Rape under duress

PATRICIA MAGANU
Staff Writer | Tuesday January 15, 2008 00:00

Reading judgement, Senior Magistrate Thato Mujaji said that not only did she not believe Mthakathi but that his evidence helped support the complainant's story that rape occurred.

'Accused 2 says that he raped the complainant under duress because the first accused was assaulting him. If that indeed is the case, why did he not run away with the complainant and report the matter to the police,' she said.

Mujaji disregarded Mthakathi's evidence saying that it was just an excuse.
'The accused persons acted together to rape the complainant. It is clear that the two accused had non-consensual sex with the complainant,' she added.
Mthakathi and Bapedi Badi are accused of having dragged the complainant out of a shebeen on April 24, 2005, assaulted and raped her near a local river at Dukwi Village.

Mujaji said Badi failed to give the court a clear account of what happened on that night.
'He admitted to assaulting the complainant as she was rude to him. If that is the case why did he not assault her at the shebeen and leave her there, why did he have to drag her to the river? In my view, the intention was to rape her,' she stated.

She also stated that the accused persons evidence is contradicting. 'While the other accused is saying he did rape the complainant, the other is saying nothing happened at all,' she said.
According to the evidence the complainant was assaulted with sticks on the buttocks and fists on the face.

'The medical report corroborates that the complainant was severely assaulted on the face and buttocks. The sticks were found at the scene by the police and the torn shirt that she was wearing is also part of the evidence,' said the magistrate. Mujaji added that the complainant passed as a credible witness.

'She told her story clearly and remained unshaken during cross examination. Her evidence is also supported by the witnesses who saw the accused persons dragging her from the shebeen and even saw her the following day going to report the matter,' she said.
During trial the complainant told the court that she managed to escape by pretending that she had drowned in the river.

She crossed to the other side and went home.
She further ordered that the accused persons be tested for HIV and finger printed for previous convictions before sentencing. They have been remanded in custody and they will appear for sentence on January 28.