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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION OF THE HIGH COURT

MBOMBELA MAIN SEAT

 

CASE NO: CC 35/2023

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED.

20 February 2023

 

In the matter between:

 

THE STATE                                                                           

 

And

 

 

MRC                                                                                          (THE ACCUSED)

 

JUDGMENT

 

RATSHIBVUMO J:

 

[1]          The accused stood trial on five criminal charges; four (counts 1-3 & 5) of contravening section 3 of Act 32 of 2007 (rape) –and one (count 4) of robbery involving the taking of a watch. All these crimes are alleged to have taken place at Barberton in the district of Mbombela. The complainant in count one and two is XPK. Count one was allegedly committed in 2014 when XPK was 15 years old. Count 2 was allegedly committed on 27 August 2020 when she was 20 years old. Count 3 and 4 were allegedly committed on 02 December 2017 against DTZ who was 24 years old at the time. In respect of count 3, the State alleged that she was raped more than once. Count 5 was allegedly committed on 08 August 2020 against NPM who was 24 years old at the time.

[2]          The accused was legally represented by Ms. Erasmus who is attached to Legal Aid South Africa, Mbombela. He pleaded Not Guilty in respect of all the charges and offered a plea explanation to the effect that he had sexual intercourse with DTZ with her consent – count 3. He denied that he had sexual intercourse with the rest of the complainants and also denied having robbed a watch from DTZ.

 

[3]          Nine witnesses gave evidence in this trial, eight testifying for the State and the accused was the sole witness for the defence. Following is the summary of evidence for the State.

 

[4]          XPK: She testified that she resides at Barberton Ext 11 Stand 4xxx[1] which is her home since her birth on 07 September 1999. She resides there with her mother, her two sisters, TVN and NMP, and her child who at the time she testified was aged 1 year and 11 months. She testified of an incident that took place during the year, 2014. That day she was home in the company of her brother the accused, who was also residing in the same address as her, occupying an outside shack. The accused is the first born child to her mother. They have different fathers. She met him for the first time when he came to reside with them in 2013. Prior to that he resided with his paternal family in Ngodini. That day she was in the bedroom and the accused was in the sitting room. He called her to where he was and when she got there, he told her that he wanted her blood. He held a phone in his hand as though he was being guided by the person talking on the phone. He told her that he knew that she was menstruating, which was true. He handed her a bottle lid saying she should squeeze menstrual blood from her pad into it. She went to the bathroom and did as instructed.

 

[5]          After handing the lid with menstrual blood to the accused, he gave her a knife saying she should stab him with it on his arm so he could also have his own blood. She was unwilling to do so but he implored her to do it, going to the extent of holding her knife carrying hand and cause it to stab him on the arm with her eyes closed. He sustained a cut and blood came out and he mixed it with her menstrual blood and added some black powder from a bottle. He continued with a phone call of which she could not hear the conversation.

 

[6]          The accused then instructed her to go to his shack which she did. Once inside, he told her to lie on his bed. He then closed the door and came over to her. He told her he was going to have sexual intercourse with her and that he won’t hurt her. He came over and undressed her of her pants and panties. He then pulled down his pants up to the knees. She lied down facing up. She closed her eyes with her hands so she does not observe what her brother was doing. He opened her legs and penetrated her vagina with his penis. He asked her if it was painful and she confirmed. He told her that he won’t put it all inside. He continued having sexual intercourse with her until he finished, and pulled out his penis.

 

[7]          Shortly after he withdrew his penis, she heard her mother calling outside, meaning she was back from where she had gone to. It was the accused who went out and talked to her. He came back into the shack and told her to go to the main house and bath which she did. He later came to her and told her not to talk about what happened because if she does, there would be bad consequences, and she may even die. She was scared of what she did. It was the first time for her to have sexual intercourse\. She constantly felt scared and guilty knowing that her brother had sexual intercourse with her.

 

[8]          This incident traumatised her a lot. As a result, she no longer spent much time at home as she was scared of the accused. She spent more time with the neighbours. She always feared him thinking that he could do it again. She did not share this incident with anyone for fear of the consequences the accused warned her of, until 2020 when he sexually penetrated her again. Only then did she gather enough courage to come out and report it to the authorities.

 

[9]          She testified further that on 27 August 2020, she was called by the accused to come and sleep at home as he would be going away that night. She and TVN would never spend a night at home with the accused unless their mother was also home. That period, their mother was not home having gone away to attend a funeral and to stay behind giving comfort to the bereaved family. For that reason, she and TVN were not sleeping home for a while. She was at the neighbour’s house when called by the accused who also told her to call TVN.

 

[10]       She then telephoned TVN who was sleeping at her friends’ place and conveyed to her what the accused said. She delayed to go home as the accused was still there and TVN had not yet arrived. Once TVN was back home, she went to join her at home although the accused was still there. The two sisters prepared where to sleep in the sitting room, and then sat and watched TV as they waited for the accused to go. Around 20h00, the accused bid farewell and left. She was still watching TV when around 21h30 to 22h00, when the accused came back saying he forgot something. By then TVN had fallen asleep already. He went to his bedroom and later came out and left.

 

[11]       Moments later, he came back again this time saying their journey flopped and as such, they were no longer going away. He went to his bedroom and she locked the door and came back and slept. While lying there, the accused came to where she was by the sitting room and knelt next to her head and touched her so as to wake her up. He told her he wanted to talk to her. She told him to talk. He said he wanted to talk to her, away from TVN. When she told him that TVN was fast asleep, he became aggressive and told her to come to his bedroom. She then rose up and followed him to the bedroom having covered herself with a duvet-cover while only clad in panties underneath.

 

[12]       Once in his bedroom, accused told her to sit on his bed and she obliged. He then told her he was sorry for what he was going to do. She knew what he wanted to do and told him she did not want to do it and that he should let her go and sleep. He did not respond. He then proceeded to take off the duvet cover and undressed her of her panties. He also undressed himself of the t shirt and the trousers he was wearing. He took a condom, uncovered it and put it on his penis. He then instructed her to get off the bed and lie on the sponge which was already placed on the floor, as the bed was unstable, and she obliged. He stretched her legs and penetrated her vagina with his penis and had sexual intercourse with her. When he finished, he withdrew his penis and pulled off the condom and put it down and came to lie down next to her.

 

[13]       When she asked if she could go, he told her that he was not finished with her yet. After about 10 minutes, he put on another condom and had sexual intercourse with her again. When he finished, he withdrew his penis and removed the condom. She again asked him to go and sleep and this time, he allowed her. She took the duvet cover and panties and went back to sleep in the sitting room. When all these happened, she was four months pregnant.

