Johannesburg -
A Ventersdorp man was given an early Christmas present by the high court sitting in Pretoria when a judge overturned his rape conviction and subsequent 10-year jail sentence because the alleged victim was so drunk that it isn’t clear what happened.
Acting Judge NF de Jager said it was not that he necessarily believed the version of Kabelo Ndlovu that he did not rape the alleged victim. But, weighing this up against the quality of the evidence presented by the State, the court could not find that Ndlovu’s version was entirely untrue.
Ndlovu said he had simply lain on top of the victim and had not penetrated her. But the alleged victim (who cannot be identified) said her husband and children had witnessed the events from outside through a window.
But the judge said that according to evidence, the woman had been so drunk, she could have slept through the entire incident.
Ndlovu was sentenced in Ventersdorp in November 2007 and had thus already spent more than half his sentence before the court vindicated him recently.
Judge De Jager remarked in his judgment that rape was by no means a petty crime, as it could have devastating consequences for a victim. But if convicted, this could also be devastating for an accused, he said.
“I am perturbed by the desultory manner in which the proceedings in the court a quo (where he was tried) were conducted.”
The judge said the evidence was scant, inconsistencies were not cleared up and the witnesses who were called were ill-prepared.
The alleged victim testified that she met the accused on the day of the incident. She claimed she was drunk at home and went to sleep, but she did not lock the door. When she woke up later, Ndlovu was lying on top of her and having sex with her. She claimed he removed her underwear while she was sleeping.
She said she screamed until her husband and children, who were elsewhere, arrived. As the house was locked, allegedly by the accused, they could not enter and watched through the window.
The woman said the accused eventually got off her and unlocked the door. Her husband entered and slapped the man, who ran away. He was brought back to the house by neighbours.
The victim’s 12-year-old daughter testified that she and her siblings went to a neighbour when her mother went to bed drunk. Her father went to a friend. When they got home they were locked out and they saw Ndlovu having sex with their mother through the window.
She said her mother was “fast asleep” while the man was having sex with her. The child said she and her siblings shouted to wake her, asking her whether she was not aware of what was happening. The mother said nothing and didn’t scream, as she claimed. The accused simply denied that he raped the woman.
The judge said the woman was a poor witness. “Not surprisingly, as she was almost in a vegetative state as a result of her intoxication… I have reasonable doubt that the complainant was ever awake during the presence of the accused or whether she could observe what was going on around her.”
The judge concluded that none of Ndlovu’s DNA was present inside the woman and he thus gave him the benefit of the doubt that he never penetrated her.
- The Star