He can still remember the day he walked down a steep flight of stairs. The further down he got, the darker it became. He had just been convicted and sentenced for a crime he knew he did not commit and was on his way to the jail that was supposed to be his home for the next eight years.
Up until that moment, he’d been sure that justice would prevail, and he would be exonerated. But Osiphesona Ngcanga (27) spent two years behind bars before his sentence was overturned on appeal last month. He was an LLB graduate, studying towards a master’s degree in maritime law at the Nelson Mandela University when he was arrested for rape. He was accused of raping another student at a party in February 2017.
He insisted the sex was consensual, she said she did not remember what happened. Five months later, he was convicted and sentenced to eight years for the crime by the Port Elizabeth regional court.
SHATTERED DREAMS: Osiphesona saw his life flash before his eyes and his dreams deferred when he was sentenced. In that moment of hopelessness though, the spirit of God came over him and he cried out loud and prayed. He then began to remember the biblical story of Joseph who was accused of raping his boss’ wife but later became the prime minister.
“I prayed, it was weird because my life was seemingly destroyed and yet I had an overwhelming feeling of peace. “I knew there was a purpose for what had happened to me and I thanked God for the opportunity to go preach His Word at St Albans Correctional Centre,” he says. Not long after his prayer, Osiphesona was transferred to another holding cell, this time with two other guys who had also been sentenced that day. They told him they were convicted for murder.
“There were two guys in the cell, one was a black guy and the other was a coloured guy. The coloured guy walked up to me and said, ‘Hosh!’ and started searching me. I had R50 on me and he took it. I knew then that is was going to be a tough eight years trying to survive prison.
“Later that day we were then all transported to the prison and on that drive, I started telling them about Paul and all the biblical people that had been imprisoned.”
FREEDOM LOST: He never imagined he would be convicted, he tells Move!
“During my trial I had not thought of the possibility of going to prison and so I did not even think what it would be like.
“I relied on the fact that I knew that I had not raped her and being a law graduate, I knew the facts could not lead to a conviction because the story did not make sense or add up.” But magistrate Nolitha Bara didn’t think so and sentenced him to eight years behind bars.
“Prison was not easy at all, but it was by the grace of God that the other inmates found out that I was a lawyer and they came to me for legal advice. “Everything you have heard about gangs in prison is true, it is hectic in there, but I was covered by the blood of Jesus.
“The gangs have their rules that they abide by and I was fortunate in that most of the people that approached me for legal advice were affiliated to the 26 gang and they do not allow sodomy. It is the 28 gang that rape. “I was protected by the 26 gang members in exchange for the legal advice I offered them.” He doesn’t want to go into much detail about his two years behind bars because he is penning a book that promises to be a riveting read, which will include stories of bloodshed and an attempted rape.
THE FATEFUL NIGHT: Osiphesona remembers going to a 21st birthday party with a friend. While at the party he noticed a girl on the other side of the room and he thought she was beautiful, but he did not approach her. “I am quite the dancer, so I hit the dance floor with the other people at the party. Most of us were drinking alcohol. I felt a bit light-headed and decided to sit down. “The girl I saw earlier came up to me and complimented me about my dancing. That gave me an opportunity to chat with her. “We clicked. We were having a nice chat and were getting to know each other. We started kissing. “While we were kissing, a friend of hers pulled her away and left with her. But she came back, and it happened again.
“Then later she and I went to my friend’s car for a bit more privacy. We got into the backseat where we kissed and started having unprotected sex.” She saw someone approaching the car and told him to stop. “And I did. It turns out it was that friend of hers, back again, and she came with other people trying to open the car doors. She told people that I was raping her friend.
“We all went back inside the house and all the friends were questioning her on whether she had been raped or not, but she just sat there quietly.
“My friend and I left. The following day I heard that she and her friends had gone to open a case of rape against me,” he says. Osiphesona then went to the police station and he was arrested and charged the following day.He does not deny having sex with the woman he had just met hours before, but he insists that the sex was consensual.
THE EVIDENCE: The court heard that even though the young lady was on her period that day, the nurse at Dora Nginza Hospital in Port Elizabeth was able to do a vaginal examination. After hearing the appeal, judges Sunil Rugunanan and Buyiswa Majiki said the magistrate who convicted and sentenced Osiphesona misdirected themselves in the application of the law.
“The magistrate’s approach constituted a misdirection which resulted in a conviction founded on the incorrect premise that the consent contended for by the appellant was automatically vitiated by the complainant’s mere consumption of alcohol which rendered her in a state of unconsciousness.
“The magistrate’s overall approach to her evaluation of the evidence, and particularly the credibility findings in favour the state witnesses clearly overlooked the material shortcomings and discrepancies in their evidence and where it fell short of the onus,” the judgement reads in part.
Osiphesona was represented by a Legal Aid attorney during his trail.He approached one of his former lecturers who then helped with his appeal in the Grahamstown high court. He spent almost two years incarcerated before the conviction and sentence were set aside.
He walked out of prison in January and has been savouring his freedom since then.He loves spending time with his family in Mdantsane, he says, which he previously took for granted. He’s still not sure about what he’s going to do next, he says, but since he’s out of jail, the future looks brighter.