S v MRC
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Ratshibvumo J |
| Judgment Date | 20 February 2023 |
| Citation | 2023 JDR 0513 (MN) |
| Docket Number | CC 35/2023 |
Ratshibvumo J:
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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.
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.
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.
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
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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.
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.
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.
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He continued having sexual intercourse with her until he finished, and pulled out his penis.
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.
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.
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.
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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.
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.
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
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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.
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.
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.
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
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only provisionally accepted as it is hearsay evidence, until such time that TVN was called to testify.
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...
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