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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, MTHATHA JUDGMENT

PARTIES: The State

VS

Putsu Makhaphela

• Case No.: 09/07

• Magistrate:

• High Court: EASTERN CAPE HIGH COURT, MTHATHA

DATE HEARD: n/a

DATE DELIVERED: 12^th June 2009

JUDGE(S): Nhlangulela J.

LEGAL REPRESENTATIVES –

Appearances:

• for the State: Adv. Van Drunick

• for the Accused(s): Mr. X.G. Mpetho

Instructing attorneys:

• State: DPP

• Accused: Mpetho & Associates

CASE INFORMATION -

• Nature of proceedings : Criminal- Rape- Sentence

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION: MTHATHA) CASE NO: 09/07

In the matter between :

THE STATE

And

PUTSU MAKHAPHELA Accused

_____________________________________________________________

JUDGMENT

_____________________________________________________________

NHLANGULELA, J.:

[1] The accused, a 24 year old male, appears before this Court on a charge of rape of a 12 years old girl defined in Part 1 of schedule 2 to Act 105 of 1997. The accused was warned that if convicted of rape the provision of s 51 (1) of Act 105 of 1997 will be applied.

[2] Pursuant to a plea of not guilty to the charge of rape the matter proceeded to trial. The State duly represented by Mrs Van Drunick, led the oral evidence of of Nophelo Siphesihle Dyomfana, Zusiphe Dani, Lusanda Kototot, Nophelo Dyomfana, Zolile Mshumpela, Zoliswa Christina Sondara, Nceba Lombert Somdaka and Dr A.P. Shenoy. In addition the State submitted the following documents :

(a) admissive in terms of s 220 of the Criminal Procedure Act 51 of 1977 (Exhibit “ A”);

(b) the J88 form containing a medico-legal report by Dr Shenoy (Exhibit “B”;

(c ) address in terms of s 150 of Act 51 of 1977 (Exhibit “C”);

(d) a warning statements (Exhibit “D”);

(e) charge sheet and record of bail proceedings before the magistrate (Exhibit “E”); and

(f) a report by the SAPS on DNA testing (Exhibit “F”).

[3] The accused is being legally represented by Mr Mpeto.

[4] Siphesihle Dyomfana, is the complainant in this matter. She testified that she was 12 years of age when raped, a scholar at Mboya Junior Secondary School doing grade 8 and that she was testifying in a court of law for the first time in her life. She stated that she was raped by the accused on 21 April 2006 and she narrated the circumstances under which she was raped as follows. On a Thursday 20 April 2006. She was allowed to attend an initiation ceremony at Willowvale her maternal home which is situated at Qhora Location, Willowvale, There would also be another initiation ceremony to be celebrated in the same locality at one Nani Tititi’s homestead on Friday 21 April 2006. The mother of Zusiohe Dani, Nowethu, and other people proceeded to the Tititi homestead on 21 April 2006. Nowethu later on telephoned Zusiphe and the witness to bring her some liquor. They complied. They reached Tititi homestead at about 19h00. Zusiphe went into a hut to deliver the drinks leaving the witness outside. Whilst the witness was waiting for Zusiphe she was joined by Lusanda, a friend. As the complainant and Lusanda were talking the Accused approached them and demanded to talk to her. The complainant refused but was ultimately forced to go to talk to the accused near the corner of a garden nearby. There the accused declared his love for the complainant. Without acceptance by the complainant the accused pulled her down the road. She resisted and ran away. The accused chased and caught her; clapped her and told her she would not go home. The accused pulled her to a place in the forest where he tripped and felled her to the ground. He then pulled off his trousers and ordered the complainant to remove her panty. She refused. He then removed it by force, drew out his pennis and inserted it into her vagina. After ejaculating the accused said that he did not care if he was reported to the police as the jail was his home. He then lit a match to shoe off his tattoo on his body. He confiscated the panty saying that he would use it for muti. The accused assisted the complainant in finding her shoes. The complainant then dressed up and they parted ways. She went to sleep in a hut where there were no people known to her. She last saw the accused entering the room which had been occupied by the initiates.

[5] In the following morning the complainant went home and reported the rape incident to her mother. The mother led her to the police as well as the doctor for medical examination.

[6] It was put to the complainant that she was falsely implicating the accused for having committed rape and assault because the complainant left one Lungani Nogemane voluntarily and joined the accused because he was her boy-friend. It was also put to her that the accused did not have sexual intercourse with her as they only talked to each other whilst standing near the garden. The complainant stood to her version of events and that she was raped by the accused on 21 April 2006.

[7] The mother of the complainant, Nophelo Dyomfana, confirmed the version of the complainant that she was 12 years old on 21 April 2006 and that a report of rape was given to her on 22 April 2006 and as a result, she took the complainant to the police and to Dr Shenoy. This witness told the Court that she observed that the complainant sustained some scratch marks and abrasions on the arms.

