Rape con­vict suc­cess­fully ap­peals con­vic­tion, sen­tence

High Court sets aside his con­vic­tion, 10 year sen­tence by Prin­ci­pal Mag­is­trate Court

Observer on Saturday - - News - By Sandile Nkam­bule

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.

Ap­pel­lant

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.

Record

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.

Rea­son

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.

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