 

[14]       The next morning after eating breakfast, as she sat on a sofa, the accused came over and rested his folded arms over her from behind and asked her as to how long she was going to remain angry. She did not respond. Instead, she went up to attend to the dishes outside. When she walked back into the house, he shouted, “hey you bitch, why are you not responding.?” She asked him as to what he wanted her to say. He said, “you must answer me bitch.” He then insulted her saying her vagina was not tight but slack. She decided to walk out of the house. He then kicked the door to close and it slammed on her hand.

 

[15]       At that stage TVN rose from the sofa and begged the accused not to injure her. He then handed her (the complainant) a phone saying, if she wanted to call her mother and tell her what he did, she was free to do so as he was not scared. He was not even scared of being arrested. He then left the house and walked out of the main gate. After he was gone, she and TVN decided to leave the house and go to their mother’s elder’s sister. As they walked, they saw the accused, a short distance from their home. He whistled and beckoned TVN to come to him, which she did. Moments later, she came back and told her that the accused asked her to convey his apologies. This piece of evidence was only provisionally accepted as it is hearsay evidence, until such time that TVN was called to testify.

 

[16]       It was only after they had reached their mother’s sister that she confided to TVN that the accused raped her the previous night. She however did not tell their mother’s sister. They remained there and did not go back home until their mother returned on 01 September 2020. It was their mother’s elder’s sister who called her to come back saying the kids were on their own. Upon her arrival, their mother took her and TVN and they walked back home. They found the accused present at home.

 

[17]       It so happened that as they ate, her mother saw that she was crying and asked her what the problem was, and she did not respond. Moments later, the accused walked in to where she was and starred at her and warned, “you don’t know me well.” She immediately knew that her mother must have told him that she was crying. She went out to confront her mother as to why she told the accused that she was crying. Her mother told her that she thought she was sick. She told her that she was not sick, but that the accused raped her. Her mother responded saying that they should all finish what they were doing and go back to her sister to sleep there. She said this because she was also scared of the accused and she was shocked to hear that he raped her.

 

[18]       As they were about to go to her mother’s sister, the accused stopped them and said she (the complainant) and TVN would have to go sleep where they usually sleep and leave their mother to sleep there. As directed by the accused, she went to the neighbour’s house and TVN was accompanied to her friend’s place by the accused and her mother. She however did not sleep at her neighbour’s place. She proceeded further going to her sister’s place at Section 12, named QK and slept there. She told QK that she was there because she was trying to get away from her brother who raped her. QK advised her that they should report the matter to the police the following day.

 

[19]       The following day in the morning, her mother and TVN arrived there and QK and her husband sat them down and asked her (the complainant) to narrate what happened, and she did. QK gave them money for taxi fare to the police station and they left. As they were leaving, the accused phoned and talked to their mother asking about their whereabouts. She told him they were going to the clinic where after he told her that he was at the police station. It was on 02 September 2020 when they went to the police station and opened a case against the accused.

 

[20]       The police made them to sleep at the police station as they were scared of going home to face the accused. After all the accused had locked the house and had the keys in his possession. He also had their mother’s cell phone after he took it from her. She was taken to a clinic for medical examination. The police took her mother to trace the accused. He was found and brought to the police station. They were handed the house keys that the accused had, by the police before being released. The police also advised them to obtain a protection order against the accused which they went to acquire before going home. Her big sister NPM. Who used to reside with them until she had conflicts with the accused, also came and joined them in the application for a protection order.

 

[21]       Under cross examination, the following came to light. It was around August 2020 when NPM had conflicts with the accused and left their homestead. She admitted that it was not all the days that she would spend nights at the neighbour’s house because she was scared of the accused. There are nights that she would sleep over there because she was used to sleeping there. She however would avoid sleeping at home when the accused was there unless their mother would also be there.

 

[22]       TVN: She is a sister to XPK and NPM. Like XPK, she has been residing at Barberton Ext 11 Stand 4xxx since her birth in 2004. She testified that around 2020, she was not used to sleeping at home whenever her mother was not home, so as to avoid her brother, the accused who was also sharing residence with them. She testified of the events in August 2020 when her mother had gone to Emjindini where there was death. She was away for a long time. XPK called her one day saying she should go sleep at home as the accused said he would be going away and they should come and sleep at home. She and XPK went home and found the accused packing his things. Eventually he left.

 

[23]       When she woke up the next morning, she saw XPK teary and asked her as to what was wrong and she said she was fine. She testified on how, as they were eating breakfast, the accused came and bent over XPK from behind a sofa asking, “until when would you be angry?” XPK did not respond. He started insulting her calling her a bitch. XPK wanted to leave the room but the accused pushed and closed the door causing it to hurt XPK on her hand. She testified that she asked the accused not to beat XPK. He then left her and walked out of the yard. Moments later, she and XPK also left going to their mother’s sister.

 

[24]       As they walked away from home, but still on the same street, they saw the accused who called her and she proceeded to him. The accused asked her as to where they were going and she told him. He then asked her if he was too fast and she told him that he was slow. She said so because she was scared of him based on what he was doing in the house. He then told her to apologise for him to XPK for what happened in the house. She agreed to carry the message, and she walked back to join XPK and also conveyed the accused’s apology.

 

[25]       It was only after they had reached their aunt’s place that XPK told her that the accused raped her. She was shocked by the news. XPK further told her not to inform their aunt whom they were visiting. Their aunt often got frightened whenever she talked about the accused. It was their aunt who called their mother saying she should come back and she came back in the late afternoon, the following day. When she was back, she, XPK and their mother walked home where they found the accused.

 

[26]       As they ate the food their mother prepared, XPK was crying prompting her mother to ask her as to what was wrong. At some point, the accused walked in to where she and XPK were seated and starred at them with a frightening eyes asking, “do you want our mother to see what I did to you?” XPK did not respond. Later in the day, the accused said she and XPK should go and sleep at their usual sleeping places. She and the accused first accompanied their mother to go and collect her tablets because she had left them behind.

 

[27]       As they walked, there was a time that her sister NPM called her on her phone and she was scared of answering. The accused then took the phone from her. Once they reached home, the accused started chasing her around carrying a knife wanting to stab her for a reason that she was talking to NPM. The accused did not want her to talk to anyone on the phone including her sister NPM. He stopped and walked out of the yard. Once he was gone she and her mother went to the neighbour’s place and slept there.

