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IN THE HIGH COURT OF SOUTH AFRICA
BISHO

							   CASE NO.  CC25/2005

In the matter between:

THE STATE

and

LINDA MVANDABA                                      	               ACCUSED

JUDGMENT

DHLODHLO ADJP:

The accused, a 42 – year – old male person is before a Judge sitting with two assessors.   He is charged with one count of Rape and two of Assault, as follows:

COUNT 1  (RAPE)

It is alleged that on or about the 19th day of March 2004 at or near 7295 Unit three in M. he unlawfully and intentionally had sexual intercourse with S.K.,  a 2 – year – old female child,  without her consent.   The charge is accompanied by a warning that, if he is convicted, the provisions of section 51(1) of the Criminal Law Amendment Act 105 of 1997, relating to minimum sentences, will be applicable as the victim is a girl under age of 16 years.
COUNT 2 (ASSAULT)

It is alleged that on or about the same date and at the same place as on count one he unlawfully and intentionally assaulted L. K. by slapping in her face.

COUNT 3 (ASSAULT)

It is alleged that on the same date and at the same place as on count one he unlawfully and intentionally assaulted N. K. by slapping her in her face.

He pleaded not guilty to the three counts, adding that in respect of the first count, he suspects that he is being framed by the mother of the victim because she was after his money but she did not get it.   In respect of counts two and three he denied that he slapped the complainants.

Advocate Mtengwana appears for the State and Advocate Mtini appears for the Defence.

Advocate Mtengwana informed the Court that Dr Nyilenda who examined the victim was out of the Province and that his whereabouts are unknown.   She called Dr Jerome Peter Boon to interpret the report which was compiled by Dr Nyilenda.  Dr Boon was of the opinion that bruising on the urethral orifice, on the labia majora, labia minora was suggestive of sexual abuse.   He said that it was not normal that a bruising would be on the genitalia and that sexual interference is the most probable cause.   He said that there was no internal examination of the genitalia and that a gentle examination could not have caused bruising.   Dr Boon said that the swelling on the labia majora suggested that the bruise was fresh.   The victim was examined on 21 March 2004.    Dr Boon did not say whether or not the victim’s genitalia had been penetrated.

N. K. is the mother of the victim.   During 2004 she was a lodger at 7295 unit three in M..   The accused said that he owned the house.   K. said that she paid R50,00 per month as rental for occupying the kitchen with her two daughters,   including the victim.   She is hard of hearing and receives a disability grant plus a child grant in respect of each of her daughters.   Her evidence may be summed up as follows:

During the night of the day in question she and Boyce Yiliwe were in the bedroom of the accused.  Her two daughters were sleeping on a bed in the kitchen.   The three were drinking beers in the bedroom which the accused had bought.   The accused had invited her into his room after he had asked her whether or not she was lonely.   When K. stood up preparing to go to sleep in the kitchen with her children,   the accused locked the bedroom door from outside, leaving K. and Yiliwe in his (accused’s) bedroom.   The two knocked on the door from inside the bedroom but the accused would not open for them.  It was about 22h00 – 23h00.

While they were inside the bedroom Yiliwe heard a child cry and he drew K.’s attention to the crying voice.   K. listened and recognised the voice as that of the victim.   But they could not walk out of the room because the room door was locked.   Later the accused opened the bedroom door from outside.   K. jumped out of the room and saw the accused in the passage pulling up his pants.   The victim was crying at that stage.   When K. got to the victim she observed that she was wet on her private parts.   Her dress had been pulled up to the rib region of her body.   There was an offensive smell from the substance on the victim’s private parts.   When she went to bed the victim was not wearing panty.   K.’s other daughter L. was asleep and did not wake up.  K. lulled the victim to sleep.   She saw a leather belt in the kitchen.   She inquired from the accused what he had done to her children and he answered saying that he had been beating them up and added angrily:  
			“What can I do to your children?”
The accused then hit her several times in her face with a fist.   She dodged some blows,  with the result that only one of the accused’s blows landed on the frame of a window.   His arm was swollen.   She said that she ducked when the accused wanted to hit her face and that one blow landed on her back.   After the accused had hit her he ordered her to collect all her items and leave.   She took her two children to her neighbour’s place where they slept.   She slept in the kitchen.   On the following morning she asked L. what had happened on the previous night.   L. said that she had been smacked in the face by the accused.   K. then proceeded to the police station where she reported the incident.   She was accompanied by her two children.   They were referred to Cecilia Makiwane Hospital where the victim was subsequently examined by a doctor.

