Durban – A teenage and his brother-in-law have been aquitted of the rape of a schoolgirl, in which the sexual acts were filmed on a cellphone and circulated, because of insufficient evidence.

 Darren Mogany, 19, and Adish Deonarain, 26, were on Wednesday acquitted of two counts of rape by the Durban Magistrate’s Court.

Deonarain was cleared because witnesses corroborated his version of events: That he had not taken part, or filmed, the sexual activity.

Mogany was cleared of rape because testimony by a friend of the teenage girl had contradicted the complainant’s version of events.

However, magistrate Sharon Marks found Mogany guilty on three charges: creating, keeping and distribution of child pornography after he filmed the sexual acts on a cellphone, and sent it to other people.

He will be sentenced in June.

Deonarain and Mogany were aquitted of procuring a child for the production of child pornography.

Mogany and Deonarain had been accused of spiking a schoolgirl’s drink and raping her on July 30, 2010.

The video of the incident went viral on cellphone networks before the pair were arrested last year when the complainant, who is now 19, laid charges against them.

The incident had happened at Mogany’s home in Merebank after a group of teenagers had bunked school and indulged in alcohol and dagga.

Magistrate Marks said the court could not accept that the video had been “unwittingly” distributed as it was clear from the evidence that Mogany had showed it to others at the house that day.

“His utterance of the words that it was like ‘Phoenix 2’ (another sex video that had been sent around), him Bluetoothing it to others, shows that he had the intention to make the video,” she said.

In 2009, a five-minute-long cellphone video clip did the rounds among school pupils in the Phoenix area before being distributed via Bluetooth to countless cellphones throughout the province. That video showed a giggling 16-year-old girl naked on a bed while four boys in full school uniform appeared to have sex with her.

Marks said that Mogany had been evasive when some questions were put to him, “like why he inserted the beer bottle into the complainant’s vagina, why he had exposed her breasts if the video was meant to be a momento, and the reasons why he had made the video in the first place”.

 On the decision to acquit Mogany and Deonarain on the rape charges, the court had considered the state of the complainant in the video, the magistrate said.

“She was passed out, so to speak, but what was pertinent about this evidence is that her eyes were closed through the whole recording, but when she testified she said she saw what happened,” Marks said.

The complainant had earlier testified that Mogany had given her something to drink and when she asked for a book that she had lent him, he took her upstairs to a bedroom.

“I was drowsy and I didn’t have any strength,” she had testified. “When I opened my eyes, I was naked on the bed and he was having intercourse with me.”

The teen claimed Deonarain appeared later, in a celebratory mood from passing his driver’s test, and he too had intercourse with her.

While drifting in and out of consciousness at the time, she had said she seen Mogany recording the incident and tried to push them away, but she was too weak.

Marks said the video corroborated the evidence relating to the other counts against Mogany – but not the rape charges against the two accused.

And although the complainant had testified, she said the court could not rely on single witness evidence.

Marks said the only evidence that the court could rely on that was factual, was the video.

“There is no corroborating evidence to implicate (Deonarain),” said Marks, when she acquitted the father of two of all charges.

Speaking to the Daily News outside court later, Deonarain said justice had been done and he could now finally live his life in peace.

“I had been wrongfully accused for so long,” he said. “It cost me a fortune to sort this whole thing out and it had put me in a situation where I couldn’t even take my children to visit their grandparents in Merebank.”

Deonarain said the trial had impacted on his life drastically and he would have not made it through without the support of his mother and wife.

“As much as this whole thing was horrific for me, imagine what my mother and wife were going through,” he said.

Neither the complainant nor her family were in court yesterday.

Daily News

Durban – A teenager was jailed for eight years by the Esikhawini Regional Court on Thursday for raping his younger sister, KwaZulu-Natal police said.

The 15-year-old boy raped his six-year-old sister in December last year while their grandparents had gone to church, Captain Thulani Zwane said.

The girl was sleeping when her brother called her into his room and raped her.

“When the siblings’ grandmother came back from church, she noticed that the girl was not walking properly and questioned her. She confirmed that her brother had raped her,” he said.

The matter was reported to the police. – Sapa

Johannesburg – Former president Nelson Mandela remains conscious in hospital after he was re-admitted due to a lung infection, the presidency said on Thursday.

“He is conscious,” said presidential spokesman Mac Maharaj.

Maharaj said he had confirmed during an interview with the BBC that Mandela was conscious when taken to an undisclosed hospital just before midnight on Wednesday.

“In the interview they asked whether when he was taken to hospital he was conscious… I confirmed that.”

Maharaj said that given Mandela’s age and medical history, the doctors’ “acted with the greatest act of caution and responsibility” and made a decision to send him to hospital.

“He is receiving treatment to deal with the infection and to keep him comfortable.”

Maharaj said infections spread rapidly. Asked if this was the case with Mandela, he answered: “They always do.”