 

[28]       In the morning she woke up to realise that her mother was no longer in the room where she was sleeping. Her neighbour Victoria, told her that she went to look for XPK. She later came back saying she found XPK. She and her mother left and walked until they met XPK near her sister, QK’s place. XPK said they should go to the police station and open a case. They all agreed and proceeded to the police station being herself, XPK and their mother.

 

[29]       At that stage, the accused called on her phone. When it rang, she got frightened and handed her phone to her mother. The accused wanted to know where she was and she told him she was coming back but still going to the clinic to get some medication. He told her it was okay and that he was at the police station sorting other things of his. That made their mother to hesitate going to the police station as agreed earlier, but XPK was determined that they should go saying he would not do them any harm even if he was there. They all proceeded to the police station in a taxi.

 

[30]       At the police station, the officers helped them to open a case. Another officer proceeded with their mother to look for the accused while she and XPK remained behind at the police station. The police came back with the accused at night. They spent a night at the police station and only left the following day in the morning. They also proceeded to obtain a protection order against the accused at the Magistrates’ Court. The accused had the house keys with him which he handed over to them after he was arrested. He also had their mother’s phone which was not recovered from him. XPK did not tell her about the 2014 incident. She only heard of it at the police station when she made a statement to the police. She proceeded to also tell her and their mother about it. NPM came to join them when they applied for a protection order. It was then that she also alleged that she was raped by the accused.

 

[31]       It came out during cross examination that although the accused had not sexually abused her in the past, there was an incident in which he came and knelt next to where she was sleeping while naked, albeit having covered his penis with his hands. She asked him not do what he wanted to do. From there he went to sit on a sofa. Her mother also saw it as it happened at the time she was waking up in order to use the bathroom.

 

[32]       NPM: She testified that she used to reside at Barberton Ext 11 Stand 4xxx. She came from her paternal home in Nhlazatshe to reside there with her mother from 2018 until 2022. When she left, she went back home in Nhlazatshe. When she stayed in Barberton she shared her residence with her mother, her two sisters, XPK and TVN and her brother, the accused. She gave details of an incident that took place on 08 August 2020. On that date and at around 19h30, the accused asked her to take a walk to the shop with him. She agreed and they took a walk.

 

[33]       As they were walking, they stopped at the open space just before Jonathan’s shop. The accused then suggested that they go to the home of a boy whose name she has since forgotten. She agreed and they took a turn walking towards the home of the said boy. When they reached the corner, the accused whistled as if to check the presence of a person in a house. He then said, “eish… he is not at home.” He then suggested that they should walk back home, which they did. He led her to what he said was a short cut which was a foot path. They walked until they reached a small river.

 

[34]       It was there that accused grabbed her by the hand and dragged her to a tree next to a dam. He gave her an angry look and told her to choose between being killed and him having sexual intercourse with her. She refused to choose and told him to do whatever he brought her from home in order to accomplish. He took off the jacket he was wearing and put on the ground. It was their mother’s jacket. He had an axe on the side of his waist. He caused her to lie down on the jacket, pulled down her jeans and panties to her knees, pulled down his pants and came on top of her, inserted his penis into her vagina and had sexual intercourse with her. He ejaculated inside her vagina and wiped himself with his BVD trunk and wiped her with the jacket she was lying on.

 

[35]       When he finished he remarked if this was the taste she gives to K [....] her boyfriend. He also told her he was expecting something that is his from her. He added, this does not mean he was no longer her brother. He finally threatened to kill her child O who stayed in Nhlazatshe in case she tells anyone of what he did to her. They walked from there and reached home. At home they found others still awake. She did not tell anyone of what happened. She proceeded to the bathroom and took a bath. She contemplated reporting the incident to the police, but feared for her child, O.

 

[36]       The next day she told her mother that the accused raped her. Her mother responded saying the accused was her brother and that he would never do such a thing. Disappointed that she was not believed, she stopped there and did not take it any further. Later on as she was seated on a sofa and she had a headache, the accused came and leaned over her and asked, “do you want the people to notice that I did something to you?” She walked away from him to the bedroom and lied on a bed. He followed her there carrying a scissor asking her as to what was happening. Their mother walked in at that stage. He charged at her threatening to “kill this dog of yours.” He finally stopped on his own and left her alone.

 

[37]       She realised that she was no longer safe in that house. She however did not have money to go to her Nhlazatshe home. The next day she moved out of the house and went to her mother’s older sister. She told her mother’s sister what happened and she believed her. Her mother’s sister offered her a bedroom which belonged to her daughter who was not there at the time. She was there for a week. While she was there, the accused sent her text messages by phone. In one of them he wrote, “come meet me near Queen’s place and get money so you can pfutsek from here.” She finally got money for taxi fare from K [....], her boyfriend and left to Nhlazatshe.

 

[38]       She was at Nhlazatshe for one day. On the second day, around 02 or 03 September 2020, she received a call from XPK who was with QK, her sister from the father’s side. QK wanted her to come back saying the accused did to XPK what he did to her. She indicated that she would come back and that she was also going to open a case with the police. She left Nhlazatshe on 04 September 2020 and proceeded to the police station where she found XPK, their mother and TVN saying they had slept at the police station. She went to apply for a protection order and then opened a case with the police. She was also taken to the hospital for medical examination.

 

[39]       At that stage, it was discovered that she was five weeks pregnant. She told them that she wanted the pregnancy to be terminated. She was given the 15^th September 2020 as a return date for the pregnancy termination procedure. On that date she went back to the hospital and they terminated the pregnancy. This she did because she would not manage to bear a child for her brother, the accused. The pregnancy could not have been K [....]’s as she and K [....] always used a condom when having sexual intercourse.

 

[40]       Her relationship with the accused as a brother was fairly new. She had not known him prior to moving in to their Barberton home. He had not abused her before. From her observation, he had a good relationship with XPK. He would buy XPK bunny chow whenever she said she was hungry. TVN told her of the incident in which the accused came and knelt next to her at night while he was naked and she begged him not to do what he wanted to do. He then apologised and left to sit on a sofa in the sitting room.

 

[41]       DTZ: In 2017 she was a resident in Barberton Ext 11. She was born in 1993. She gave evidence on an incident that took place on 02 December 2017 at Sigwagwane Section. On that day she attended a party at a place called Siga, in Sigwagwane. She had gone there with K [....] 1 M [....] , P [....] N [....] and M [....] 1 Siwela. At the party, they were drinking liquor. They had arrived there around 10 pm. While the party was on, she accompanied K [....] 1 to the toilet. She had also planned to pass out urine.

