Durban - A 26-year-old KwaZulu-Natal man’s appeal against his conviction and sentence of life imprisonment for raping a minor has been dismissed.
Wanderboy Msho Nkwanyana, who was 21 at the time, along with others, had gang-raped a 15-year-old girl during a house robbery in April 2011.
The girl was raped four times by Nkwanyana and his co-perpetrators “in the sanctuary of her home and in the presence of her siblings, who were also subjected to the robberies”.
After being raped in her bedroom, she was pulled outside by the robbers, with the intention of taking her away with them, but she was saved when a neighbour appeared.
Nkwanyana was sentenced to life imprisonment for the rape and 30 years for two counts of robbery with aggravating circumstances.
The sentences are to run concurrently.
He appealed only the rape conviction and sentence.
During his trial in the Regional Court sitting at Esikhawini in Empangeni, he pleaded not guilty, did not testify in his defence, nor did he call any witnesses, and his attorney only cross-examined one of the State’s witnesses.
Nkwanyana also did not dispute any of the young rape survivor’s evidence when she testified.
Minor
However, at his appeal, heard before KwaZulu-Natal High Court Judges Yvonne Mbatha and Peter Olsen, his legal counsel argued that the young girl was still a minor at the time that she testified, but the magistrate did not conduct a competency test to determine whether or not she knew the difference between truth and lies, and if she understood the importance of an oath taken before one testifies.
Judge Mbatha said when the girl testified in February 2014, she said she was 19 years old, and was sworn in and furnished evidence without any objection being made.
“There is no merit in the challenge to her competence,” said the judge.
Nkwanyana then argued that the DNA results given by an expert witness were inconclusive, and should have been rejected by the court.
The judges said it was common cause that Nkwanyana had pleaded not guilty without disclosing the basis for his defence; and the defence did not cross-examine the rape victim and the other State witnesses, except for one.
At the end of the State’s case, the defence closed his case without giving evidence or calling any witnesses.
He also did not challenge the evidence given by the DNA expert.
“A person who has the opportunity to cross-examine a witness, and does not do so, is taken to have elected not to dispute the evidence of the witness,” the judgment read.
The girl could not identify her assailants, nor could her brother.
There was no other evidence before the court except the DNA evidence that linked Nkwanyana to the crimes.
Judge Mbatha found Nkwanyana did not explain why his DNA was found in the swab taken from the girl when he had an opportunity to do so.
As a result, both judges found that the State had proved its case beyond a reasonable doubt.
On the sentencing, they said the courts should not only look at physical injuries, and should not ignore the “profound psychological trauma, loss of dignity and emotional scars suffered by the victims of rape”.
Traumatised
“The victim was traumatised to such an extent that even at trial stage the learned magistrate observed she was shivering. Upon enquiry, the magistrate learnt that she was scared,” said Judge Mbatha.
“The courts, in imposing the prescribed minimum sentences, must consider, even in the absence of substantial and compelling circumstances, if the sentence is proportionate to the crime. It is our view that in this matter the sentence of life imprisonment is proportionate to the crime committed,” she said.