SCA overturns stepfather’s rape conviction

Almost seven years after he was thrown in jail for raping his stepdaughter, a Free State truck driver has been exonerated and set free.

The Supreme Court of Appeal (SCA) last month set aside the man’s conviction along with the life sentence that came with it. The majority judgment, penned by Judge Yvonne Mbatha, pointed to evidence which suggested the girl – then 12-years-old – had made up the allegations after her stepfather had given her a hiding for stealing a chocolate bar from the local Spar.

“Although the complainant said she was not angry at her stepfather for the beating she received after the theft of the chocolate, her evidence … demonstrates that she was deeply aggrieved. She had reason to implicate him,” the judge said.

“The foster mother – who was called by the state in aggravation of sentence and who had lived with her for a few years – testified that she had told her that she had accused the applicant to get her own back at him,” the judge said.

The girl had first reported she was being abused to a friend whose mother had then alerted authorities, but Mbatha labelled the “ill-will” between the girl’s family and that of her friend’s – “a disturbing feature”.

“According to the applicant, he and his wife had contacted a social worker after [their daughter’s friend] and her sibling had come to complain that they had been beaten by their mother. When [their mother] found out about this, she swore and abused them and said that she would get back at them. He described in graphic terms the animosity between [their daughter’s friend’s] family and him,” the judge said.

Mbatha described the girl’s evidence at trial as “unsatisfactory,” highlighting a number of contradictions and inconsistencies and tearing into the state for leading her on the stand.

“It is important that I emphasise the displeasure of this court concerning the manner in which the prosecution led the evidence of the complainant,” Mbatha said.

She said it was important that child witnesses, in particular, “be allowed to state their version before clarification is sought by the prosecutor.”

“The prosecutor should not interrupt the flow of the witness’ testimony nor pose leading questions to the witness. Not only does this affect the testimony of the witness but may have an adverse impact on the accused who is entitled to a fair trial in terms of the constitution.”

In a minority judgment, Judge Mahube Molemela said she would have dismissed the man’s appeal. She conceded that “the prosecutor adduced the evidence of the complainant in a haphazard fashion, constantly interrupting her and directing her to other scenes before exhausting the questioning in relation to a particular aspect”.

But, Molemela said: “While this was indeed a poor reflection on her prosecutorial skills, we need to be careful not to, in the process of determining whether the requisite standard of proof has been met, throw the proverbial baby of credible evidence out with the bathwater.”

The spokesperson for the National Prosecuting Authority in the Free State, Phaladi Shuping, said on Monday that his offices were still considering whether or not to appeal the SCA’s judgment.

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