 

[42]       K [....] 1 entered the toilet first and she remained alone at the door waiting for her to come out. At that stage the accused who was one of those at the party came to where she was. He said to her, “come here.” She refused. He then slapped her twice with an open hand on her cheeks and grabbed her by the hand. He dragged her away from the toilets and further away from where the party was to a place where there were no more houses, some 800 meters away. He threatened to kill her if she was to make noise. He broke a beer bottle that he always had and kept a broken piece in his hand.

 

[43]       The accused then undressed himself, pulling his pants and underwear to the knees at told her to suck his penis. She sucked his penis while he took a video using his cell phone. He told her he was taking a video in order to show her friends so they know that he was in a relationship with her. When she rose up in order to go, he hit her with open hands saying she was not permitted to leave until he tells her go. He told her to undress and she refused. He again slapped her with open hands several times until she complied. He helped her to undress completely as she was wearing a jumpsuit. He then told her to lie down and face upward, which she did.

 

[44]       The accused then climbed on top of her and penetrated her vagina with his penis and had sexual intercourse with her until he ejaculated inside her. When he finished, he told her to go with him to the river that was some 4 meters away, so he could wash her. When she refused, he hit her twice with open hands and she fell down. When she fell down he said to her, “oh, you pretend to have fallen down whereas you want it again.” He climbed on top of her and had sexual intercourse with her again. She could not tell if he ejaculated in her again as she was crying out loud this time.

 

[45]       He then dragged her into the river and instructed her to wash herself and she refused. As expected, he slapped her again. He then started washing her vagina scooping water with his hand saying there will be no proof (that they had sexual intercourse). He then told her to get out and get dressed which she did. He took her watch that she had in her hand saying he was going to show others that she was with him in his house. He had removed the watch from her wrist when he undressed her. It was valued at R50.

 

[46]       As they walked away, he told her she was not going to her home but to his house. She told him it was fine. She however asked him to first accompany her to K [....] 1 so she could obtain her jersey from her and he agreed. When they got to the party venue she asked for her jersey from K [....] 1 and she handed it over to her. As they continued walking, she asked that they should first go to her home so she can get clothes as what she was wearing was wet and he agreed.

 

[47]       As they walked to her place together, he kept on telling her that he knew that she was going to have him arrested. He however assured her that he was not scared as no one can get him arrested. He even gave her R20 saying, “here is cash; go and get me arrested.” He also threatened to kill all members of her family if she tries. When they got to her home, she knocked and her younger sister PKM, opened for her. PKM was with her boyfriend LK. She got inside and informed them while crying that the accused raped her. The accused was by then standing outside. He wanted to force himself into the house but LK grabbed him by the hand and walked him out of the gate. He told the accused to go asking, “can’t you see she is crying, an indication that she is hurt?”

 

[48]       About ten minutes later, K [....] 1 arrived asking her if she was now in a love relationship with the accused. She denied it and told her that the accused raped her. K [....] 1 suggested that they should immediately go to the police station and she agreed. It must have been around 6am when they arrived at the police station where she opened a case and was taken to the hospital to be medically examined. At the hospital, she was kept for several hours and was only released at 6 pm.

 

[49]       She did not know the accused. It was her first time to see him face to face that day. She had however heard about him as he was notorious. She learned what his name was from PKM and LK when she pointed to the boy outside who had raped her and they mentioned him by the name. She had heard of a man called DJ in the past and that day when threatening her, the accused also described himself as DJ, the man who does not get arrested. It was then that she knew, she was in the hands of DJ. She has not recovered her watch.

 

[50]       Under cross examination, she denied that she had consented to have sexual intercourse with the accused. She also denied that she laid the charge against the accused for fear that the video would go out and show that she had a relationship with the accused while it was known that she was in love with Njabulo. She indicated that the video would show that she was being forced to perform oral sex. She admitted though that Njabuso was her boyfriend but could not tell where the accused got it from as it did not come from her. Although she had consumed six dumpies of beer, she was not drunk, but just tipsy.

 

[51]       K [....] 1 N [....] 1 M [....] : She knows DTZ and has been her friend for the past six years. On 02 December 2017, she was in her company at Bongani tavern where they were drinking liquor together with PKM and LK. When Bongani tavern closed, they proceeded to Siga in Sigwagwane where they continued to drink liquor. That day there was a party / function at Siga. PKM and LK did not stay long. They left earlier as they were lovers.

 

[52]       They drank until the stage when she asked DTZ to accompany her to the toilet. As they walked there, the accused was following them from behind. She entered the toilet. When she came out of the toilet, she found DTZ and the accused were no longer there. When she entered the toilet, DTZ was talking to the accused as he held her hand. They were away for some time and returned just before day break. DTZ took her jersey from her and left. She noticed at that stage that DTZ was injured on her right cheek. She asked her softly when handing over the jersey to her if she was by then in love with the accused and she did not respond.

 

[53]       After the accused had left with DTZ, she did not stay long there. She walked straight to DTZ’s home. This was because in her conversation with DTZ, she noticed that she was not happy and her eyes were also swelling with tears. At DTZ’s home she found her crying. She asked her again if she was in love with that boy, referring to the accused. She cried some more. She then told her that the accused took her to the bushes and raped her and that he even recorded a video of her performing oral sex on him. She also told her that he gave her R20 to go and lay a charge at the police station. She then told DTZ that they should go to the police station and she agreed. She accompanied DTZ to the police station where she laid criminal charges against the accused. The police took her home and DTZ was taken to the hospital.

 

[54]       PKN: She is a younger sister to DTZ. She also testified of the events that took place in 2017 the date of which she was not certain as she did not give a statement to the police until early in 2023. Her evidence corroborates that of DTZ regarding her arrival home in the company of the accused. She is the one who opened the door for DTZ who immediately informed her in tears that the accused raped her. Her boyfriend LK who was with her in the house is the one who went out and talked to the accused so he could leave and he left. At the time she gave evidence, she was no longer in love with LK.

 

[55]       Bheki Christopher Maseko: He was a member of the South African Police Services in 2020 holding a rank of a Warrant Officer. He is the one who arrested the accused after he was pointed out by his mother. He found him in possession of three cell phones and the house keys. One of the cell phone was identified by his mother as hers, another belonged to his sister whereas the last one belonged to the accused. He handed over all the cell phones and the keys to his mother. He denied the accused’s version to the effect that only two cell phone were recovered from him.

