In the high court of south africa cape of good hope provincial division



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REPORTABLE


IN THE HIGH COURT OF SOUTH AFRICA

CAPE OF GOOD HOPE PROVINCIAL DIVISION

CASE NO: SS131/2002
In the matter between:

THE STATE
versus
RASHIED STAGGIE ACCUSED 1

RANDALL BOSCH ACCUSED 2



JUDGMENT DELIVERED ON 28 JANUARY 2003
SARKIN, AJ
The accused in this matter are Rashied Staggie, accused number 1, and Randall Bosch, accused number 2. They were charged with one count of kidnapping and one count of rape in that, using a firearm, they kidnapped and raped the complainant on 22 August 2001 near Mitchells Plain, Cape Town. Accused number 1 was additionally charged with one count of transgressing Article 2 of Act 75 of 1969.
After both pleaded not guilty, an interlocutory application was brought by the State for the evidence of the complainant to be given in camera and via closed circuit television. This was granted, the reasons for the first application that the complainant testifies in camera, and via closed-circuit television, but that the press could be present was the subject of an earlier extensive judgement.
The complainant in this case, Ms K, then testified in accordance with the above order. She testified that she was 19 years old, married and had a daughter who was almost 3 years old. She had grown up in Manenberg and her formal education was limited. She had not progressed further than standard 3. She was the fifth child in a family of 8 children.
She testified that the dominant gangs in the areas where she grew up were the Hard Livings, the Americans and the Jesters. Accused one, Rashied Staggie was known to her as leader of the Hard Livings gang. Her older brother, Christopher, and brother-in-law, Cyril and another relation Randall, were members of the Hard Livings gang. She knew Randall Bosch, accused two, as a member of the Hard Livings gang. Most of the time the Hard Livings and the Americans gangs fought each other.
She stated that she knew Rashied Staggie well and that he was a frequent visitor at their home, but that when he visited he did not go inside. She stated that he had been to the flat where she lived to bring bullets and a gun for her brother-in-law to use in a gang fight between the Hard Livings and the Americans. She could not remember when exactly this incident took place. She had also seen accused one at meetings of the Hard Livings gang. These meetings used to take place in various places in Manenberg, and particularly at a place called the ‘hok’ which lay near a block of flats in the vicinity. This place was usually used for gang meetings. She had attended at least two meetings with her brother in law.
The complainant became concerned about her small daughter growing up in this atmosphere and approached a policeman by the name of Fahiem Jacobs for assistance. She made a request for assistance to him after her flat had been searched by a group of policeman which included the aforesaid Jacobs looking for stolen items and illegal firearms.
The complainant was aware that her brother possessed a “zipgun” and bullets and told Jacobs that she had information regarding firearms. She told him about the gun possessed by her brother and that it was hidden in the warmer drawer of the oven and the bullets amongst her child’s nappies.
In the early evening the police returned and searched the flat again. Both the firearm and bullets were found, and her brother was arrested. He and her brother-in-law were in the flat at the time of the search.
The brother was released from custody the next day. She testified that he made no court appearance regarding the case and he was not prosecuted regarding the possession of the zipgun. She did not know why this was so, she only heard that it was because only one bullet had been seized. The evidence of the finding of the zip gun was supported by her brother, Christopher, who testified later in the trial. He testified that it was his gun and he had pleaded guilty in court to the possession of this gun.
The complainant testified further that a few months later she heard that the Hard Livings gang possessed a firearm which was being kept at the home of a friend who was a member of the gang. She saw a policeman, Fahiem Jacobs, in the street and told him about the firearm.
The house was searched but the firearm was not initially found. She then informed Jacobs that the firearm had been hidden behind a woman called Fazlin, in the clothes Fazlin was wearing. As there were no policewomen present to search the women the complainant and Fazlin were instructed to search each other. The complainant retrieved the firearm and handed it to Fahiem Jacobs whereupon both she and Fazlin were arrested and taken to Nyanga Junction police station. The complainant was also arrested to avoid suspicion. The complainant was released the following day, but Fazlin was charged for the illegal possession of the firearm.
The complainant stated that she subsequently went to see Jacobs at the Manenberg police station and expressed her concerns regarding information being leaked by the police to the Hard Livings gang. Members of the Hard Livings gang had informed her that she had provided information to the police regarding the firearm recovered from Fazlin. Fahiem Jacobs then told her to see a person called Charlotte who was a member of the SAPS and was sitting in a vehicle outside the police station.
The complainant subsequently gave information to Charlotte on more than one occasion and received payment for this information. They usually met twice a week. The complainant was not employed at the time but informed her family that she was working as a char for a white woman, so as to avert suspicion. This continued for a month or two prior to the incident in question.
