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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

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

 

                                                                                                Case No:  CC 82/2018

                                                                                                Date Delivered:  11/12/18

 

In the matter between:

 

THE STATE

and

SAKHIWO DIKI

 

JUDGMENT

 

MAKAULA J:

 

[1]        The accused is charged with three counts that is Count 1: Housebreaking with the intent to commit rape, Count 2: Rape and Count 3: Attempted Murder.  In respect of Count 1 the State alleged that on or about 11 May 2018 and at or near Endlovini Administrative Area, Kei Road, in the district of King William’s Town, the accused did unlawfully and intentionally break into, and enter, the house of N E T with the intent to commit rape. 

[2]        Count 2, Rape in that on or about the same date and place mentioned in count 1 the accused did unlawfully and intentionally commit an act of sexual penetration with the complainant, N E T, a 60 year old woman, by having intercourse with her per vaginam without her consent and against her will.

Count 3, attempted murder in that upon or about the same date time and place mentioned in count 1, the accused did unlawfully and intentionally attempt to kill N E T by stabbing her repeatedly all over her body and strangling her.

[3]        The accused pleaded not guilty to counts 1 and 2 and guilty to count 3.  In lieu of his plea the accused made a plea explanation. Summarily the accused in his plea explanation stated that his pleading not guilty to count 1 and 2 and guilty to count 3 in that on the date and at the place mentioned in count 1 he unlawfully and intentionally attempted to kill N E T by stabbing her repeatedly all over her body.  He stated that on his way home he saw an unknown lady crossing the street in which he was walking.  He asked her to give him a sum of R18.00 to buy a litre of wine.  The lady told him that she did not have money.  He followed her into a shack.  Inside the shack he again asked for money which she readily answered that she told him that she did not have money he had realised that the lady was getting angry and he slapped her across the face. The lady referred to is the complainant.  The complainant went towards the cupboard.  He thought that she was looking for a weapon.  The accused took out a pocket knife and stabbed her several times all over her body.  He thereafter left and went home. 

[4]        The State called the evidence of the complainant i.e. N T who testified that she was 60 years old.  On the day in question during the day she went to a place where as elderly people are provided with food.  In the afternoon she went to her neighbour’s house to watch television.  In the evening she left for her shack.  Upon entering she locked the door using a chain and a padlock.  Immediately thereafter she felt a bang on the door.  The door was kicked open.  A male person entered the shack and went for her.  The man strangled her and uttered words to the affect that he was going to rape her up until she defecates.  He took out a knife and stabbed her as she was lying on her stomach on the bed several times on her back.  He turned her over and stabbed her several times on the frontal part of her body, thighs, on her arms and hands.  The person then cut off her panty with a knife and then forcefully had sexual intercourse with her.  After he finished raped her, he passed out on the floor next to her bed.  It is then that she got an opportunity of running to her neighbour’s house where she reported the incident.  Police were phoned and arrived in the early hours of the morning.  She was taken to Grey Hospital in King William’s Town where she was sutured.  Thereafter, she was transferred to Bhisho Hospital.  She was detained for two days.  She learnt that the person who had raped her was apprehended by community members.  She remained adamant under cross-examination that the accused is the person who raped her.  She denied that accused ever asked for a sum of R18. 00 from her.  She further denied vehemently that the accused did not rape her. 

[5]        The second witness called was L V K.  She testified that she is the neighbour of the complaint.  On Saturday after 10pm she was asleep at her place when she heard the complainant knocking at the door screaming that she was dying.  She opened for the complainant and realised that she was badly injured and bleeding.  The complainant narrated the story to her as she testified in court.  The following day on Sunday while at her place, she heard a commotion in the street.  When she peeped through she noticed that it was community members who claimed they arrested the person who had raped the complainant.  She was unable to see who that person was as he had been surrounded by the local people.