 

[56]       Admissions were made in terms of section 220 of the Act 51 of 1977 (the Criminal Procedure Act). These admissions incorporate the medical reports (J88) in respect of all the complainants and the forensic evidence results in respect of semen found in DTZ which matched the accused’s DNA.

 

[57]       With this evidence, case for the State was closed.

 

Case for the Defence:

 

[58]       MRC: He is the accused in this case. He was arrested in 2020 while residing at Barberton Ext 11 no. 4xxx. He had only come back to reside there at the beginning of 2020. Prior to that he was residing at his paternal home in Ngodini. He started staying at the Barberton residence, which is his maternal residence in 2011. He started staying in the main house and then moved out to an outside room, a shack. He started staying in a shack between 2013 and 2014. He stayed there until 2015 when he moved out of the house because he was not seeing eye to eye with other family members, including his mother. This was because friends would come home looking for him and when they could not find him they would fight his family members.

 

[59]       He denied having raped XPK. He did not ask for her blood for medicinal purposes. When he left the Barberton address he went to stay at Sigogwane Section in his own shack. He did not stay there for long as he was arrested in 2015 and was released in 2016 or 2017. Upon his release, he went back to his shack. He later left Barberton to his paternal home in Ngodini where he resided the whole of 2019. He came back to Barberton in 2020. What led him to going back is that NPM told him that their mother escaped from the hospital where she had been detained for treatment. She hunted for her and found her and took her back. She escaped again and once more, NPM searched for her and found her at Khaleni Section in a house of a traditional healer. It was at this stage that he decided to go and be at his mother’s residence.

 

[60]       He met NPM for the first time when he was released from prison in 2016 or 2017. When he went back to his mother’s residence in 2020 he was unemployed. He however generated an income through illegal mining in Barberton. When he arrived there in 2020, no one was residing at his mother’s residence as XPK was at the initiation training until around February 2020. His mother came out of the initiation first followed by XPK. Only he, his mother and XPK resided at their mother’s residence, whereas TVN would only come there to eat. NPM was not even staying there when he arrived. She would come there just to visit. He did not know where she stayed but he would hear a rumour saying she was staying with a boyfriend named S [....] .

 

[61]       His mother moved out of the house sometime in August 2020. He does not know where she went to. XPK was staying at the neighbour’s house but in between she would visit home from time to time. The same applied for TVN in that she would come home to visit from time to time. It was XPK who told him that his mother had gone away as he came from underground where he conducted illegal mining.

 

[62]       He could not remember calling XPK to come back home to remain in the house as she testified. He could not recall having sexual intercourse with her on 27 August 2020. He could not recall where he was on that day. After being told that his mother was gone, he always carried the keys for the house with him after locking. His relationship with XPK was sour. This is because when she came out of the initiation, she did not get proper help in respect of the costs associated with the training. His mother asked him to assist. He told her he did not have that money. XPK also saw that he did not contribute towards the costs. That made him and XPK not to have a good relationship.

 

[63]       He confirmed that it has not happened that he, XPK and TVN would be in a house and sleep there in the absence of their mother. He never raped XPK on 27 August 2020. Her pregnancy was visible to him at the time. He also did not rape NPM on 08 August 2020. He did not know that NPM was pregnant when he was arrested. His relationship with NPM was not okay because he was told that around July 2020, when he was underground, she used his sponge and blanket to sleep on with her boyfriend K [....]. He also confronted her and asked for the contact details of her stepmother. That made her to be unhappy, and she left. He denied having threatened to harm XPK, NPM or TVN. He never threatened any of them with a knife or scissors.

 

[64]       He knew DTZ the complainant in counts 3 and 4 from 2012. She was his friend. On 02 December 2017, he was at Bongani and later proceeded to DJ Siga. He first saw DTZ at Bongani and left her there as she was in the company of her friends and he was in the company of his own friends. He saw her again at DJ Siga very late at night. He did talk to her at DJ Siga as they were dancing. He and his friends continued to drink until the time that they were supposed to leave which was around 3am. He left with DTZ leaving her friends at DJ Siga, going to have sexual intercourse at his place of abode.

 

[65]       As they approached his place, they saw light in his shack which meant C [....] , the mother to his child was home. C [....] is LK’s sister. When he asked DTZ as to what they should do, she told him he was a man and he should devise a plan. He then asked her if she was fearful and she said she was not. He then requested her to go with him to the sportsground and she agreed. They proceeded there and had sexual intercourse. He did not have oral sex with her. He did not take a video of them having oral sex. He does not see a reason for taking it. He did not take her watch and he did not assault her.

 

[66]       After they had sexual intercourse they went back to DJ Siga around 5am. DTZ asked him to accompany her to PKN’s place and he agreed. Once there, he is the one who knocked on the door, saying he had brought DTZ back home. When PKN opened the main door, he bid farewell to DTZ and left. He admitted that he gave her R20 before he could leave. This was because she asked for money. He gave her R20 before they reached PKN’s place. He did not see any injury on her face that morning. He does not know K [....] 1. He did not see her on the night of the incident. He knew DTZ’s boyfriend, named Mayambela. On the night of the incident, he was also there at DJ Siga and he was with his friends. When he left with Dellie, he did not pay attention as to his whereabouts.

 

[67]       At the time he talked to DTZ while they were dancing, they were both drunk. He considers her having consented because he told her, “he wanted things” and she responded saying, “yes, let us go.” He noticed that DTZ seemed to have forgotten about their friendship when she gave evidence. He did not deem it necessary to remind her about it. He did not instruct his attorney that DTZ decided to lay the charges because he had taken a video of them having oral sex. He also heard PKN testify that she did not know him. This could not be true as she also knew that he was in love with LK’s sister named C [....] . He did not deem it necessary for her to be reminded of this this aspect either.

 

[68]       With this evidence, case for the defence was closed.

 

[69]       Closing arguments: Both the State and the defence counsel submitted heads of arguments which were received and marked as Exhibits B and C respectively. It suffices for present purposes to indicated that the State seeks the conviction of the accused on all the charges, whereas the defence calls for his acquittal in respect of all the charges.