The complainant testified further that she had a woman friend Des. Des was married to a man who was a member of the Americans gang. He used to beat her up and at one time he assaulted her, and as a result she had had a miscarriage. Des would come to talk to the complainant about the problems with her husband. The complainant offered to help her, and suggested that she should give information to Charlotte, about his gang activity, and about guns so that her husband would be arrested and put in jail. She agreed and the complainant took Des to see Charlotte on Tuesday, 21 August 2001. Des talked to the police in the vehicle that Charlotte was in.
On the day of the alleged rape incident, Wednesday 22 August 2001, the complainant testified that she was in her home when she saw Des standing near the driver’s window of a white motor vehicle at about mid day. Rashied Staggie, accused one, was seated in the motor vehicle. Although the windows were tinted the driver’s window had been rolled down enabling her to see accused one.
The complainant thought it strange to see Des talking to accused one. She then saw Des walk away and accused one drove away. The complainant then decided that she would visit a friend called Nazli who lived nearby to retrieve a blouse that belonged to her. Nazli was not at home. On her way back to her flat the complainant bumped into Des who would not speak to her and said she was a traitor. The complainant observed that Des had money in her hand as well as an ‘outfit’ which consists of a quantity of dagga and a mandrax tablet. The complainant suspected that the drugs and money had been obtained from accused one, as accused one had on occasion given money to people. The complainant herself had on occasion received R20, 00 from him.
The complainant returned to her flat, but left again for Nazli’s home after the television soap opera ‘Days of Our Lives’ began. Before reaching Nazli’s home, however, the complainant came across one Nico who went by the nickname of ‘Muis’. He was a member of the Hard Livings gang. The complainant asked ‘Muis’ if he had spoken to Des. He replied, however that he did not have time for traitors. The complainant thought at that time that he must have spoken to Des who knew that she was a police informant. Although ‘Muis’ walked away from the complainant she followed him and asked for a cigarette as she wished to speak to him. ‘Muis’ told her that he did not give cigarettes to traitors. The complainant nevertheless followed him to the ‘hok’ where he bought 2 ‘outfits.’ He then went to his home. The complainant knocked on the door and then entered. After passing one ‘Barcelona’ coming out of ‘Muis’s’ room she entered ‘Muis’s room. In the room she saw ‘Muis’ and Des both of whom were smoking. At that time the complainant realized that she had been exposed as a police informant and left. No one greeted her but she thought someone might have said something about a traitor.
After once again checking to see if Nazli was at home she walked home. On arriving at her building she noticed that accused one’s car was parked in front of their gate. It was still light at this stage and her brother-in-law Cyril was speaking to accused one. The complainant turned around and walked around the corner as she did not wish to see him. She knew it was accused one because she recognised the motor vehicle. She identified it as the motor vehicle in Exhibit ‘A’ and that it belonged to Rashied Staggie, accused one.
After loitering around the corner for a while the complainant started to walk back. As she did so accused one drew up alongside her in his motor vehicle. The driver’s window was partially rolled down and accused one told her that he wished to see her and told her to meet him at a place behind Pam Court and Olga Court that evening, although the complainant could not remember the specific time. The complainant never questioned accused one regarding the reason for the meeting as she did not wish to make him suspicious. The complainant then went home.
After two friends visited her the complainant walked out with them. As she was coming around in the vicinity of Olga Court she noticed accused one’s motor vehicle again and walked in the direction of the motor vehicle. Randall Bosch and two other men were in the vehicle. The complainant asked what the two men were doing in the motor vehicle. Accused one, Rashied Staggie, told her to shut up and get in the car. The complainant refused, whereupon accused one threatened to kick her in her private parts.
Accused one told accused two, who was sitting on the front seat to sit in the back. The complainant knew accused two as he was a member of the Hard Livings gang and was friendly with her brother-in-law.
The complainant then got into the front passenger seat.
Accused one then drove the vehicle passed Nyanga Junction and in the direction of Mitchell’s Plain. It was now dark and accused one parked the car near a tree along a stretch of road that was surrounded by sand and was not busy. Accused two and the two other men climbed out of the vehicle and smoked a combination of dagga and mandrax. Accused one told her that he had lost trust in her and to restore this trust she must have sex with accused two and the other two men. The complainant refused to do this whereupon accused one took out a firearm from the cubby hole. The car light was on and the back door was open behind her.
Accused one moved the firearm against her right leg and the complainant testified that she knew that something was going to be done to her, and thought that she was going to die. Accused one told her to climb into the back seat of the vehicle. She did this and was told to take her clothes off. She refused to do this. Accused one sat in the drivers seat with the firearm resting on his left knee.
