Court: justice delayed is justice denied

There was an overall duty, not only on the court, but also on the prosecution, to ensure trial ended in shortest time possible.

Judges Rishi Seegobin and Rashid Vahed

Two KwaZulu-Natal judges have overturned the conviction and effective 15-year prison sentence of a young man accused of raping an 11-year-old, because of delays in his trial.

Judges Rishi Seegobin and Rashid Vahed said it was “astounding” it had taken seven years and 46 court appearances from the time of Sihle Kunene’s arrest to his conviction.

They said the blame could be laid squarely on the presiding magistrate and prosecutor, who “deserved censure of the strongest kind” for disregarding the fair trial rights of the accused and the rights of the complainant.

The appeal matter was heard in April this year. While neither the defence nor the state raised the issue of the right to a speedy trial, it was agreed it should not be ignored by the judges. After hearing the argument, the judges ordered Kunene’s release from prison, saying they would give their reasons later. These were handed down this month.

Kunene was 18 in 2013 when he made his first appearance in the Vryheid Regional Court. He was charged with raping an 11-yearold in 2012, when he was 17. He was released on warning. He was convicted in January 2019 of two counts of rape and sentenced to an effective 15 years.

The judges gave a detailed history of the seven years of delays. They noted that the actual trial had only taken up eight days of the 46 occasions that the matter was before the court.

Two years and eight months elapsed from the time of Kunene’s arrest until the trial commenced in May 2015, paused and resumed in 2017. The prosecutor then decided the complainant should begin her evidence afresh. The consequence was that her evidence varied with her initial testimony.

“Bearing in mind that the charges were of a sexual nature involving a young girl and a young offender, there was an overall duty, not only on the court, but also on the prosecution, to ensure the trial commenced and ended within the shortest time possible.

“The conduct of the magistrate and the prosecutors requires the censure of the strongest kind. The delay was unreasonable in the extreme,” they ruled. – GroundUp