Rape accused freed after 15 years

NEARLY 15 years after a man was accused of raping two young sisters and was sentenced to life imprisonment, he has been freed, in part because the State did not, even at the time of his belated appeal, produce forensic DNA evidence.

In a judgment penned by KwaZulu-Natal Judge Dhaya Pillay (with Judge President Achmat Jappie and Acting Judge T Mthembu concurring), the issue is raised of the constitutional right of an accused to know whether the State obtained a DNA report and what its contents are. Judge Pillay said: “It seems to me that an accused may insist on this … and such insistence may favour his or her credibility.”

The appeal was launched by Bongani Mpontshane who was charged with raping sisters, aged 10 and 8 at the time in October 2001, after breaking into their home in the early hours.

The State presented a case that the children could identify their attacker because an electric light was switched on, albeit briefly, and there was also light from the street.

The children said they knew Mpontshane. But under cross-examination, the elder conceded it took her two days before she named him and then only after prompting by her mother. She conceded she was only certain it was him after a T-shirt linking him to the crime was recovered.

Contradictions

The younger child made similar concessions under cross-examination. Judge Pillay said the evidence regarding identification was “fraught with contradictions and inconsistencies”, and while Mpontshane had not been a credible witness, he did not have to prove his innocence.

She said while it was undisputed that the children had been raped and specimens had been obtained, “the State has failed to explain why this evidence was not produced”.

“Fifteen years have passed since the samples were taken. Assuming the forensic laboratory was unable to produce the results of its tests to the trial court sitting more than two years later (they were not available at that time), it should have applied to lead fresh evidence to produce the results to this (appeal) court, irrespective of whether they were conclusive.”

The Judge said objective scientific evidence would go a long way to determining vital questions of fact and would improve efficiencies in the criminal justice system.

“It will ensure that an innocent person is not sent to jail and a guilty person is not set free. A guilty accused would be more inclined to reconsider his plea, thus sparing the complainant the trauma of reliving her ordeal.

“Bearing in mind that a huge proportion of court rolls are filled with rape and murder cases, the savings gained from these efficiencies for court services would be great … and could go to bolstering the medical and forensic services.”

The judges upheld the appeal and acquitted Mpontshane of the two rapes.