 

[70]       It is trite that for a conviction to stand, the State must prove its case beyond a reasonable doubt.[2] There is no duty on the accused to prove his innocence. In case there is a version put forward by the accused, and should the same be reasonably possibly true, the accused would be entitled to an acquittal. These are not separate and independent tests, but the expression of the same test ('the proper test') when viewed from opposite perspectives. There is only one test in a criminal matters and that is whether the evidence establishes the guilt of the accused beyond a reasonable doubt or not.[3]

 

[71]       For evidence to establish the guilt of the accused beyond a reasonable doubt, it will be so only if there is at the same time no reasonable possibility that an innocent explanation has been put forward that might be true. The two are inseparable, each being the logical corollary of the other. In whichever form the test is expressed, it must be satisfied upon a consideration of all the evidence. It suffices for present purposes to state that it is well settled that the evidence must be looked at holistically – See S v Van der Meyden,[4].

 

[72]       Facts Not Disputed:

 

Counts 1, 2 & 5

 

a.         The accused share the same mother with XPK (the complainant in counts 1&2), NPM (the complainant in count 5) and TVN; but they all have different fathers.

b.         The accused had not met any of his three sisters prior to him moving into his mother’s residential address in Barberton.

c.         NPM only met and knew her siblings, including the accused in or after 2018 when she came to her mother’s residential address in Barberton for the first time.

d.         XPK and TVN were born in the Barberton residence which they always shared with their mother.

e.         When the accused started residing in the Barberton residence, he occupied one of the rooms in the main house and later moved to a shack outside, but in that yard.

f.          In 2014, the accused occupied the shack outside the main house as his outside room.

g.         In 2014, XPK was 15 years old.

h.         XPK did not report the alleged 2014 rape to anyone until after the 2020 alleged incident.

i.           The accused left the Barberton residence to stay on his own and only came back later to reside in the Barberton residence. In 2020, he was residing there.

j.           Early in August 2020, the accused and NPM had a grudge and NPM moved out of the Barberton residence and only returned after the accused was arrested.

k.         When she moved out of the Barberton residence, NPM went to stay for a week at her aunt’s place before moving back to her paternal residence in Nhlazatshe.

l.           When the accused resided at the Barberton residence in 2020, XPK and TVN would not spend a night at home with the accused except in the company of their mother. In the absence of their mother, XPK would always sleep at her neighbour’s place whereas TVN would sleep at her friend’s.

m.       Some days before the alleged incident in count two (27 August 2020), the accused’s mother left for several days to stay over where there was a funeral.

n.         The night of 27 August 2020, XPK and TVN spent a night at their Barberton residence, and the accused also slept there.

o.         A day after 27 August 2020, XPK and TVN moved out of the Barberton residence and were with their aunt until their mother came back on 01 September 2020.

p.         On 01 September 2020, XPK and TVN walked to their Barberton residence where the accused was, but did not sleep over there.

q.         On 01 September 2020, TVN and her mother slept at the neighbour’s place whereas XPK slept at her sister, QK’s place.

r.          The accused was arrested the night of 02 September 2020 and was found in possession of the house keys and his mother’s cell phone.

 

Counts 3 & 4

 

s.         The accused and DTZ were at DJ Siga’s tavern the night of 02 December 2017.

t.          The two left and walked to the sportsground some 800 meters away where they had sexual intercourse, near a river.

u.         When they finished they walked back to DJ Siga where DTZ collected a jersey from a friend named K [....] 1.

v.         Upon collecting the jersey, K [....] 1 observed DTZ’s eyes to be swelling with tears.

w.        K [....] 1 also observed that DTZ had an injury mark on the side of her face, which she did not have before vanishing with the accused.

x.         The accused gave DTZ R20.

y.         Upon her arrival at home in the early hours of the morning that day, DTZ reported to her younger sister PKN in tears that the accused had raped her.

z.         Upon the arrival of K [....] 1 later that day, DTZ made a report to her in tears that the accused raped her.

aa.       Upon examination by Dr. Nkosi, a few hours later that day (at 10h22), DTZ was found to have a “bruise bluish discolouration on the L side of her forehead.”

bb.        Specimen was collected from her for further forensic analysis and was found to contain semen whose DNA was found to match that of the accused.

 

[73]       Facts in Dispute:

 

a.         Did the accused have sexual intercourse with XPK in 2014?

b.         Did the accused have sexual intercourse with XPK on 27 August 2020?

c.         Why was XPK no longer sleeping at their Barberton residence as long as the accused was there unless their mother was present? Was it fear of the accused or the desire to sleep at the neighbour’s place?

d.         Why did XPK and TVN sleep at home on 27 August 2020? Did the accused invite them or they came back on their own?

e.         Why did XPK and TVN go to sleep at their aunt’s the next day?

f.          Did the accused have sexual intercourse with NPM on 08 August 2020?

g.         What was the source of the grudge between NPM and the accused that saw her leave the Barberton residence in August 2020? Was it the fact that he raped her or he accused her of using his bedding to sleep on with her boyfriend?

h.         Why did NPM have to sleep over at her aunt’s while trying to raise money for taxi fare so she could go back to her paternal home in Nhlazatshe?

i.           Did DTZ consent to having sexual intercourse with the accused?

j.           Who caused the injury on DTZ’s face?

k.         Why were her eyes swelling with tears when she collected her jersey from K [....] 1?

l.           Why did she report that the accused raped her to K [....] 1, PKN and LK if the sexual intercourse was consensual?

 

Credibility:

 

[74]       The version of the State is disputed by the accused in every aspect except where it cannot be disputed. For example, it is only where there is forensic evidence showing that his semen was found in DTZ’s vagina that he admits that he had sexual intercourse with her. He however disputes everything about how it happened pre and post the sexual intercourse. Where there is no forensic evidence like in all the other charges, the accused denies the allegations and even distances himself from the scenes, questioning the veracity of the complainant’s versions. In essence, the accused raises bare denials in all these charges. The version presented by the State cannot be reconcilable with that of the defence.

[75]       The technique usually applied when faced with two mutually destructive versions, was used by the Spreme Court of Appeal (the SCA) in Stellenbosch Farmers' Winery Group Ltd v Martell et Cie & Others[5] when it held,

 

“[O]n the central issue, as to what the parties actually decided, there are two irreconcilable versions. So, too, on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.”

           

[76]       The accused’s version is irreconcilable with the undisputed facts of the case as a whole. A lot remains unexplainable if one was to accept his version as a true reflection of what happened in respect of all the charges. The following aspects lay bare the credibility of the accused especially in respect of the incident of 02 December 2017.

