Three alleged rapists have had their conviction overturned due to a technicality in the case
Image: File
The death of a 14-year-old rape victim, who was subjected to extensive cross-examination by the defence lawyers of her three alleged rapists, has led to their release due to a court ruling that cited a technicality in the case.
Two of the men had their life imprisonment sentences overturned, while the third, who was a minor at the time, also had his 15-year jail sentence overturned.
The Bloemfontein High Court found on appeal that the three are entitled to their freedom as it is their Constitutional right to fully cross-examine their alleged victim. She, however, died before this could be concluded and thus their trial was rendered unfair.
The teenage complainant testified during a protracted trial which was endlessly postponed for numerous reasons from September 2018. Her evidence-in-chief only started two years later. She was then cross-examined by the legal representative of two of the accused.
This was not finalised, but continued over several days. After their lawyers concluded their cross-examining, the matter was once again postponed for several months for the lawyer of the third accused to start his grilling of the victim.
On this day, during cross-examination, the complainant appeared to be uncomfortable. At one stage she simply returned her microphone to the intermediary and left the room from where she was testifying.
No explanation for this conduct was obtained by the court, however, the prosecutor and the legal representatives for the accused speculated on the reasons for her conduct. The matter was then again postponed for further cross-examination.
The complainant meanwhile took her own life before this could happen.
The complainant’s evidence-in-chief was that after she had closed the gate of the premises where she was staying with her grandmother that night, one of the accused grabbed her by the hand and forcefully took her to his cousin’s house.
He and his two co-accused, who later arrived at the house, were well known to her as they all went to school together. They then, according to her, gang raped her. She managed to escape and went home, but she did not tell her grandmother what happened, as she was afraid her attackers would kill her. She, however, later told her grandmother about her ordeal.
Judge Johannes Daffue, who on appeal ruled in favour of the accused, remarked that in criminal matters cross-examination is particularly applicable to establish the truth. The complainant was already confused during the cross-examination by the lawyers of two of the accused.
The judge said as the cross-examination was not completed by the time the teenager had died, the court shall not speculate as to what might have happened. The dictates of fairness point in one direction only and that is that the evidence of the complainant should have been ignored in total, the judge said.
"A prosecutor must act with objectivity and must purposefully take all reasonable steps to ensure maximum compliance with constitutional obligations, even under difficult circumstances. Prosecutors, as officers of the court, should be guardians of human rights and must be sensitive to the Constitution and the rule of law. A prosecutor has an obligation to ensure that an accused’s right to a fair trial is protected,” the judge said.
Cape Argus
Related Topics: