Estimated reading time: 4 minutes
Two KwaZulu-Natal judges have successfully overturned the conviction and 15-year prison sentence of a young man accused of raping an 11-year-old girl numerous times due to shockingly poor legal proceedings.
Judges Rishi Seegobin and Rashid Vahed claimed it was astounding that the case took seven years and 46 court appearances from the time of Sihle Kunene’s arrest to his conviction, where the matter should have taken a matter of weeks to finalise.
In fact, it was stated, “The failure in this regard must be placed squarely at the doors of the learned magistrate and the prosecution. The result of course was the severe prejudice caused not only to the appellant but to the young complainant as well.”
In 2013, at the time of his arrest, Kunene was 18 years old, making his first appearance in the Vryheid Regional Court shortly thereafter.
He was charged for raping an 11-year-old on multiple occasions in 2012 when he was 17. He was then convicted in January 2019 of two counts of rape and sentenced to an effective 15 years. The appeal was heard on 30 April 2021, where the judges issued an order setting aside Kunene’s conviction and sentence, thereby allowing for his immediate release.
When issuing his release order, the court indicated that the reasons would be released in due course, subsequently handed down this month.
In a detailed history of the case, the judges stipulate several reasons that played a role in releasing the man. From the appellant’s first appearance in court, the judges noted his matter appeared in court on at least 46 occasions. Only eight of these were occupied with actual trial proceedings (one of the eight being a repetition).
“The Constitution provides that every accused person has a right to a fair trial, which includes the right to have their trial begin and conclude without unreasonable delay.”
They further explained that the detailed history shows the delays in the matter were occasioned by what might rightly be termed, systemic delays. Those periods were lost mainly because of the non-availability of the presiding magistrate and/or the absence of the witnesses.
It was also pointed out, “On the occasions on which the appellant himself was absent, it was because arrangements had already been made for the trial to be adjourned due to the reasons mentioned above. On every other occasion the appellant was present only to be informed that the matter could not proceed. The prejudice to the appellant in these circumstances is self-evident.”
However, they found that the most concerning feature of the delays herein is that a period of two years and eight months had elapsed from the time of the appellant’s arrest and first appearance until the trial commenced on 5 May 2015. After that, a period of two and a half years passed from the time that the young complainant commenced her evidence until the matter resumed on 18 July 2017.
Adding to this, during the proceedings, the prosecutor decided the complainant should give her evidence afresh. The consequence of this was that the complainant’s evidence was now at variance with what she had testified to on the first occasion. Bearing in mind that the charges were of a sexual nature, involving both a young girl as well as a young offender, the judges stipulated there was a general duty, not only on the court but also on the prosecution, to ensure that the trial commenced and ended within the shortest time possible.
The two judges noted that this was not a complex matter that required a wealth of evidence to be led by all accounts. Ultimately only four witnesses were called by the State, and it was only the appellant who testified in his defence.
Moreover, given the fact that rape and other sexual offences have become endemic in South Africa, the judges explain there can be no confidence in a justice system that makes a mockery of the rights, not only of accused persons such as the appellant herein but also of victims of crime. “The conduct of the learned magistrate and the prosecutor/s involved requires censure of the strongest kind.”
What are your thoughts on the matter? Share your views in the comment section below.
RELATED NEWS