Accused two then came to the open car door and told her to take her clothes off and grabbed her skirt. The complainant then told him she would take her clothes off herself, and took off her skirt and panties and placed them on top of the back seat. Accused two grabbed her right leg and tried to push her down. The complainant lay down on the back seat with her head on the arm rest of the back door on the driver’s side. Accused two then climbed into the vehicle and had sexual intercourse with her. He hurt her and she pushed his chest and told him to get off her. She was crying and asked him why he was doing this and he told her to shut up. The complainant saw that accused one was watching them in the rear view mirror. The other two males then also had sexual intercourse with her. The third male whispered to her that he did not want to do it but did not have a choice.
The complainant testified that none of the men had ejaculated in her and that after each man had raped her, he wiped his penis off on a rag with black oily marks on it.
The complainant testified that she did not give any of the men permission to have sexual intercourse with her.
The complainant then put her clothes back on and was told by accused one to climb back into the front passenger seat. He threatened her that if she told anyone about the incident she would be dead within a week. She testified that she thought he meant it.
Accused one then drove back the way they had come. The complainant testified that she was very shocked and cried continuously. She could however remember that accused one said that he wanted to see her again within the week. She thought that she was dropped of at the place where she had been picked up but she could not really remember and she had walked home.
She could not remember what time she arrived home but some people in the house were still awake. She spoke to nobody but bathed and went to sleep. She did not tell her mother about the incident because she was afraid that her mother would accost accused one and that he would then know she had spoken about the incident and would kill her.
The following day the complainant went to meet Charlotte as usual as it was a Thursday. Charlotte sensed something was wrong and asked the complainant if there was a problem. The complainant, Charlotte and a policeman with the name of Chris were in the vehicle. Charlotte told Chris to leave the vehicle. When the complainant was alone with Charlotte in the vehicle she started to cry and told Charlotte about the incident. Charlotte undertook to help her and after leaving the complainant at the Grand Parade in Cape Town went to fetch another policeman by the name of Clint. Clint told the complainant that if she made a case she would receive protection.
The complainant then decided to press charges and she was taken to the Bellville-South police station where she made a statement. The complainant was then taken into the Witness Protection Programme. Later she was taken to a doctor for a medical examination.
At this point in the proceedings the court adjourned to go on an inspection in loco and formal admissions regarding this inspection were recorded and handed in as Exhibit ‘B’ after that inspection.
The complainant also identified the photographs taken during the inspection in loco and they were handed in as Exhibit ‘E’.
The complainant stated that she had described the scene where the incident had occurred, even though it was dark. She had gone with the Investigating Officer, Inspector van Sitters, after she had made a statement at the police station, but as it was raining and he was driving fast she could not point out the scene in question. On the inspection in loco the complainant could not point out the exact spot as she testified that new buildings had been built, trees had been cut down and the area was very different to that which it had been more than a year previously.
The complainant testified that she had never seen the two other men who raped her, in addition to accused two, before, but had assisted the police in drawing up identikits which were handed in as Exhibits ‘C’ and ‘D’.
It was put to the complainant in cross examination that she had made a practice of making rape charges, for financial benefit from her earliest years, and that this was her modus videndiand that she was not raped and her allegations were false. This was vehemently denied by the complainant.
She admitted to having occasionally run away from home when she was younger as a result of her eldest brother assaulting her and sexually molesting her. She stated that she wished to get her brother and brother-in-law out of the house, as it was as a result of gang fighting between the Hard Livings and Americans that a bullet was fired into her flat which narrowly missed her child.
The complainant informed the court that all four of the girls in the family had been sexually molested by her father and that he had received a seven year jail sentence for raping one of her sisters. She stated that she had been told that she had been molested by her father when she was a baby and that he had molested her again when she was at school.
She related that on one occasion when she had left home her brother Christopher and a person by the name of Geronimo had found them at Cape Town station. She had called the police and encouraged her friend, Eva, to lay a charge of rape against her brother regarding a rape, which had taken place in her presence. She testified that she had told the police that the two men had knives and were trying to grab her. The police had confiscated the knives and arrested them for possessing dangerous weapons. She said that her mother had threatened her friend, so as to withdraw the case, because she did not want her son to go to jail. It was put to her that the rape of her friend Eva, which she had described, was a figment of her imagination and had never happened. The witness denied this very strongly and repeated that it had occurred.
