S v Nxele

• Jurisdiction: South Africa
• Judge: Vahed J, Ploos Van Amstel J and Bezuidenhout AJ
• Judgment Date: 27 February 2014
• Docket Number: AR 624/12
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 30 January 2014
• Citation: 2014 JDR 0484 (KZP)

Vahed J:

[1]

The appellant was indicted in the court a quo before Mogwera AJ, sitting with two assessors, on four counts. On count one he faced a charge of robbery with aggravating circumstances and on counts two, three and four he faced charges of rape. At the conclusion of the trial he was acquitted on the first count but found guilty on the three counts of rape and sentenced to an effective term of 15 years' imprisonment. His appeal serves before us against conviction only, leave in that regard having been granted by the court a quo.

[2]

The respondent led the evidence of five witnesses in support of its case against the appellant. Those witnesses were the two complainants, Miss Mildred

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Vahed J

Luthuli and Miss Thobile Happiness Ngcongo, Lungisani Mdluli ("Mdluli"), Constable Zwane ("Zwane") and Warrant Officer Zaca ("Zaca"). Their evidence can be collectively summarized.

[3]

The two complainants, Miss Ngcongo and Miss Luthuli, were employed at the Oasis Steers Restaurant in Cato Ridge. On 8 May 2010, after their shift ended at 20h00, they were making their way home by firstly accepting a lift from a customer who left them at the overhead bridge over the N3 National Highway in Cato Ridge in the vicinity of the Dunbar Shopping Centre. From the bridge they had to make their way down a steep embankment in order to get to a footpath which would lead them to their homes. They held hands to support each other while they negotiated their passage down this bank and while doing so they were accosted by three assailants, one of whom was armed with a firearm. Startled by this they both slipped and fell on their backs. The three assailants approached them and demanded cellphones and money from them and the person armed with a firearm directed his companions to search the complainants. He then covered Miss Ngcongo's face with either a jacket or a jersey and she was thereafter raped by one of the assailants. During the course of this rape she repeatedly shook her head which caused the object covering her face to become partially dislodged and she was thereafter able to see with one eye which became exposed in that process. Being dark the lighting was poor although visibility was assisted by the lights emanating from the Shopping Centre across the Highway. At some stage the first of her rapists stopped and one of the other assailants then commenced raping her and while this was unfolding she was able to observe another of the assailants raping Miss Luthuli. She recognized Miss Luthuli's rapist. While the second of the rapes was being perpetrated upon Miss Ngcongo a

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Vahed J

motor vehicle travelling on the N3 National Highway executed a U-turn and drove past them and during that manoeuvre the lights from that vehicle illuminated the scene and it was then that she was able to identify the person raping her at the time. The actions of that motor vehicle also disturbed the assailants who fled. She identified the person who raped Miss Luthuli as one Sibonelo Shezi and the second of her rapists as someone she knew as Mdlwembe. He was the one armed with the firearm.

[4]

After the assailants fled the complainants took a few moments to compose themselves and then decided to head in the direction of the Dunbar Shopping Center in order to make a phone call to report what had happened to them. A passing motorist assisted them and summoned the police. While waiting there for the police a security guard at the premises approached them and they informed him that they had been accosted and robbed. The security guard went off because apparently he had seen someone lurking in the vicinity. While the two complainants were alone Miss Ngcongo told Miss Luthuli that she knew the identity of Miss Luthuli's rapist and identified him to her as Sibonelo Shezi. At that stage she said nothing about her identification of the second of her assailants. The security guard returned with Shezi and they identified him as one of the robbers. At that stage he was in possession of some of their personal belongings which included toiletries and Miss Ngcongo's sling bag.

[5]

The police arrived and they were taken back to the scene of their attack where some of their other personal belongings were recovered and they then went home where, according to Miss Ngcongo, she reported the incident to her mother

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