got away with it.  I, therefore, cannot find any reason for him to say the other was carrying a fire-arm.  In the absence of any evidence from accused 2 and 3 that in the early hours of that morning accused 1 was never in their company especially when they were walking with the complainant in that vicinity where Mawande alleged he met him, I have no reason therefore not to assume that it was them in the company of the complainant.  If I am correct, that would confirm the evidence that accused 2 was armed with a fire-arm that day.  However, if I am incorrect in that assumption, that is not the only evidence I rely on in arriving at the conclusion I shall.

[32]	The evidence of Mrs M[…] corroborates the evidence of the complainant pertaining what occurred from the afternoon to the following day when complainant arrived at her house.  

[33]	She noticed that she was in a distraught state and had been crying and could not walk and seat properly.  That led her to cry because of what the complainant was going through.  I believe complainant would be a good actor to have feigned such state in which she appeared to be in to Mrs M[…].

[34]	As I now understand the argument especially of Mr McChonnachie on behalf of accused 2 and 3, it cannot be doubted that complainant was forcibly taken away from her friends while tying her shoe laces hence the search for her by N[…], Mawande and others.  I shall revisit the facts regarding how she was taken.  She was on her loaches tying up her laces when a fire-arm was cocked and placed against her head and an order to leave with them.  She was also pulled away by them.  She was surrounded by the accused and led to the bridge at gun point.  Orders to comply with were given on the way to the bridge, like not to scream, to say to her friends all was well they should not follow her.  The accused walked with her for a long time in a bushy area according to her.  At the bridge the accused took her bag, tipped it over and went through the items from the bag.  They demanded further items from her. 

[35]	The complainant doe s not know how she parted with the R200.00 from her pocket except to assume that it must have been taken by accused 3 because as she was urinating, he came to her and searched her.  It is clear therefore that the accused did not take the R200.00 from her.  Mr McChonnachie argued that it could be that during the search by accused 3 the money fell off.  I also cannot rule that possibility out.  Complainant may be telling the truth in saying the money was there before she was accosted by the accused, but in the circumstances, it cannot be the only conclusion that the money was taken by accused 3.

[36]	Mr Charles for accused 1 argued that the state failed to establish a case against accused 1 because no role was played by him.  He submitted that he cannot be convicted merely because of his pretence at the scene.  With respect the evidence does not establish that, because the complainant testified that she was accosted by three (3) men who at all times together until at the late stages of her ordeal before accused 1 broke away from the group.  In her evidence she kept on saying “they dragged her, ordered her to respond to her friends by saying she is fine they must turn back, they demanded items from her to an extent that they searched her but could not find anything of value.”  The ungainsaid evidence is that the complainant was in the company of the accused and had to walk a considerable distance to the bridge under gun point, so to speak.  Accused 1 did not leave the group.  According to accused 3’s evidence which somewhat corroborates that of complainant left when accused 2 and 3 in the company of complainant were going to smoke drugs.  I am unable to find that he was not acting in common purpose with the group up until he separated with it.

[37]	The thrust of Mr McChonnachie’s argument is that complainant could have made a mistake to say she was raped by accused 3 at the bridge because of poor lighting at the bridge.  With respect the objective evidence before me does not support that argument. 

[38]	Accused 2 testified that he could see whilst they were at the bridge because he saw the complainant while urinating.  He was about 5metres away from her.  Even accused 3 did not testify to say one could not see at the bridge.  He only testified that he did not stop at the bridge contrary to the evidence of accused 2 that at the time complainant was urinating they waited at the bridge smoking.  Complainant and Mawande testified that there was ambient lighting from the shacks and fish farm.  Complainant testified that it was accused 2 who removed accused 3 from her.  Furthermore, it was accused 3 who after they had reunited wanted to kill her because he had raped the complainant and accused 2 refused.

[39]	The error by complainant that she stated in her first statement to the police that the person who raped her did not go to the shack is of no moment.  Complainant admitted in her subsequent statement to the police.  She testified that at the time she was not well emotionally and psychologically because the incident had just occurred.  However, she had mentioned that the person who raped her at the bridge was wearing dreadlocks and had no front teeth which met the description of accused 3.

[40]	It has to borne in mind as correctly conceded by the defence that at the time they were at the bridge, the accused and complainant had been in each other’s presence for a long time and had gone through some streets which had lights as can be seen from the photographs.  It is even worse that accused 3 would have been too close to the complainant in order to penetrate her.  The complainant did not only observe or identify the accused at the bridge to prove that it was not too dark at the bridge.  She saw the accused when they took out the contents of her bag, when accused 3 removed her t-shirt and subsequently throwing it away etc.  I, therefore, reject the argument that there could have been a mistake in the identification of accused 3 as the person who raped the complainant.

[41]	The concession by the defence that the evidence of accused 2 should not stand in the light of the states’ evidence is wisely made.  The evidence of both accused 2 and 3, especially that of the former is incredible and improbable.  Accused 2 alleges that he was accepted and loved by the complainant on his mere saying he loved her.  That was after 12 midnight in a dark spot hardly a second or minute after they had met under those circumstances.  The complainant was so sweet towards him to an extent that they walked leisurely through the streets, footpaths and bushes as depicted by the photographs.  He portrayed himself as a gentleman who did not want to have sex with the complainant.  He eventually had sex with the complainant because complainant led him to do so.  That can never be believed in the light of the evidence of the complainant, N[…], Mawande and Mrs M[…].  I reject it as a clear fabrication which seeks to undermine the intelligence of people.  Accused 2 had to come up with this lousy defence because he had to explain how his semen was found in the vagina of complainant.  The results of the DNA are conclusive and accused 2 had to come up with an explanation. Unfortunately his explanation cannot withstand the credible evidence before me.

[42]	As submitted by Mr McChonnachie and conceded correctly by Mrs Turner for the state, I cannot find that the state prove robbery but attempted robbery in respect of the three accused.  

[43]	The decision to hold an inspection in loco is discretionary to the court.  It is clear that such discretion has to be exercised judiciously.  As Mrs Turner, correctly in my view, submitted the inspection would not assist me because I only have to have regard to the lighting and circumstances which prevailed as at the night complainant and the accused were at the bridge.  That would be impossible to achieve. 

Consequently I make the following finding. 

1.	Accused 1 is found guilty of attempted robbery with aggravating circumstances.

2.	Accused 2

2.1	Is found guilty of attempted robbery with aggravating circumstances;
2.2	Is found guilty of Rape (Count 4).
2.3	Accused found not guilty of count 2.

3.	Accused 3:

3.1	Is found guilty of attempted robbery with aggravating circumstances;
3.2	 Is found guilty of Rape (Count 3).

______________________________
M MAKAULA 
JUDGE OF THE HIGH COURT	

Counsel for the State:		Adv N Turner 

Counsel for Accused 1:		Mr Charles
Counsel for Accused 2 and 3:	Adv McChonnachie

Heard on:	23, 24, 25 & 26 February 2015

Delivered on:				26 February 2015