Meanwhile, journalists began setting up cameras outside 1 Military Hospital in Pretoria anticipating that Mandela might have been admitted there.

Soldiers manned the gate and turned away media cars trying to enter the hospital.

Reporters were at the hospital to cover Deputy Defence Minister Thabang Makwetla’s visit to soldiers wounded during a battle with rebels in the Central African Republic last weekend.

Earlier this month, Mandela was admitted to a Pretoria hospital for a scheduled check-up. He was discharged the following day.

In December, Mandela underwent an operation to remove gallstones and to treat the recurring lung infection. He was discharged after an 18-day stay and placed under home-based high care at his Houghton residence.

In January, the presidency said Mandela had made a full recovery from the surgery and continued to improve.

In February 2012, he was admitted to hospital with a stomach ailment. At the time, the presidency said Mandela underwent a diagnostic procedure to investigate the cause of a long-standing abdominal complaint.

In January 2011, Mandela was taken to Milpark Hospital for routine tests relating to respiratory problems.

Mandela’s last major public appearance was in July 2010, at the final of the Fifa World Cup at Soccer City stadium in Johannesburg.

Since then he has spent his time between Johannesburg and his ancestral village of Qunu in the Eastern Cape.

Mandela has a long history of lung problems, dating back to the time when he was a political prisoner on Robben Island during apartheid. While in jail he contracted tuberculosis. – Sapa

Pretoria – Two bail conditions imposed on murder accused paralympian Oscar Pistorius were set aside by the High Court in Pretoria on Thursday.

They related to his presence at his home at the Silverwoods Country Estate, and that he report to the Brooklyn police station twice a week.

Judge Bert Bam said these were not listed in the court order of February 22.

“These two conditions should be disregarded,” Bam said.

Pistorius, who was arrested on February 14 after Steenkamp was shot dead in his Pretoria home, was not present for the appeal.

Pistorius’s had appealed against the limitation on him visiting his home, and had argued that the visits to the police station unnecessarily exposed him to the criminal justice system. 

Pretoria magistrate Desmond Nair “misdirected himself” with the bail conditions he set for Oscar Pistorius, the High Court in Pretoria found.

“Not giving the appellant his passport was wrong,” said Judge Bert Bam, handing down judgment on Pistorius’s appeal of some of his bail conditions.

Bam said: “He has immovable assets. He is a professional athlete. He needs his passport to compete.”

Pistorius was emotional, but there was no evidence he was of “unstable mind” and needed to report to a probation officer, the judge said.

He called this “unreasonable and unfair” and unsupported by any evidence.

Pistorius can travel again after some of his bail conditions were lifted on appeal.

“He will be allowed to use his passport to travel outside the country,” said Judge Bert Bam.

“I could find no reason why the appellant should be forbidden to leave the country to compete abroad,” he said.

A condition was that he informed his attorney a week before travelling, and provided an itinerary.

He had to hand back his passport to his attorney within 24 hours of his return from travelling. – Sapa

Free State – The Ficksburg Regional Court on Thursday acquitted all seven policemen accused of the death of local protester Andries Tatane.

Regional Magistrate Hein van Niekerk found the State could not prove its case beyond reasonable doubt.

Tatane died on April 13, 2011, after police used rubber bullets and batons to subdue him during a service delivery protest in Ficksburg.

The case received huge media attention after footage of Tatane’s alleged assault by police members was broadcast nationally. – Sapa

BY Obakeng Maje

PRETORIA – The Minister of Police, Nathi Mthethwa notes and welcomes the decision of the Supreme Court of Appeal which dismissed Frederick Barend Van Der Vywer’s claim against the Minister of Police today. 

Van der Vywer had been charged with the murder of a young woman, Ms Inge Lotz on 16 March 2005, but was acquitted. He decided to claim damages to the tune of R30 million against the Minister of Police.  The judgement dealt only with the merits of the claim and not with the quantum.

“The judgement vindicates the South African Police (SAPS).  Although the High Court had found that aspects of the investigation were less than satisfactory, the SAPS had clearly not been malicious or negligent in the investigation of the murder of Lotz as a whole” Zweli Mnisi said. 

The SAPS will continue to employ the highest professional standards when dealing with all crimes reported to it and will continue to find ways of enhancing its investigative techniques and capabilities in order to combat and prevent crime, whilst making South Africa safer and more secure.

“The Minister also noted that many commentators had stated without fully taking all the facts into account that there had been a miscarriage of justice.  There was no such miscarriage and in fact, this judgment confirms that the truth has prevailed and the Court made the correct decision” Ministry of Police spokesperson Mnisi said.

Follow us on Twitter@Taung_DailyNews

KwaZulu-Natal – The body of a prominent KwaZulu-Natal businessman has been found floating in the Tugela River, police said on Thursday.

Residents saw the corpse and called the police, Lieutenant-Colonel Vincent Mdunge said.

“(We) found that it was the body of a 63-year-old man. He had suffered multiple stab wounds.”

