Teacher’s rape conviction overturned

2008-10-07 00:00

High Court judges of appeal in Pietermaritzburg yesterday set aside the first-ever sentence of life imprisonment, which a regional court magistrate had imposed in the capital in January.

The case was that in which a Swayimane schoolteacher, Phillip Shelembe (34) was found guilty of raping a 13-year-old pupil at his school on September 3, 2004.

Regional magistrate Rose Mogwera sentenced him to life imprisonment in terms of new legislation that granted regional magistrates the power to impose the ulimate sentence for such an offence.

Judges King Ndlovu and Piet Koen yesterday agreed with Mogwera’s credibility findings in favour of the complainant, and her rejection of Shelembe’s “bare denial” of the charge.

However, based on doubt created by the medical evidence, the judges found that in their view Shelembe could be convicted only of attempted rape.

Having changed the conviction to the lesser offence, the life sentence was no longer applicable.

Judge Ndlovu said that having regard to the seriousness of the case and the fact that Shelembe abused his position of trust and authority as an educator to sexually molest the girl, the court felt that a sentence higher than usual for attempted rape was called for.

They sentenced him to eight years in jail for his crime.

Judge Ndlovu said the court also had regard to the fact that before the offence Shelembe was a “useful person to society”, but that now his professional career would be “in tatters”.

According to the evidence before the trial court, Shelembe lived in a cottage on the school premises. On the morning in question, he asked a boy to call the complainant to his cottage. She testified that when she entered his room he pushed her onto the bed and raped her.

The trial court was told the girl was traumatised and crying after the incident, which she immediately reported to a fellow pupil and subsequently to teachers and to the police.

A district surgeon who examined her the same day found an external tear in the genital area was consistent with attempted rape. He recorded that the complainant told him that Shelembe “did not penetrate her deeply, and that when she cried out … he stopped”.

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