 

a)         The accused version lacks an explanation on why a woman who left with him to enjoy sexual encounter came back with a bruise on her face that was still visible some 4 hours later when she was medically examined; and the man who was with her cannot explain how it came about. Are we to presume that she was attacked by some strangers while in his company? But according to the accused, she was always with him and there is no third party who came in between. The only explanation on the table is proffered by the complainant herself (DTF) who testified of several open hands slaps delivered by the accused when she failed to cooperate in agreeing to go with him, take off the clothes and wash her vagina by the river.

b)         The accused’s version does not explain why DTZ was teary when she collected the jersey after having had a consensual sexual intercourse. Why was she crying when making a report to PKN and LK? It also does not explain why he was unceremoniously kicked out of the yard by LK. The only version that offers an explanation is that of DTZ who alleges, she was sexually penetrated without her consent.

c)         At the beginning of the trial, the court warned the accused to see to it that any false allegation should be disputed as it may be argued at a later stage that, failure to dispute such allegations meant that he agreed with them. Not only did he allow allegations to go undisputed, but he contradicted some of the disputes levelled against the witnesses on his behalf.

d)         DTZ made it clear that she met the accused for the first time at DJ Siga on the night of the incident. She did not even know his true name although she had heard about him. Although she was cross examined for over a day, this crucial version remained unchallenged. It was only when the accused came to give evidence that he came with a version to the effect that DTZ was a friend of his since 2012. The court missed an opportunity to hear what DTZ would have said had this version been put to her. The only conclusion the court can now make is that this must have been an afterthought.

e)         A similar assertion was made in respect of the evidence by PKN. She also indicated that she did not know the accused and that she saw him for the first time when he came home with DTZ. The accused allows that version to go unchallenged, only for him to come and testify that she knew him and his girlfriend C [....] very well.

f)          During cross examination, a version put to DTZ by his counsel was to the effect that she decided to lay a criminal charge with the police in order to stop the video taken by the accused from going viral as this was going to expose that she was in a relationship with him while she had another known lover. This version was disputed by the accused as not coming from him as he denied that there was a video taken by him that day.

g)         In Mkhize and Others v S[6], Mathopo JA (as he then was) had the following to say regarding failure to dispute a version during cross examination,

 

“It is the duty of the cross-examiner to put all contested points to the witnesses in cross-examination. A cross-examiner who fails to do so runs the risk of having his witness criticised of recent fabrication when that witness later testifies. Leaving contradictions, improbabilities or lies undisputed is dangerous. Failure to do so would in appropriate cases lead to an adverse inference being drawn from the failure to cross-examine on the contested issues.”

 

Mathopo JA also quoted with approval from President of the Republic of South Africa v South African Rugby Football Union[7] where the Constitutional Court held,

 

“The institution of cross-examination not only constitutes a right; it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness-box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn and has been adopted and consistently followed by our courts. [My emphasis].

 

The precise nature of the imputation should be made clear to the witness so that it can be met and destroyed, particularly where the imputation relies upon inferences to be drawn from other evidence in the proceedings. It should be made clear not only that the evidence is to be challenged but also how it is to be challenged. This is so because the witness must be given an opportunity to deny the challenge, to call corroborative evidence, to qualify the evidence given by the witness or others and to explain contradictions on which reliance is to be placed and to explain contradictions on which reliance is to be placed.”

 

[77]       It is for the reasons stated above that I find that the accused proved not to be a credible witness when his version is compared with that of DTZ. Instead, DTZ is the person who proved to be a credible witness whose evidence fitted well into other undisputed facts of this case.

 

[78]       As for XPK, the court is equally impressed with her as a credible witness. She delayed reporting the 2014 incident. In fact, she had no intention of reporting it until she realised that she would continue being victimised by the accused. Her fear of the accused is written all over this trial. Not only were the accused’s family members scared of him, but other witnesses in this trial gave evidence of how he was notorious in the area and how they knew of his deeds before they could meet him in person. Evidence was also led on how his fearless aunt was so scared of him and how his own mother was stopped from her attempts to go and sleep at her sister’s place with her daughters. She ended up sleeping at the police station because going home would make her face the accused.

 

[79]       When a 15-year-old girl talks of her fears of the person described above, one is bound to understand her. Her life after the 2014 incident exhibited a girl living in fear of the accused. There has to be an explanation as to why XPK chose to never sleep at home as long as the accused was home, unless their mother was also present. The accused is aware of this, but he has no explanation for it except that he thinks she enjoyed sleeping at the neighbours. But even if XPK enjoyed sleeping with the neighbours, this does not explain why she would make it a point that on those days that she sleeps home, she does so only when their mother was home or else the accused was away. This also explains why the accused knew that the better way to get XPK to come and sleep home on 27 August 2020, was to inform her that he would not be at home that night.

 

[80]       A day after 27 August 2020, XPK left her home to find safety far from her neighbours. There must be an explanation as to why she had to flee that far. Her explanation is not only about running away from her rapist, but that there was now physical abuse in which she has to make her brother happy by pretending everything was okay and stop crying. The accused’s version offers no explanation to this. It gets worse when asked as to why would she fabricate a story that never happened. He had no grudge with her except trying to forge one over his non-payment of the costs for the initiation school. That explanation is stillborn in that it is the accused himself who goes on to admit that XPK expected no such payment from him, but his mother did as she also asked him to contribute. This then fails to connects to XPK. The accused’s last attempt to explain this is to the effect that his sisters wanted him out of the house does not help either as there is also no explanation as to why they would want him out of the house if he had no grudge against them and he did not rape them.

 

[81]       An explanation would not be found from the defence version on why XPK refused to sleep at her neighbour, but chose to proceed to her sister QK, the night before charges were laid with the police. Her mother and TVN also did not sleep home that night. What is clear is that these women went through too much turmoil running away from the accused. If the court does not accept their explanation on why they had to do so, answers will not be found from the accused’s version.

 

[82]       The court is also satisfied with NPM’s credibility as a witness. She had a boyfriend just next door. The incident of 08 August 2020 saw her flee to much further away and she spent a week at her aunt’s. When enough money was raised, she decided to go back to her paternal home and stay there. She only came back after the accused was arrested. Something very pressing must have happened to push her away. The only explanation comes from her and it is to the effect that she was raped by the accused who also threatened to kill her child. The accused late attempt to attribute her flight to the grudge over her using his sponge and his blanket to sleep with her lover appears to be an afterthought as it was not put to her under cross examination.

 

Similar patterns and tactics.

