IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

and

JUDGMENT

The appellant, in respect of the other two rape counts, after certain evidence was led, admitted in terms of section 220 of the Criminal Procedure Act, Act 51 of 1977, that during March and May of the year 2010, he unlawfully had sexual intercourse with the other two complainants against their will. He also admitted that the incidents where he raped his victihns, occurred at the derelict building of the old Northlink College in Belhar.
It appears that these admissions mainly came about after the result of the DNA forensic report became available and the appellant’s DNA genetic material was found in the semen that was deposited on the panties of both complainants. In respect of count 2, the DNA material that was found on the complainant’s pants, excluded the appellant. The appellant; pursuant to the admissions, elected not to testify in the defence case. He also did not call any other witnesses to testify on his behalf.
The evidence of the state in respect of count 2, can be summarised as follows. The complainant testified: that the appellant is known to her. On the.day in question in April 2010, she agreed to walk with him to a local shop, where Lotto tickets are sold. They proceeded to walk in the direction of the shop. On the way, and in order to take a shortcut, they proceeded to walk through the premises of the old Northlmk College, which is presently a derelict building. As they were walking, the appellant suddenly forced her to go into one of the open derelict rooms of the building.
In the room, he pulled at the front of her pants and said she must undress. As a result of the force used, her pants started to tear in the front. According to her, the appellant stared at her in a threatening manner, as if he wants to injure her. She then decided to undress herself. The appellant ordered her to lie on the ground, where he forcefully had sexual intercourse with her. Thereafter he told her not to tell anyone and she agreed. They left the old building and he accompanied her to her aunt’s house after the incident.

At the house, she immediately washed her entire body. She also noticed certain bloodstains on her panty, which she washed. She did not inform anyone at the house of the incident, but later that day, told her boyfriend, Morne Davids, that the appellant had raped her. She requested her boyfriend not to do anything or to report the matter to the police.

Nazeema Andrews confirms that the complainant and the appellant left her premises at about 1 p.m. on the day in question and that the complainant’s boyfriend was playing dominoes her place. According to her, she was informed about the incident about two days after it was allegedly committed. Nazeema further testified that the appellant accompanied the complainant home and stood in her yard for a while before he left.
The main attack against the evidence of the complainant was that she was not a reliable and credible witness. According to the appellant, there was some contradiction between her testimony and that of her boyfriend, Davids, pertaining to the time period when she and the appellant left and returned to her aunt’s premises. Furthermore, according to the appellant, the complainant’s failure to not immediately report the incident to the police, is indicative that she was not sexually abused by him and the absence of his DNA genetic material on her pants must be a further indication that he did not rape her.

om op rekord te plaas dat die beskuldigde wel met die klaagster was op die dg van die voorvaf, Agbare. Hulle het gaan Lotto tickets koop in Befhar. Hy het die klaagster gaan haai om dit te doen, Agbare. Na dit, het hy weer na klaagster. se huis toe gegaan, waar hy dominoes gespeel het. Hy ontken alles verder, Agbare
The complainant, with regard to the main point in dispute,
testified as follows:

The evidence of the complainant clearly indicates before, during and after the rape, that she was scared and frightened of the appellant. She also testified, in no uncertain terms, that her fear was induced by the violent and threatening, conduct of te appellant and that he forced himself on to her. He grabbed at the front of her pants and it was torn. In this circumstances, it is inconceivable to suggest that there was consent to the sexual penetration.
The trial magistrate adopted a correct approach in evaluating t h e evidence of the c om p I a i nant. The c ontra d i cti ons all uded to between the evidence of the complainant and her boyfriend regarding the time she left her aunt's premises with the appellant and when they arrived back, was properly considered by the trial court. The complainant also corrected the issue regarding her poIice statement, when it was mentioned that the appellant pushed her towards the ground. In my view the trial court correctly found the contra diet ions to be min or and did not impact on the overall trustworthiness and credence of her evidence.

The criticism levelled at the complainant for the delay in report the incident to the police, is misplaced. The complainant’s version that she did not want to go immediately to the police station and only went a day or two later with her aunt and a group of other persons to the police., cannot be regarded as improbable. It, therefore, does not impact negatively on her credibility.

2. The correct approach, both as a matter of law and of iogic, is to recognise that the accused’s silence adds nothing to the strength of the prosecution.

4. The prosecution case must be evaluated on its own merits and without purporting to bolster it, specially by reference to the accused’s exercise of his rights of silence.”
The complainant’s version in respect of count 2 stands undisturbed. It is also noteworthy that the .complainant in court 2 testified that she was taken to the same place, where the appellant admitted he raped the other two complainants. All three incidents occurred within a period of three months and are strikingly similar in the manner appellant requested the complainants to walk with him. He then took them to this derelict building called Northlink College. In fact the complainant in respect of count 1, is his cousin.

On a conspectus of all the evidence, I am satisfied that the trial court adopted the correct approach in accepting the evidence of the complainant and in finding that the state proved its case beyond a reasonable doubt. It follows that the appeal against the conviction of count 2 cannot succeed.

In the result, the following order is made:

The appeal against the conviction of count 2, is dismissed.
LE GRANGE, J
I agree