S v Liphadzi

• Jurisdiction: South Africa
• Judge: Duvenhage AJ
• Judgment Date: 03 April 2006
• Docket Number: CC05/2005
• Court: Venda Provincial Division
• Hearing Date: 03 April 2006
• Citation: 2006 JDR 0481 (V)

Duvenhage AJ:

We have reached the end of the state's case in this matter. The state closed its case, and then there was an application in terms of section 174 of the Criminal Procedure Act 1977. I will now proceed to give my judgment on this.

1.

The accused, Thinandaba Reckson Liphadzi, a male person, 33 years of age, appears before this court on a charge of rape; in that on diverse occasions from May 2004 to 28 September 2004 the accused had sexual intercourse with one Azwinhangizi Christinah Madau, a female person, without her

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consent. In other words, the allegation is that he raped her on various occasions.

1.1

In the alternative accused is charged with contravening section 14(1)(a) of Act 23 of 1957, in that the accused on diverse occasions during the same period as mentioned in the main count, had sexual intercourse with Azwihangwisi Christinah Madau, a minor female who was 14 years of age at the time. In other words, she was a female under the age of 16 years.

1.2

A further alternative is one of incest, in that on diverse occasions during the same period as in the main count and the first alternative, the accused, being a male person, unlawfully and intentionally had sexual intercourse with Azwihangwisi Christinah Madau, a female person, a blood relative of the accused. The accused is the uncle of the complainant, and the accused is a person who is legally prohibited from marrying the complainant.

The accused pleaded not guilty to all these counts.

2.

During the trial the state led the evidence of

2.1

Azwihangwisi Christinah Madau, that is the complainant;

2.2

Cahtharine Azwindaba Liphadzi, the mother of the complainant;

2.3

Dr Esther Mashapha.

3.

The State then closed its case and Adv Madzaga applied in terms of section 174 of the Criminal Procedure Act 1977 for

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the discharge of the accused. The state opposed the application.

4.

Some of the material aspects of the evidence for the state may be summarised as follows:

4.1

Complainant, Azwihangwisi Christinah Madau, was the first witness that the state called. She stated that during May 2005 she was at the home of her grandmother. She was still in bed, the accused came there, undressed himself and he got into bed with her. The complainant then ran away. Accused did not do anything to her. Complainant reported the incident to her grandmother, who reprimanded the accused. The evidence of the complainant is further to the effect that she was never assaulted or raped by accused at her grandmother's home. On 28 September 2004 she was at her mother's place. Her mother had left for work. Apparently the complainant stays with her grandmother and sometimes visits her mother. This was one of the occasions when she visited her mother. Complainant was still in bed and sleeping. In bed with her was another child, Lutendu Madau. When complainant woke up, she found that accused was on top of her and he had already inserted his "private parts" into her vagina. She managed to slip from under the accused and ran away. When she got outside, one Mpho, a girl of 13 years, had just arrived. Mpho said to her that they will report the matter to the

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mother of the complainant when the mother comes home. They went on to clean the home. That is now Mpho and the complainant. Later accused got out of the hut and complainant and Mpho went into the hut and did some work there. Accused then came in and fondled the breasts of complainant and Mpho. Mpho then went out and took a hand hoe and started to work with it outside. The accused then fondled the breasts of complainant. She was then again raped by the accused, who threatened to assault her. Later her mother came home, but she did not tell her mother immediately. She first accompanied some of her friends and then told her mother.

4.2

It is immediately strange that if she was raped by accused on two occasions on the same day that she did not tell...