Rape convict successfully appeals conviction, sentence
High Court sets aside his conviction, 10 year sentence by Principal Magistrate Court
Arape convict has successfully moved an application at the High Court to have his conviction and 10-year sentence set aside after being found guilty and convicted by a Nhlangano Principal Magistrate.
Gcinumuzi Manana had filed a criminal appeal against the Magistrate’s decision on the conviction of rape arguing that although he pleaded guilty to this charge, this came about because he was not legally represented.
He claimed that sexual intercourse between him and the alleged survivor was consented to and that the court aquo (Magistrate) should have picked that from his evidence.
High Court Judge Nkululeko Hlophe, before handing down judgment in the appeal, stated that whether the appellant’s contention was justified by the evidence on record, the court is of the view that a thorough probing of the circumstances surrounding the act of sexual intercourse was not done which makes it difficult for the court to be certain that an innocent person has not been convicted.
“The court is of the view that the fairest thing to do is to send the matter for retrial by a different Judicial Officer or even a different court, accordingly both conviction and sentence set aside, matter referred for retrial before any court as may be found to have jurisdiction,” Judge Hlophe pronounced.
The appellant was found guilty of rape by the Nhlangano Principal Magistrate and sentenced to 10 years imprisonment and the rape in question was found to have been worsened by aggravating factors in that the appellant did not use a condom and exposed the complainant to sexually transmitted diseases including HIV and AIDS.
Judge Hlophe noted that it was not really the case of the appellant not having used a condom but the one he used burst during the process which perhaps has the same effect in law and that it is not in dispute that at the time the offence was allegedly committed, the appellant was 21, years of age while the complainant was 18 and both were attending school.
According to the common cause fact, on May 26 2017 on a Friday around 9pm the appellant and the complainant had sexual intercourse within the complainant’s parental homestead and bit further from the houses and at some bushy area away from the electric lights.
According to Judge Hlophe, it suffices to point out that whereas the appellant painted a picture of them being there to have quality time as boyfriend and girlfriend, the complainant contended otherwise.
She alleged that she had been called by the appellant who allegedly said he wanted to obtain some change from her and denied that they were an item.
The crucial fact is that whilst at that secluded area within the compound, the two ended up having sexual intercourse and the complainant said such was forced on her as she had not consented thereto whilst the appellant said she was her girlfriend.
This contention by the appellant according to Judge Hlophe features prominently on the court record and he gave his testimony after the crown had closed its case. According to the complainant, the applicant prevented her from screaming during the ordeal by closing her mouth with his hand and further claimed that he grabbed her, managed to put on a condom and went on to have sexual intercourse with her without her consent with the condom bursting in the process.
Judge Hlophe noted that it is not in dispute that she had not screamed during the ordeal and had not told anyone else about it including her parents and that she reported to the police the next morning still without her parents knowing.
These are the issues according to Judge Hlophe which the appellant took note in his argument and noted that no detail was given on how her mouth was closed, her being grabbed and the putting of a condom at the same time not withstanding that this was crucial in the matter particularly in view of the fact that the appellant was not legally represented.
No reason was again given on record why she had not informed anyone including her parents about the ordeal and why she had reported only to the police the next morning.
There was according to Judge Hlophe no probing to that regard.
In his notice of appeal, the appellant contended that the Magistrate’s Court had erred in law by convicting him on uncorroborated evidence of a single witness yet was allegedly challenged under cross-examination.
He contended further that the Magistrate’s Court had misdirected itself by failing to appreciate that after the cross-examination of the complainant and the appellant’s mitigation, the latter had only admitted to having sexual intercourse with the complainant as opposed to having raped her.
The last contention in his appeal was that the Magistrate’s Court failed to appreciate that the appellant was an unrepresented lay accused particularly in view of his alleged defence.
Judge Hlophe stated that the fairest thing to do in the circumstances with the result that a probably innocent accused person does not end up in custody with a possibly lengthy sentence when the evidence of a less than candid complainant has been considered in her favour would be to refer the matter to retrial.
It may not be in dispute that the accused person had sexual intercourse with the complainant, the only issue being that it is unclear because of lack of prober probing on how the sexual intercourse occurred including if it can be said that it discounts consent.
“In my view, Justice can only be done with a thorough probing having been carried out in this area to prevent an innocent accused person being sent to prison for a long time,” Judge Hlophe stated.
The matter has been referred to a trial to begin before such a court as the Director of Public Prosecutions (DPP) acting together with the structures within the judiciary are entitled by law to make such decisions may decide in the interest of justice taking into account the disqualification of the Principal Magistrate who heard it from again doing so.
NOT CONVINCED: High Court Judge Nkululeko Hlophe.