RAPE, LEGALITY AND INDECENCY S v Khumalo, S v Zondi, S v Buthelezi (unreported, NPD) Case No 219/2004

Abstract

The three accused were found guilty on various charges, including robbery and kidnapping, arising from the hijacking of an ambulance at gunpoint and the holding of the ambulance attendants as prisoners in the back of the vehicle. In respect of each of the accused, the court, per Combrink J, found (3) that their identities were not placed in issue; that they could be placed on the scene of the offences by their own admission; and that all other relevant facts relating to the charges were common cause, apart from the defence of coercion, which each accused raised, unsuccessfully (in the absence of any credible evidence supporting this defence (see 12, 15)). The court relied on the testimony of two accomplice witnesses, and whilst the court noted the need to be cautious in accepting such evidence, it found that there was abundant evidence corroborating the accomplices’ testimony, that a number of safeguards were present in order to be able to readily accept it, and that the doctrine of common purpose provided further probative assistance (13). The focus of this note is, however, only on one portion of the events which took place, namely the additional charges against the third accused, Buthelezi, of rape, attempted rape and indecent assault. After the hijacking of the vehicle, the two ambulance attendants, Gladness Mdlalose and Mdu Zungu, were joined by Buthelezi in the rear of the ambulance, whilst the other two accused, Khumalo and Zondi, sat in front of the ambulance, with the sliding window between the front and the rear of the ambulance, closed (17-18, read with 7). The court held, in respect of these two accused, that it could not be held that they had performed any act of associative conduct in respect of the charges of rape, attempted rape and indecent assault, thus excluding the possibility of common purpose in this regard (15), and thus their liability will not be further discussed below. Whilst the vehicle was in transit, Buthelezi forced the two attendants to undress, by slapping them (particularly Mdlalose) on the face, and by threatening them with a firearm. When they were both naked, Butheleziinstructed Zungu to engage in sexual intercourse with Mdlalose. Their refusals fell on deaf ears, resulting in further threats and assaults. Mdlalose was forced to lie on her back on a bunk and Zungu was instructed to mount her and to have intercourse with her. However, as a result of stress, Zungu was unable to attain an erection and thus intercourse could not follow. Buthelezi then inserted his finger into the complainant’s vagina, ostensibly to ease intercourse between Zungu and herself. He further executed masturbatory movements with Zungu’s penis, endeavouring to arouse Zungu in order to facilitate penetration. Since that was also unsuccessful, Buthelezi used his fingers to push Zungu’s semi-erect penis into the complainant’s vagina, notwithstanding her protests. Zungu, according to the evidence, tried his best not to comply, but was forced to attempt intercourse (8). Buthelezi apparently lost patience and told Zungu to get off and that he, Buthelezi, would show him how it should be done. He instructed Mdlalose to position herself in such a manner that he could have intercourse with her against her will. The complainant delayed as long as possible, but, whenintercourse seemed inevitable, she asked him to use a condom. Not being able to find one in the rear of the ambulance, Buthelezi asked the other two accused in the front of the vehicle for a condom. At that time the first accused told Buthelezi to give the ambulance attendants their clothes back so that they could be released. It then transpired that they were released, and had to walk a considerable distance to summon assistance (8-9).