Africa-Press – South-Africa. A Northern Cape man who was sentenced to life in prison for raping a 15-year-old girl has been released from prison after successfully appealing his conviction.
Sipho Mkhize was arrested after being accused of raping the girl in April 2019. He was convicted in the Northern Cape Regional Court on one count of rape and sentenced to life in prison.
Mkhize appealed his conviction and sentencing and, in a recent judgment by the Northern Cape High Court in Kimberley, Judge President Pule Tlaletsi found that the State had not proved its case beyond a reasonable doubt.
According to the judgment, the girl had met a man who had offered to give her a soft drink if she accompanied him to his shack.
When she refused, the man allegedly pulled her into a nearby shack. He then apparently gave the girl R100 before the rape, and R5 when she left.
He had apparently first smoked drugs, before pushing her onto the bed, and then raping her.
The judgment further states that the girl screamed in pain, whereupon the man stopped.
The girl left the shack and went to a nearby toilet, and along the way, a 10-year-old girl who had been playing outside the shack asked her what was going on.
But the 15-year-old did not say what had happened.
The girl told the court that she did not immediately report the incident because the man had promised to kill her if she told anyone.
However, a day after the alleged incident, her sister confronted her about what had happened, and the girl said she had been raped.
However, Mkhize denied raping the girl.
He said he worked for his aunt, who owns a taxi business, and on the day in question, he started work at 08:00 and knocked off at 20:00.
He also said he was never at a shack in Riemvasmaak, adding the State witnesses could be mistaking him for someone else.
A witness testified that she was playing outside when she heard the girl “screaming loudly”.
She also told the court that the man inside the shack did not leave in a rush.
According to the judgment:
The court also heard testimony from the sister, who said the 15-year-old was born with Down syndrome.
“She takes medicine for epilepsy and her mental condition. She is someone who forgets and cannot read or write. She is attending a special school. They are not staying in the same house. She was, however, seeing her almost every day because she had to fetch her child from her parental home when she returned from work.”
Judge slams police investigation
The judge added that the way in which the sister had obtained information from the 15-year-old about the incident had raised some questions.
“She confronted the complainant with information and leading questions as to what allegedly happened the previous day at Sipho’s shanty. It is then that the complainant mentioned that she did not know the name of the person, but he asked her to [lie] on the bed. She refused, and he undressed her and inserted his penis in her vagina.”
Tlaletsi said had it not been for the sister, there would not have been a charge of rape or the prosecution of Mkhize.
“The evidence and conduct of the complainant can only point to the fact that she was an unwilling complainant. She appeared to have decided to conceal the incident indefinitely,” the judge said.
Tlaletsi said it was unfortunate that the police did not do much to investigate the case.
“The evidence suggests that [Mkhize] was taken by a vigilante group and presented to the police as the perpetrator. One would have expected the police to have conducted a thorough investigation of the scene. This would have included requesting the complainant and [the State witness], or taking them to the shanty in question to make some pointing out and observations of the scene. It is still unclear what the shanty looked like and what exactly was inside. Even a picture of the shanty was not presented as evidence.”
Tlaletsi said Mkhize was not charged for sexual penetration of a child below the age of 12.
Neither was he charged for an act of sexual penetration with a person with a disability, he said.
Mkhize was charged with an ordinary charge of sexual penetration without consent.
“…in my view, the State had not succeeded in proving beyond a reasonable doubt.
“In the result, the appeal must succeed, and the conviction of the appellant must be set aside. With this conclusion, the appeal against sentence ought not to be considered.”
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