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IN THE HIGH COURT OF SOUTH AFRICA

BISHO

CASE NO. CC63/2006

In the matter between:

THE STATE

and

BOYI DYANI ACCUSED

JUDGMENT

DHLODHLO ADJP:

1. The accused, a 50 – year – old male person, is before a Judge sitting alone.

2. He is charged with rape, it being alleged that:

“. . . on divers occasions during a period up the 18^th day of December 2005”, at or near unit ten in Mdantsane, he unlawfully and intentionally had sexual intercourse with N P a girl of nine years of age, without her consent.

3. According to paragraph one of the summary of substantial facts, the period of the commission of the offence was “between the beginning of September 2005 and 18 December 2005”

4. The charge is accompanied by a warning that, if the accused 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 offence was committed in circumstances wherein the victim was raped more than once and she is under the age of 16 years.

5. The accused pleaded not guilty to the charge.

6. Section 94 of the Criminal Procedure Act 51 of 1977 deals with a charge if the offence, is alleged to have been committed on divers occasions. The section reads:

“where it is alleged that an accused on divers occasions during any period committed an offence in respect of any particular person, the accused may be charged in one charge with the commission of that offence on divers occasions during a state period”

7. The complainant testified through an intermediary through electronic means from a room adjacent to the Court room. Her evidence may be summed up as follows:

7.1 She knows the accused very well because they live in the same area.

7.2 The accused gave her meat and money.

7.3 The accused said to her that she should go to his house to collect money.

7.4 She went to the accused’s house and on her arrival there the accused closed the door and locked her inside the house.

7.5 The accused told her to undress. When she refused to do so, he undressed her of her panty against her will, undressed himself of his pants and ordered her to lie on the bed.

7.6 She told him that she did not want to lie on the bed. The accused lifted her up and put her on the bed.

7.7 She screamed but the accused closed her mouth.

7.8 He then inserted his penis into her vagina and moved on top of her.

7.9 The accused said that she should not report the incident to anyone and that if she did he would kill her.

7.10 The accused had sexual intercourse with her in his house on several occasions. She said that it could be four or five times. On all these occasions she did not report to anyone because she feared that the accused would kill her if she reported.

7.11 She said that she did not remember when these incidents occurred. When asked by Counsel for the State whether or not it was December 2005, she responded in the affirmative.

7.12 Her grandmother who is now deceased, told her mother that she should note that the accused usually gave money to her (the complainant).

7.13 Her mother T P asked her about the money.

7.14 Her mother struck her with a belt, urging her to tell the truth.

7.15 She did not tell her mother because she feared that if she did the accused would kill her.

7.16 She eventually told her mother that the accused would ask her to go to his shack and that when she was there the accused would undress her, undress himself and insert his penis into her vagina.

7.17 Her mother took her to hospital where she was examined by a doctor and given some medicine.

8. Under cross-examination, the complainant said that:

8.1 She told her mother that the accused would give her money and have sexual intercourse with her because she did not want to be beaten.

8.2 Asked why she did not tell her mother because the accused was not present, she said that no one would kill her there.

8.3 She later said that her mother did not ask her anything before she hit her. She further said that, because she could not endure being hit by her mother, she told her that she had been raped.

8.4 Later she said that she told her mother that the accused did nothing to her.

8.5 When her mother was hitting her she was asking her why she was not telling the truth.

8.6 She said that her mother mentioned the name of the accused when she was questioning her. Her mother mentioned the name of the accused before she hit her.

8.7 Responding to the question whether she would have told her mother that the accused did something to her if she did not hit her, she said that she would.

8.8 On the day when the accused had sexual intercourse with her against her consent he had consumed liquor but was not drunk.

8.9 The accused gave her meat and 50 cents with which she bought chips.

9. Under re-examination, she said that:

9.1 Her grandmother told her mother about monies she (the complainant) would receive from the accused.

9.2 Her mother wanted to know why he gave her monies.

9.3 She told her mother that the accused did not do anything to her. Her mother then gave her a hiding.

10. Re-examined by the Court, she said that:

10.1 She did not remember dates and months when the accused had sexual intercourse with her but that it occurred on a Friday.

10.2 She did not have a boyfriend during the period in question.

10.3 Later she said that, had her mother not given her a hiding, she would have told her “at the same time”.

11. The evidence of the complainant’s mother, Thenjiswa Piyose is briefly as follows:

11.1 She received a report from her mother who is now deceased that the accused gave the complainant R2,00.

11.2 She knows the accused very well as he lives in the vicinity of her home.

11.3 She then went to the complainant and asked her why the accused gave her R2,00 and she (the complainant) agreed that the accused had given her R2,00.

11.4 The complainant could not explain why the accused had given her the money.

11.5 Ms Piyose went on and said:

“After I scared her I took a belt near her and hit her with the belt. I said to her, please tell the truth. I scared her.”

11.6 Ms Piyose said that on the previous day the accused had come to their house looking for the complainant. She went on and said:

“The complainant told him that my mother and I were not present. She later said that we were there. I asked the accused what he wanted. He said that he had not seen me and my mother on the streets. He said that he was just checking us”.

11.7 Ms Piyose continued and said that she gave the complainant money to buy sweets. She continued: “when the complainant returned she said that the accused gave her R1,00 to buy chocolate. That was on a Saturday”.

11.8 Ms Piyose’s version contained in sub-paragraphs six and seven above was not confirmed by the complainant and the accused denied it.

11.9 Ms Piyose examined the complainant and saw a white substance on her panty.

11.10 She then took the complainant to hospital on the same day before she (the complainant) washed herself.

11.11 She and her mother were on friendly terms with the accused because they live in the same area.

12. Under cross-examination, Ms Piyose said that:

12.1 When she asked the complainant about what happened to her she mentioned the name of the accused.

12.2 When she examined the complainant she discovered that her panty was wet and there was a white substance thereon. This fact was not confirmed by the complainant and Dr Yapi who examined her on 19 December 2005.

13. Dr Yapi found that there were neither bruises, lacerations nor tears around the vagina. The hymen was broken. The vaginal opening was wide open and there was no active bleeding. Dr Yapi concluded as follows: “conclusive of rape”. Unfortunately Dr Yapi’s report was handed into Court with consent. Whether by “conclusive of rape” he meant that the complainant’s vagina had been penetrated, is uncertain. There is no indication as to when such penetration took place.

About the condition of the complainant’s clothes, Dr Yapi remarked as follows: “Dirty, poor hygiene”. There is no indication that there was a white substance on the complainant’s panty.

14. The accused denied all the allegations against him. He admitted that he knew the complainant because her family members are his neighbours. He said that he is unmarried and unemployed. At his home he occupies a shack behind the main house which is occupied by his parents. He said that he depends on the favour of his friends who offer him liquor and that he would not have money to give to the complainant.

15.1 The complainant is a child and a single witness. Her evidence should be treated with caution.

15.2 She had to be beaten up by her mother for her to say that the accused had raped her. Moreover, her mother mentioned the name of the accused before she herself mentioned it.

15.3 She does not know when the incidents took place.

16. The State has to prove its case beyond reasonable doubt.

17. In this case it cannot be said that the State has proved its case beyond reasonable doubt. The accused is entitled to the benefit of doubt.

18. The accused is accordingly found not guilty of rape or a lesser offence.

_____________________________

A E B DHLODHLO

ACTING DEPUTY JUDGE PRESIDENT

01 SEPTEMBER 2006

HEARD ON: 30, 31 AUGUST 2006

FOR THE STATE: MRS C de KOCK

FOR THE DEFENCE: MR L R NDUNYANA

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