K. did not sustain visible injuries on her body as a result of being hit by the accused.   She consumed liquor on that evening but she was not drunk.   The accused had received some money for injuries he had sustained.   K. said that the accused and Yiliwe drank liquor and used drugs.   K. said that she had no love relationship with the accused and that she did not want his money.   She said that before the accused locked them into his bedroom, his belt was around his waist.

Boyce Yiliwe corroborated K. in material respects concerning events of the evening of 19 March 2004.   He said that the accused was his uncle and that they are on friendly terms.   He said that   the accused and N. K. were moderately drunk.

L. K. is seven years old.   She testified through an intermediary through electronic means from a room adjacent to the court room.   She could not see the court room but she and the intermediary were seen on the screen.   She said that on a certain night she was in the kitchen where she was sleeping and that the accused smacked her once on her cheek.   She said that, after smacking her, the accused said that she must cover herself with a blanket.  She did as ordered and she was unable to see what happened.

The accused’s version is briefly as follows:
He lives at 7295 unit three in M..   He has lived there since 1976.   During the evening of 19 March 2004 he, Yiliwe and K. (the victim’s mother) were in his bedroom consuming liquor which he had bought.   He said that he saw K. also known as “Gcoz” inserting her hands into the pockets of his Bermuda pair of trousers.   He asked her what she was doing whereupon she answered saying that he was used to giving girls money and that he must give her money as well.   At that stage “Gcoz’s” children were sleeping in the kitchen.   He went out to stop the children from crying.   He hit on the bed with a belt and the children kept quiet.   He said that he took off his belt from his waist in his bedroom when he was walking to the kitchen where children were.  After hitting with a belt on the bed he returned to his bedroom.   He said that in the kitchen he spent less than three minutes.   He denied that he hit K..   He said that he was drunk and had no energy to hit her.   Later he said that he does not drink too much liquor and that he smokes cigarettes and dagga.   He denied that he locked his room door from outside.   He said that K. wanted to sleep in his bedroom with him and that he could not sleep with her in the presence of Yiliwe.  He said that he had slept with K. in his bedroom on previous occasions because they had a secret love relationship.   He denied that he raped the victim.   He said that K. was after his money.   He further said that he had earlier removed an amount of R3000,00 from his Bermuda pair of trousers.   He said that he was moderately drunk on the evening in question and that he understood what was happening.

The evidence against the accused in respect of the rape charge is of circumstantial nature.   K. and Yiliwe corroborated each other on material respects.   They were consistent.   To a certain extent, the accused supported their evidence.   There is no doubt that the accused locked his bedroom door from outside while Yiliwe and K. remained inside the room and K.’s children were sleeping in the kitchen.   For some time Yiliwe and K. knocked on the door from inside the room but the accused would not open for them.   Later they heard a child cry but the accused could not open the bedroom door.   K. was desperate inside the accused’s bedroom intending to walk out to investigate the cry in the kitchen.  Both Yiliwe and K. were adamant that the accused had his belt around his waist when he went out of his bedroom.  According to Yiliwe, when he left the bedroom,  the accused said that he was going to the toilet.   The accused was seen by K. pulling his pants up in the passage after he had moved away from the kitchen.   The victim’s dress had been pulled up to the rib region of her body and there was some substance on her private parts which had an offensive smell.

L. said that the accused hit her with an open hand ordering her to cover herself.  It is obvious that the accused did not want L. to see what he was to do.   It is clear that he intended to commit an immoral or indecent act on the victim.   This is the only reasonable inference which can be drawn from his conduct.  

In the Court’s view the three State witnesses were satisfactory witnesses whose evidence may be relied upon.   The version of the accused is, beyond reasonable doubt, false.   It is not reasonably possibly true.  It is clear that he smacked L. and hit K. with his hand on her body.

It is uncertain that the private parts of the victim were penetrated.   There is no evidence that she bled from her private parts after the incident.   The slightest penetration suffices.   Unfortunately the Court does not know whether there was penetration even though slight.   The accused can therefore not be convicted of rape.   The Court finds unanimously that he is not guilty of rape but guilty of contravening section 14(1)(b) of the Sexual Offences Act 23 of 1957 – Committing or attempting to commit an immoral or indecent act with a girl under the age of sixteen (16) years.   He is further found guilty as charged on counts two and three.

_____________________________
A E B DHLODHLO
ACTING DEPUTY JUDGE PRESIDENT
29 MARCH 2005   

HEARD ON :	22,  23,  24,  MARCH 2005

FOR THE STATE			:	ADVOCTE C MTENGWANA

FRO THE DEFENCE		:	ADVOCATE N MTINI