Eyewitness News named him as Nhlanhla Gasa, an associate to President Jacob Zuma, and the father of South African TV personality Noni Gasa.

Police found his vehicle, a Jaguar, burnt beyond recognition several metres away.

“Officers then went to his home in Umhlanga and there they found blood around the house. This confirms that the attack started at his house and he was then taken to the river.”

No valuables were taken from the house. A case of murder with aggravating circumstances and malicious damage to property was opened with the Durban North police.

No arrests had been made. – Sapa

Johannesburg – The ANC is not in the diamond business and does not know why South African troops were sent to the Central African Republic (CAR), the party said on Thursday morning.

“We are not in the business of business; we are in business of politics, and our business of politics has been done in South Africa,” spokesman Jackson Mthembu said.

“We are not in the business of diamonds, we are in the business of politics.”

Mthembu was responding to an article in the Mail & Guardian, according to which the South African military’s involvement in the CAR had been entwined with ANC-linked deals.

It reported that Didier Pereira, a special adviser to ousted CAR president Francois Bozize, partnered with “ANC hard man” Joshua Nxumalo and the ANC’s funding arm, Chancellor House, to secure a diamond export monopoly from in the CAR.

In 2006 Pereira signed a memorandum of understanding (MOU) with the CAR mining ministry. It was intended to create a public-private partnership, Inala Centrafrique. A South African company, Serengeti Group, which was majority-owned by Nxumalo, had a 65 percent stake in it.

Inala’s attempts to control diamond mining in the CAR failed by March 2008, the M&G said.

Mthembu said the ANC was not a signatory to the MOU.

“This matter started in 2006… To my knowledge, the ANC is not a signatory,” he said.

“Secondly the ANC has no interest in the CAR… We don’t know what was uploaded in the MOU. The ANC cannot comment on why troops were deployed to the CAR, only government can comment on that.”

He said the MOU was signed long before Jacob Zuma became president.

“That was under comrade Thabo Mbeki’s time. We think people who can explain why our troops were there [in the CAR] is our government and the SA National Defence Force.”

Mthembu said the ANC did not get involved in government matters.

“We don’t interfere on issues of government. As the ANC we have no business interests. It is very disingenuous for the ANC’s name to be dragged [into this].”

Last weekend, 13 SANDF soldiers were killed and 27 wounded in the CAR during an attack by rebels.

Bozize came to power in 2003 when he toppled his predecessor, Ange-Felix Patasse, in a coup. – Sapa

Kimberley – The Steenkamp murder and rape trial has been postponed and will resume in September this year.

Only 16 out of the 91 witnesses have so far been ticked off the list. The defence has yet to cross examine the investigating officer, Colonel Dick de Waal. De Waal testified for a second day yesterday.

The state has indicated that the witness list is subject to change.

The legal representatives of the 16-year-old accused are still deciding whether to call their own set of witnesses and have predicted that court proceedings could continue until next year.

Northern Cape High Court Judge President Frans Kgomo yesterday booked September 2 to 13 for the trial to resume and provisionally another four weeks from October 21 until November 15.

The accused will remain in the care of his guardians.

Kgomo yesterday warned the media not to “cross the red line” by approaching witnesses or potential witnesses.

This follows a Sunday newspaper article where Deon Steenkamp’s sister, Marianne Smith, was interviewed before she had testified in court.

Kgomo stated that media interference would “complicate matters”.

“If it persists, I will prevent the media from attending the trial. Family members participated in various media interviews while one newspaper published a story after speaking to the accused.”

Potchefstroom – The North West University is unaware of any new evidence regarding the drowning death of a student at its Potchefstroom campus last year, it said on Wednesday.

“The university is not aware of any new, concrete evidence or information that has been verified by an independent arbitrator. If  there is, the university will greatly appreciate it if such information is made available to us,” said vice-chancellor Theuns Eloff.

“The university awaits a formal response from  1/8Higher Education and Training 3/8 Minister  1/8Blade 3/8 Nzimande regarding this new investigation, and again we pledge our full co-operation and assistance to him and the Hawks.”

A first-year Bachelor of Engineering student, Thabang Makhoang, drowned in the swimming pool of the university in January 2012.

Makhoang, from Wolmaransstad, was with 76 other students when he  drowned after they participated in a fruit festival.

His body was found at the bottom of the pool by another group of  students who went for a swim later.

Eloff said that in 2012, Nzimande asked for an inquiry into Makhoang’s death and that the university pledged its full support and co-operation.

“It also gave its full support to the police in their investigation, and the university launched its own investigation that was headed by two senior independent advocates Vusi Pikoli SC and Lourens de Koning SC.”

The outcome of the independent investigation and the subsequent report was given to the deputy director general at the department of higher education, he said.

According to a report on the university’s website, the independent investigators concluded that no foul play was involved in Makhoang’s death, and no person or entity could be held accountable for causing the death through negligence or otherwise. – Sapa