The complainant testified that accused two, Randall Bosch, had been to her house frequently, even before her baby was born and before he went to jail in 1999. He apparently used to smoke (dagga) with her brother Christopher. She testified that accused one, Rashied Staggie, had come to their house on various occasions but did not go inside. While the complainant at one point averred that Rashied Staggie gave guns to her brother she denied this at another time.
The statement made by the complainant on the laying of the charges against the accused was identified by her and handed up as Exhibit ‘F’.
The complainant was questioned about the statement but no material deviances from her statement were elicited.
Defence counsel put to the witness that the rape was a conspiracy by the police to put Rashied Staggie in jail and for her to gain financially. This was again strongly denied by the complainant. She did concede that her material circumstances were better than before, now that she was in the Witness Protection Programme, but that in other respects she had lost everything, and would rather go back to her mother if she could and nothing could make up for the loss of her family.
The witness explained that she had not told her mother about the present rape as she was afraid her mother might do something drastic such as kill Rashied Staggie.
Defence counsel made much of the fact that the complainant used the word “sex” in her statement instead of the word “rape”. Complainant adequately explained, however, that she clearly meant sex without consent which as far as she was concerned meant the same thing as rape and the word sex was used in that context.
The complainant initially informed the court that she had left school over an incident which happened in the school toilets but which she could not really remember.
The complainant, over a week-end, whilst still undergoing cross-examination in this matter, tried to commit suicide by taking an overdose.
The complainant returned to court to a few days later. She explained that she could not sleep at night and was plagued by nightmares in which she was shot and stabbed and raped. She also dreamt about her daughter being raped. All of this had led to her suicide attempt.
The complainant then went on to describe the incident which happened at school when it appeared that she was between the ages of 10 and 13 years old and which lead to her leaving the school. She had been asked about these events before but she did not bring this out earlier. The complainant testified that at that time she had been raped by the father of her friend, Belinda. The complainant had been teased in the classroom by a boy about the rape case and she had hit him. She had then become hot, dizzy and faint and had gone to the toilets. She began to see herself strangely in a mirror and appeared to have had a collapse of some sort. She stated that when she opened her eyes she was lying on a bed in the sick room. She testified that she woke up and rose up off the bed in an elevated fashion. She saw herself in the air and spoke to an Imam who had been called in a foreign language and not in her own voice. She testified also about red eyes, blue hands, and having the strength of many people which she had used to push away people who were holding her down.
She described further her dreams she had whilst being in the Witness Protection Programme. She said that she was desperately lonely and just sat in the house and cried. She described how she saw things. One of the things she saw was a creature with a tail like a tokoloshe. She related how she had been unable to sleep and had been plagued all night by thoughts of this creature and thought that the best way out was to end it all.
She denied that she believed in tokoloshes and that when she had described her dream to her sister, the latter had suggested that the creature was a tokoloshe.
The complainant was cross-examined by counsel for accused one. She restated the events of rape as she said the incident occurred, as she had done on chief examination.
She said that she was shocked when she was given the R1 800. 00 for information, she had given, by Charlotte, her police handler. She stated however that the money she was given by the police had nothing to do with her laying the rape charges.
She stated that the two other men who raped her, in addition to accused two, looked like “charras” from Durban. She explained that they were not Indian, but darker than people in her community so it looked like they came from Durban.
The complainant was cross-examined rigorously and aggressively for many days by counsel for accused one and two. Despite this intensive questioning, her evidence about the rape was repeated again and again and she remained consistent throughout as far as the rapes were concerned.
The issue of the complainant not telling her mother the next day about the rape was raised so as to throw doubt on the story of the complainant. However, firstly from the evidence we know that the mother did not believe the complainant in the past about a rape case involving Eva. As was also stated by Susan Stefan in “The Protection Racket: Rape Trauma Syndrome, Psychiatric Labeling And Law in Northwestern University Law Review (Summer 1994) at 1271

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