A man who has spent four years in Kranskop Prison for the rape of a relative could have his conviction overturned as the complainant has said she lied about her story.
Zwelakhe Abedingo Luthuli was arrested and sentenced to 10 years for the rape in 2000. Even though an affidavit by the victim, saying she lied, surfaced in 2002, he continued to be imprisoned because of red tape.
However, on Monday he was released on bail of R50 by the Durban High Court after the South African Prisoners' Organisation for Human Rights brought an application on behalf of him for leave to appeal.
The application was unopposed and Judges Ron Maclaren and Achmat Jappie granted Luthuli leave to appeal against his conviction and sentence.
They also gave him leave to apply to the Supreme Court of Appeal for an order that the case be remitted to the trial court.
Luthuli will also be allowed to introduce new evidence. In an affidavit Luthuli said that in December 2002, he learnt that the complainant had admitted that she had lied about the rape and that she had made an affidavit.
He sent a letter to the minister of justice and in April last year was told that the matter had been forwarded to the director of public prosecutions in Bloemfontein. "I was told that he would be in a position to advise me. I never heard anything further from him," he said.
Luthuli said after several failed attempts he eventually received help from the South African Prisoners' Organisation for Human Rights.
"The matter has been delayed for a considerable period of time but throughout that time I have tried as best as I have been able with my limited knowledge and inexperience in these fields to secure some form of legal assistance and relief," said Luthuli.
He said the magistrate in his trial misdirected herself and deprived him of a fair trial.
In her affidavit the complainant said she lived with her mother and siblings at the time of the rape. She said other people who were not related to her also lived in the house.
"Towards the end of 1996, when I was 12 years old, one of the persons who lived in one of the other rooms in the house was a man known to me by the name of Mududuzi. He was 21 years old. We were attracted to each other and became intimate and we frequently had sexual relations in his room when nobody was home," she said.
When in early 1997 the girl's mother questioned her about about having a boyfriend she denied it, as she was afraid of her mother, who had often beaten her, she said. Her mother then arranged for her aunt to do a virginity test.
She said she had not been forced to have sex with Mududuzi and was afraid that her mother would throw her out if she found out.
The complainant said she was taken to another aunt who suggested that Luthuli might have been involved. Scared of her mother, the complainant said she went along with the suggestion.
She said she had never had sex with Luthuli and in 2002 told her uncle that she had falsely implicated him. She then made a statement at the police station. She said police tried to contact Mududuzi, but discovered that he had died.
"I have been advised that I can be charged for perjury and this offence could warrant a term of imprisonment for me. I have decided that I have to do all in my power to reverse the injustice that I caused in this matter.
I apologise to this court for what I have done... I have caused injustice to the applicant (Luthuli) and considerable inconvenience to him. At the time I lodged the complaint I was only 13 years old.
I did not know that the applicant was going to be imprisoned. I also did not know that he would be sentenced for a lengthy period of time," she said.