 

[83]       In all these victims, the accused painted a pattern that shows his character as a bully who always gets what he wants. Even as he attempts to show that he had consensual sexual intercourse with DTZ, he somehow believes that in testifying that he told DTZ that “I want things” the court will find that he asked and was given. When DTZ was crying and telling him that she will report him to the police, the accused gives her R20 saying she can go to the police and report, for no one can arrest him. Some three years later, when XPK was crying after being raped, the accused throws a phone to her and tell her to report to her mother if she wanted to. This daredevil character reflects a man who wants his victims to see him as a fearless, invincible and that reporting the incident to people in authority is a futile exercise.

 

[84]       In all his three victims, the accused shows himself as being ungrateful after violating his victims. With XPK, he informed her the very next day that her “thing” was not tight but slack. When NPM moved to stay at her aunt for a week, he sent her a text message in which he offers her money so that she can “pfutsek” to her paternal address. When one combines these with the utterances above in which the accused challenges his victims to go and report to the police or their mother, it can only portray a selfish man whose interest was simply to gratify his sexual desires. Once he is done, he behaved like a boy described in a Venda proverb, who when he quenched his thirst, he defecated in the well, forgetting that he may be thirsty again in the future.

 

[85]       The accused also displayed great discomfort in leaving his semen in his victims’ bodies. He seemed to be well aware that this could lead to him being tracked by means of DNA. It is for this reason that he was determined to see to it that DTZ should wash her vagina in the river immediately after the sexual encounter. When she refused, he decided to do it himself. What the accused may not have known is that forensic evidence did not replace reliance on viva voce evidence, it rather supplemented it. People were being tried and convicted of rape long before the advance of DNA, provided there is sufficient evidence through the word of mouth, and this is not going to stop merely because of the absence of DNA evidence; especially when such absence is a direct result of the frustrations by the accused.

 

[86]       This discomfort again comes to the fore when the accused made use of the condoms when he had sexual intercourse with XPK on two occasions on 27 August 2020. In 2014, XPK testified that once he finished having sexual intercourse with her, he instructed her to go to the main house and take bath, which she did. I have no doubt that the accused must have been very comfortable when on 08 August 2020, NPM arrived home and proceeded straight to the bathroom to wash herself as the evidence shows that they arrived home together.

 

[87]       The criticism of TVN by defence in labelling her as unreliable witness seems unfair to me. I have noted contradictions in her version with that of XPK especially when it comes to how the rape incident was reported to their mother and QK. She speculates as to when their mother was informed by XPK for the first time as she was not there. After all, XPK did not testify that TVN was present when she told their mother that she was raped. It is however not clear as to why TVN does not corroborate XPK in her evidence to the effect that when their mother arrived at QK’s place, she was in the company of TVN and that QK’s husband told her (XPK) to narrate what happened if this happened in her (TVN) presence.

 

[88]       Chances are that one of them could be forgetting as to whether TVN was present there as they seemed to have been together all the times as the sisters. According to TVN, their mother visited QK’s place twice that morning. First she was alone, and the second time she was with TVN and they met her just before they could reach QK’s place. Given the years that have lapsed and their ages, errors on who was present and who was not can happen without impacting on one’s credibility.

 

[89]       The fact that there are discrepancies is not indicative of lies or that such evidence should be thrown away. The totality of evidence and circumstances under which such statements are made should be taken into account. See S v Mkohle[8] where Nestadt JA held that contradictions per se do not lead to the rejection of a witness' evidence; they may simply be indicative of an error. Not every error made by a witness affects his/her credibility; in each case the trier of fact has to make an evaluation, taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness' evidence. He further referred with approval to S v Oosthuizen[9], where Nicholas J held that contradiction also reflects independence of witnesses and lack of conspiracy against the accused. I hold the view that the same can be said of this contradiction.

 

[90]       As for the defence’ submission that the court should accept K [....] 1’s evidence that she thought that the accused and DTZ were lovers, it takes the matter no further. It is the same K [....] 1 who had thought that the parties may have been in love who instigated that a case be reported with the police. K [....] 1 testified that she concluded that the two may have been in love because he was holding her hand. To her credit, she decided to ask in order to get confirmation before making conclusions. Surely an inference cannot be drawn that once people hold each other’s hands then they are lovers. Worse, it cannot be inferred that when people are lovers, then the sexual encounter they may have, without further engagement would be consensual. Taking this argument from her observation would replace a consent requirement with the holding of a hand. That would mean, before engaging in sexual intercourse, parties should engage in holding hands.

 

[91]       The court finds therefore that the accused is the person who caused the injury mark on the face of DTZ by slapping her with open hands. He dragged her against her wishes to the sportsground where he raped her twice. When he gave her money, it was an act of intimidation in which she was told to go and lay a charge with the police.

 

[92]       The court also finds that the accused had sexual intercourse with his sisters XPK in 2014 and on 27 August 2020, and NPM on 08 August 2020. When he realised that XPK was leaving the house, he was determined to know what her destination was and when TVN assured him that it was somewhere else and not the police station, he was relieved and sent a word of apology to XPK with the hope that she would be deterred from laying criminal charges against him. He further instilled fear in them through his utterances and merely presenting himself as a feared figure in many ways, including just making his presence felt by visiting where XPK and TVN had gone for refuge at their aunt. In so doing, he made them feel and realise that there is no refuge too far or unreachable to him.

 

[93]       The court also finds that when the accused called his mother on TVN’s phone, he was trying to monitor the movements of his mother and his siblings, XPK and TVN as by then he had already curtailed his mother’s freedom by confiscating her phone. When he told his mother that he was at the police station, he was continuing with his intimidation tactics of making his presence felt wherever they run to and that there is no refuge too far for him to reach, even at the police station. He knew there was a reason to prevent them from going there because he had committed crimes.

 

[94]       In light of the above, the court is satisfied that the case for the State has been proved beyond a reasonable doubt. The accused’s version is rejected as being improbable, false and not reasonably possibly true.

 

[95]       Verdict:         Guilty as charged – Counts 1-5.

 

Section 51 (1) of Act 105 of 1997 is applicable in respect of counts 1, 2 & 3 and section 51(2) thereof is applicable in respect of count 5.

 

T.V. RATSHIBVUMO

JUDGE OF THE HIGH COURT

 

Dates Heard:                            07-20 February 2023

 

Judgment Delivered:              22 February 2023

 

For the State:                           Adv. TJ Lusenga

Instructed by:                          DPP - Mbombela

 

For Accused:                           Adv. I Erasmus

Instructed by:                          Legal Aid South Africa - Mbombela

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