A man who was convicted and sentenced for kidnap and rape has been released from jail after Gauteng High Court, Johannesburg Judge S Yacoob, with Acting Judge T Bokako in agreement, found there was no evidence that he committed the crime.
Judge Yacoob ruled that the State failed to prove its case beyond a reasonable doubt, setting aside the conviction and sentence order of the Regional Court, Johannesburg and instructing the head of the prison in which he was incarcerated to release him. He had been convicted in 2017 and sentenced to an effective seven years’ imprisonment. He approached the High Court with the leave of the court to appeal his conviction.
The woman, a former inmate herself, claimed she had been with her friends at a party on 17 January 2015, where they had all been drinking. At about 8pm she arrived at her home and had her baby with her. The accused, whom she knew, was at the gate with some people drinking, and he insulted her as she passed. She went to her room.
She said the accused then came to her room, accusing her of lying about him, saying he had killed someone. She told him she did not know about that, and whoever said that must come and tell her when did she say that. The accused then took a knife out from his waist and said she must go with him to this person.
She then followed him to his room on the same property. When she arrived, he told her to undress herself "to finish things". She said she tried to reason with him, but he slapped her. She then undressed as she was afraid. The accused then also undressed his bottom half, told her to lie on the bed, climbed on top of her, and raped her. According to her, she did not say anything, but was crying. He then told her to dress up and gave her R50, which she refused, saying she was not selling her body. He said if she told anyone, he would kill her and run away to KwaZulu-Natal.
The woman said she went to the police station and was taken to another room where she was told her statement would be taken. When she got to that room, they told her to sleep on the bench and they would take her statement when she woke up and was sober. When she woke up, she began giving her statement. After her statement was taken, she was then taken to the clinic to be examined.
However, the accused testified that they had been in a love relationship since 2012. This was confirmed by his cousin. He denied having kidnapped her and raped her. He testified that on the day in question he saw her in the morning washing clothes in front of where she lives. She called him to her. They greeted each other, and she asked him what was going on because they had not seen each other for a long time. He responded that there was no problem and that he had been busy.
He told her that when she had finished doing her washing, she should come to his place because he would like to see her. This she did. They then kissed for a long time and then had consensual sexual intercourse. All this happened between around 9am and 10am or 11am.
In the judgment, Judge Yacoob said: "Had the magistrate examined the State’s case through as clear a lens as he examined that of the accused, he may have identified the inherent improbability in someone walking behind a person who is ostensibly forcing them to go with them at knifepoint. If that was the case, there was nothing stopping the woman from simply not going with the accused, and going back to her room.
"The contradiction between the evidence of the woman and investigating officer regarding her being drunk and having to take a nap in the trauma centre, but did not smell of alcohol… That, when examined by the nurse in the early hours of the morning, the DNA sample taken did not show sufficient male DNA for a useful analysis. This does not support the state’s case. If it supports any case at all, it supports the accused’s version that intercourse happened early the previous day."
Judge Yacoob also frowned at the fact that the state did not call any of her friends who were allegedly with her that day, particularly in the morning, either while she was doing her washing, or at the party, or when she arrived home in the evening and was allegedly insulted by the accused, to corroborated that part of her version.
"In my view it is clear that there is reasonable doubt in the case made out by the State, and had the magistrate properly applied the legal principles he quoted in his judgment, he would have been bound to acquit the accused," Judge Yacoob wrote in the judgment.
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