[6]        The complainant was attended and treated by Dr Y N on 12 May 2018.  She also completed the medical report.  However, she was not available to testify.  The State called the Chief Medical Officer for Grahamstown to assist with the J88.  There is nothing he added other than explaining some of the findings recorded on the J88.

[7]        The J88 reflects that the complainant sustained plus minus thirty stab wounds all over her body.  The diagram reflects lacerations and abrasions.  The lacerations vary from 1cm to 4 cm.  She sustained abrasions on the chest and right hip. Lacerations on the back, buttocks, thighs, neck and arms.  She also sustained strangulation marks.  The doctor noted that some of the injuries were bleeding.  It is noted on the J88 that she was in shock and in pain.

[8]        The Doctor noted that the clitoris was slightly swollen, urethral orifice was swollen and with blood.  Similarly, the labia majora and minora were swollen, bloody and tender.  There was a tear on the vagina at 6 o’clock.  She concluded that the complainant was sexually assaulted.

[9]        The accused testified that at about 20h00, he was from a tavern with a friend.  They met one of his co-workers on their way home.  Both turned back to the tavern.  He proceeded alone.  He came across the complainant crossing the road.  He asked for R18.00 to buy liquor at a tavern which is closer to where he stayed.  The complainant told him that she had no money.  The accused followed her to her house.  He entered and persisted asking for money.  He alleges that the complainant became angry and they exchanged words.  He slapped her on the face.  The complainant proceeded towards a cupboard.  He thought that she was reaching for a weapon.  He took out his knife and stabbed her several times during a struggle he had with her.  He realised that he was wrong.  He left and went home to sleep.  He was woken up by community members the following day.  They took him away assaulting him.  Police arrived and he was arrested.  He said he was drunk but not to an extent of not knowing what he was doing.  He denied that he kicked open the door.  He further denied that he raped the complainant.

[10]      The complainant’s evidence is corroborated by the J88.  The Doctor noted fresh stab wounds and fresh vaginal injuries which were less than 24 hours old.  This suggests that they were inflicted at the same time.  The complainant testified that after she entered her house she locked the door with a chain.  It was banged open, she was strangled stabbed and raped at the same time by the same assailant.  She did not know her assailant.  She did not even know the accused.  Common sense dictates therefore that the accused is the one who broke open the door and raped her.  I say so because the accused admitted having followed the complainant to her house.  He admits further that it is him who stabbed her.

[11]      The complainant gave a straight forward account of what occurred to her.  She did not exaggerate her evidence.  She denied, to the credit of the accused, that he slapped her when it was put to her that accused did.  Her evidence is credible.  She was a good witness who became emotional when the version of the accused was put to her because she regarded it as blatant lies. 

[12]      The same cannot be said of the accused.  He can’t explain how the complainant got raped.  This should be viewed in the backdrop of the complainant’s evidence that her rape was perpetrated by the person who stabbed her.  The accused could not explain why he followed the complainant demanding R18.00 from her despite that she said she had no money.  He cannot explain why he stabbed the complainant plus minus 30 times and even on the thighs.  In the latter aspect he lied and said he fell on the floor and as he was on the floor he stabbed her on the thighs.  He further cannot explain how it occurred that the complainant sustained wounds at the back and her front part of the body.  Complainant stated that when the accused pushed her, she fell on the bed on her stomach.  The accused inflicted the back injuries at that juncture.  He turned her when he was about to rape her and stabbed her in front.  The accused lied about money aspect and his evidence stands to be rejected.  He is accordingly found guilty.     

Count 1:         Housebreaking with the intent to rape:   Guilty as charged

Count 2:         Rape:  Guilty as charged

Count 3:         Attempted Murder:  Guilty as charged

 

 

M MAKAULA

Judge of the High Court

 

 

 

For the State:                     Adv Mtsila

                                                Director of Public Prosecutions

                                                Grahamstown

 

 

For the Accused:                  Mr Solani

                                                Legal Aid

                                                Grahamstown

 

Dates Heard:                      10; 11/12/2018

 

Conviction Delivered:         11 December 2018

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