Jailed rape accused freed

EVIDENCE: LIFE SENTENCE OVERTURNED BY SUPREME COURT OF APPEAL

Judge ruled 12-year-old girl made up allegations against stepfather.

Almost seven years after he was thrown in jail for raping his stepdaughter, a Free State truck driver has been exonerated and set free. The Supreme Court of Appeal (SCA) last month set aside the man’s conviction along with the life sentence that came with it.

The majority judgment, penned by Judge Yvonne Mbatha, pointed to evidence which suggested the girl – then 12 years old – had made up the allegations after her stepfather had given her a hiding for stealing a chocolate bar from the local Spar.

“Although the complainant said she was not angry at her stepfather for the beating she received after the theft of the chocolate, her evidence … demonstrates she was deeply aggrieved. She had reason to implicate him,” said Mbatha.

“The foster mother – who was called by the state in aggravation of sentence and who had lived with her for a few years – testified that she had told her that she had accused the applicant to get her own back at him,” the judge said.

The girl had first reported she was being abused to a friend whose mother had then alerted authorities, but Mbatha labelled the “ill-will” between the girl’s family and that of her friend’s – “a disturbing feature”.

“According to the applicant, he and his wife had contacted a social worker after [their daughter’s friend] and her sibling had come to complain that they had been beaten by their mother.

“When [their mother] found out about this, she swore at and abused them and said she would get back at them. He described in graphic terms the animosity between [their daughter’s friend’s] family and him,” the judge said.

Mbatha described the girl’s evidence at trial as “unsatisfactory”, highlighting a number of contradictions and inconsistencies and tearing into the state for leading her on the stand.

“It is important that I emphasise the displeasure of this court concerning the manner in which the prosecution led the evidence of the complainant,” Mbatha said.

She said it was important that child witnesses, in particular, “be allowed to state their version before clarification is sought by the prosecutor”.

“The prosecutor should not interrupt the flow of the witness’ testimony nor pose leading questions to the witness. Not only does this affect the testimony of the witness, but may have an adverse impact on the accused who is entitled to a fair trial in terms of the constitution.”

In a minority judgment, Judge Mahube Molemela said she would have dismissed the man’s appeal. She conceded that “the prosecutor adduced the evidence of the complainant in a haphazard fashion, constantly interrupting her and directing her”.

Spokesperson for the National Prosecuting Authority in the Free State Phaladi Shuping said yesterday that his offices were still considering whether or not to appeal the SCA’s judgment.

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While lockdown may feel like a prison, the reality is there is a silver lining to that dark corona cloud – and least you can get out sometimes.

Not necessarily happy times, as I discovered when I had to bury my uncle under very difficult circumstances.

It was a week with mixed emotions. You don’t realise the seriousness of going to a funeral until you experience a death in your family.

In arranging the funeral, my cousin contacted everyone who wished to be part of it.

We had to provide our full names and ID numbers for a registry that had to be taken to the police station to comply with the regulations – and there could be only 50 of us.

Now, anybody who knows anything about black funerals will know about cows being slaughtered for a traditional feast for days on end.

No more.

We could cater for only the 50, and only on the day.

And that day I experienced a first for me: like the people in rural communities, we had diphiri, or grave diggers. Everything was set for a dignified burial.

Upon arrival, you were given hand sanitiser and a number with your name to make sure no one slipped in.

But my disappointment came when the 50 of us arrived at Avalon cemetery.

There were numerous traffic officers on hand, checking the attendance register but they only allowed 35 in to pay their last respects.

I asked myself why they were allowing only a few to go through. What about the close family members?

I called little brother – he was also turned back.

I was angry, because this was uncalled for.

He also had a right to pay his last respects.

All we wanted was to be at the grave site to bid a final farewell to a member of the family.

It was a dignified private funeral.

As much as the funeral lockdown regulations are painful, it has taught us to save money from unnecessary funeral expenses.

If there’s one thing to take post-lockdown, it will be this: as much as big funerals and their even bigger cost is part of our custom, I wish the scaled-down version could last forever and become part of our everyday life.

She had reason to implicate him