Rape conviction overturned

2008-07-06 00:00

Accused people, including alleged rapists, have the same rights to protection under the Constitution as complainants, an acting judge of the high court said in Pietermaritzburg on Friday when he and a fellow judge upheld an appeal by an Imbali man against his conviction and sentence for rape.

Acting Judge Colin Pammenter and Acting Judge Logeshwaran Pillay set aside the conviction of the 44-year-old schoolteacher after finding that the state’s case fell short of proving his guilt beyond a reasonable doubt.

But Judge Pillay said that if the conviction had been permitted to stand, the sentence imposed by Pietermaritzburg regional magistrate S. Mngomezulu was regarded by the appeal judges as “shockingly inappropriate” and lenient.

He said the accused was sentenced to five years’ imprisonment in terms of legislation that allows the sentence to be converted to correctional supervision after a short spell in custody.

Pillay said he found it surprising that the regional magistrate agreed with submissions that the man’s HIV-positive status was a mitigating factor in the case. “If he had sexual intercourse without a condom and knew that he was HIV positive, he was potentially condemning [the complainant] to a sentence of death.”

The man’s HIV status should therefore have been regarded as aggravating, calling for a far greater term of imprisonment than was imposed.

Earlier Judge Pillay — who did not deliver the main judgment in the matter — said he wished to express his views on certain issues, including the criticism in the media recently that created a perception that judicial officers have a tendency to be “overly hasty” to acquit rapists or treat them leniently.

“This criticism overlooks the fact that an accused is as much entitled to protection under the Constitution as the complainant,” he said.

Pillay said that even in cases of sexual offences against women and children, the test that has to be met by the state is one of proof beyond a reasonable doubt.

“In this case the state has not met that onus,” he concluded.

The alleged victim in the case was an 18-year-old woman. She alleged that she was raped in her bedroom by her employer the night she arrived to work at his residence, where she was also to live. She alleged that he placed his hand over her mouth and put a blanket over her head.

She did not report the rape until her return home two weeks later, after she feigned illness.

The appeal judges said the fact that she did not report the alleged rape when she consulted a nurse at a clinic a day afterwards was one of the features that placed a question mark over her evidence.

ingrido@witness.co.za

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