Court dismisses application to have rape charges withdrawn

2009-09-24 10:28

A defence application to have charges against two of three rape

accused withdrawn on the basis that DNA evidence could not place them at the

scene of the crime was turned down in the Khayelitsha Regional court


The application asked Magistrate Robert Matshikwe to withdraw the

charges on the basis that the state could not prove that Lwazi Mzito (19), the

son of Western Cape police commissioner Mzwandile Petros, and Lubabalo Fongoqa

(21) had committed the rape. which they are standing trial for.

A third accused, Jabu Daluxolo (27), was not part of the DNA

evidence because he has admitted to consensual sex, but denied rape.

Advocate Sakkie Maartens for Mzito asked Matshikwe not to accept

the complainant’s testimony and reject two statements she provided to the

investigating officers.

Maartens said the complainant’s testimony should be regarded as

“illogical” because she had given different versions of what had happened on the

day of the alleged rape on April 6 last year.

Maartens said the complainant had told a doctor the day after the

alleged rape that she had been raped by six men, but in her court testimony said

three men had raped her.

It was “strange and shocking” that the complainant had not

mentioned names in her first statement, but then provided names in her second


The complainant, who cannot be named to protect her identity, gave

two statements to two different investigating officers.

In one of the statements she said she had been raped by two men in

a brick house and by three men inside a shack, but Maartens said she had told

investigating officer constable Brenda Ndlela and also testified in court that

she was raped seven times inside the shack.

Another aspect was that it was unlikely for the complainant to know

who had and who hadn’t used a condom during the alleged rape, because the room

was dark and she could not see the faces of the alleged rapists.

However, state prosecutor Alfred Isaacs asked Matshikwe to dismiss

the application, which Matshikwe subsequently did, saying he would give reasons

at a later stage.

The case continues in November, when the accused are expected to

take the stand. All three men remain in custody. – West Cape News


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