Dave Savides
2 minute read
7 Mar 2017
3:17 pm

Jailed rape accused found not guilty

Dave Savides

The rape complainant said she had childishly accused him.

Prison cell.

The Richards Bay Magistrates’ Court in KwaZulu-Natal has confirmed a high court decision to exonerate a man who spent three years in Qalakabusha Prison after being convicted of raping a minor, Zululand Observer reports.

James Tembe, 46, was sentenced in 2010 for the rape of a then 11-year-old girl, who had reported the incident to family members and the police.

However, the release of Tembe was ordered by the Pietermaritzburg High Court in July last after the complainant issued an affidavit stating she had lied in her initial accusation and he had not been the one who raped her.

She said she had “childishly” accused him; it was “a mistake” and she wanted to “give him his life back”.

However, the High Court said the case demanded further investigation and gathering of new evidence from the complainant, hence the case being again heard in the Richards Bay Regional Court last week.

Presiding Magistrate Carl Zaayman reviewed oral statements from witnesses and the girl’s family – who were divided over the guilt or innocence of the accused – and also honed in on the girl’s retraction affidavit.

He concluded the original handwritten affidavit had been influenced by an SMS that came via the prison, giving exact wording.

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Zaayman said the accused, while in prison, had continued communication with the complainant.

He also believed school fees had been paid over to influence her decision, but that she had been ‘influenced, not threatened’.

It was also ‘clear to the court’ that content of the affidavit had been ‘manipulated’ by the defendant’s legal team when it was typed.

The complainant’s statement had also been illegally signed by a Commissioner of Oaths at the prison, without the deponent being present. But while Mr Zaayman said the court was ‘not impressed’ by the actions of the accused in influencing the complainant – who nevertheless was now old enough to exercise the right choice – she had shown none of her statements could be trusted.

“The onus is on the State to prove guilt. Without the second statement, this would have been clear cut and we would have stuck with the original verdict.

“However, we must now find the accused not guilty as charged,” said Mr Zaayman.

In the light of tampering in the typed affidavit, the magistrate ordered that the defence’s legal team, including Derrick Mdluli, provincial spokesman for the Justice for Prisoners and Detainees Trust, be investigated as to whether they are competent to hold office.

He also called for a disciplinary inquiry into the Commissioner of Oaths signing at Qalakabusha.

– Caxton News Service

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