It was put to this witness that the complainant and the accused had formed a love affair on Thursday 20 April 2006 and had met on the 21^st as lovers. It was put further that the complainant would harm been taken to a doctor in June 2006.

[8] Zusiphe Dani confirmed that she and the complainant went to Tititi homestead at about 19h00 on 21 April 2006 and she left the homestead after having looked for the complainant but in vain. This witness disavowed the fact that Lungani Nogemane was present at the Tititi homestead.

[9] Lusanda Kototo confirmed that she was with the complainant when the accused took the complainant away by forceful means. She testified that she was threatened with violence by the accused as a result of which she ran away leaving him with the complainant. She also told the Court that Lungani was not in company of the complainant when the accused approached them.

[10] Dr Shenoy also testified, He confirmed that the private parts of the complainant she examined on 23 April 2006 were swollen and bruised, he concluded that such injuries were consistent with the complainant having been sexually interfered with on 21^st April 2006 as informed by the complainant. He was not cross examined.

[11] Constable Zoliswa Sondara told the Court that on 23 April 2006 she accompanied the complainant to Dr Shenoy when she was medically examined pursuant to a complaint that she had been raped on 21 April 2006. She was not cross examined.

[12] Inspectors Mshumpela and Sondaba were the police officers who were involved in the investigation of the complaint that the complainant was raped by the accused. They both testified to the effect that the accused led them to the place where they searched for the panty of the complainant but in vain. It was put to them that the accused showed them the place where the accused was standing with the complainant during the night of 21 April 2006. Inspector Mshumpela placed before the Court the evidence of the warning statement (Exhibit “D”). It was put to Inspector Sondaba that his evidence that the accused admitted that he slept with the complainant as they were lovers was a fabrication because it was not recorded in the docket timeously.

[13] All the State witnesses did not agree with the version put to them on behalf of the accused that :

(1) The accused and complainant had a love affair.

(2) The accused did not have sexual intercourse with the complainant.

(3) The complainant was in company of Lungani Nogemane on 21 April 2006.

(4) The place that was showed to the police was not the place where rape took place.

(5) The accused did not assault the complainant in order to have sexual intercourse with her by force.

(6) The medical examination did not take place on 23 April 2006.

[13] The accused testified in his own defence as follows : He was called by the complainant and Lungani Nogemane at about 19h30. He found out that Lungani was in love with the complainant who was his girl-friend. Having had a chance to talk to the complainant in the absence of Lungani he, the accused, discovered that the complainant had divided loyalties which prevented her from joining him to go to his home for the night. When the complainant refused to go with him he gained the impression that she wanted to go with Lungani; hence he decided released her to Lungani. The accused stated that the complainant was 17 years of age because she had told him so when she wanted lover from him. He regarded the complainant as being under age for a love affair but despite his warnings to her she persisted with her desired for the affair. The accused said that Lusanda was the go between during the formation of the love affair. He also stated that it was the complainant who wanted a meeting with him on 21 April 2006. The accused denied having forced and slept with the complainant on 21 April 2006.

[14] Under cross examination the accused stated that he and the complainant had mot one week prior to 21 April 2006 and had agreed that they would spend the day together. He stated further that they met two times on 21 April 2006; that is at 17h30 and 22h00.

[15] The accused did not call a witness.

[16] It has been submitted, by Mrs Drunick; correctly so, that the dispute in this case relates to the question whether the accused did have sexual intercourse with the complainant without her consent. The issue that the complainant was 12 years on 21 April 2006 is not in dispute in as much as the accused did concede the fact that he was aware that the complainant was not yet fit to engage in sexual activities due to her age. Mr Van Drunick submitted further that the version of State witnesses is probable and should be believed but the same cannot be said about the evidence of the accused. I agree with the contention that the version of the State is a probable one in that the witnesses corroborated each other in respects did not contradict themselves and gave answers to all questions honestly and satisfactorily. The complainant gave evidence about the incident which she had knowledge of. The complainant was able to disagree with statements put to her with a measure of confidence. As a child and a single witness the complainant’s evidence is clear and satisfactorily in material respects. It is also reliable. The accused failed to discredit the complainant in that her stay was proved to be correct in the respects that she was never in company of Lungani, Lusanda was not a go between, she was sexually interfered with an 21 April 2007 whilst the accused was present at the scene of crime were proved to be correct. Lusanda corroborated the version that the complaint was taken to a place by means of force. The State witnesses had no axe to grind with the accused and would thus have no reason to implicate him in the commission of rape falsely. The police evidence that the accused pointed out the scene of crime is a probable stay. That admission will not be changed.

[17] The accused says that he was forced to admit that he slept with his girl-friend

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