An Eastern Cape man who was previously convicted for rape and sentenced to eight years behind bars has found justice on his side after the Eastern Cape High Court in Makhanda upheld an appeal and set aside both his conviction and sentence.
Osiphesona Ngcanga, 24 at the time of his conviction, spent two years in jail at St Albans Prison in Port Elizabeth. His future as a law student and an assistant lecturer at Nelson Mandela University (NMU) was brought to an abrupt end after he started serving his jail time.
Ngcanga, who is now a free man and back home in Mdantsane, was found guilty by the Port Elizabeth Regional Court for the rape of a drunk and unconscious 21-year-old commerce student at a birthday party in February 2017.
In a judgment handed down last month, Makhanda High Court judges Sunil Rugunanan and Buyiswa Majiki said that a telling aspect of witness evidence was inconsistency between the testimonies of the complainant’s friends, and what they had overheard that night.
A total of six witnesses testified at the trial and the pair were seen dancing together, laughing, flirting and kissing at a party attended by 17 people.
Overall, the high court found witnesses to be unreliable, inconsistent, lucid and contradictory.
According to court papers, in earlier testimony the complainant said that she had no recollection of consenting to sexual intercourse with Ngcanga in a motor vehicle outside the party. She also said that the quantity of alcohol she consumed on the night was not excessive.
For her part, the complainant testified that she never knew Ngcanga and had met him for the first time at the party. She recalled how they kissed and drank together. She told the court that at some point he fetched her a drink and from then onwards, she had no recollection of what happened during the night. She claimed she would have never consented to sexual intercourse on the basis that he was unknown to her.
The woman said that she had taken a liking to the law student, in spite of her friend’s disapproval.
According to her friend’s testimony, she believed Ngcanga to have had simultaneous relationships with several other women in her friendship circle, including herself.
She vehemently disapproved and kept calling the woman back into the house.
While the woman’s friend testified that he had seen the law student mixing a drink for the complainant, and she had overheard the complainant say that the drink was too strong, the court pointed to the witness not providing any evidence that the drink was spiked.
When the couple later disappeared from the house, two friends went looking for the complainant outside. One friend heard “something that seemed liked screams” followed by “stop, stop, stop”. While the other friend heard muffled sounds and the words “stop, leave me alone”.
The court, however, found that the woman’s inability to recall gave a sense that she had played the role of a victim, while her companion had attempted to fill a void by giving testimony on matters they purported to have seen or heard.
“In these circumstances, their apparent concern that the complainant would do something she would not remember the next day emerges as a cover-up for the complainant’s lapse in memory of events that occurred in the motor vehicle.”
According to witnesses, the woman was seen wandering off in the company of Ngcanga, but according to the judges, she was also found to have repeatedly returned to Ngcanga of her own accord.
The court also found that it was not far-fetched to conclude that the eagerness of the parties to have sexual intercourse in a confined space like a motor vehicle, could provide the likely explanation for the woman sustaining vaginal injuries.
It was found that Ngcanga was also not a particularly impressive witness.
“Despite his age and level of education, his vacuous appreciation of the risks associated with unprotected sex is stupefying.”
However, the high court leaned in favour of his version, as reasonably possibly true, that the complainant either verbally or by virtue of her conduct throughout the night, consented to sexual intercourse.
Quoting case law, State vs Singh (applied with approval in State vs Zuma), it was held that it was impermissible for a court to approach a case on the basis that, because it was satisfied with the credibility and reliability of the state witnesses, therefore the evidence given by the accused and the defence witnesses must be rejected.
The high court found that the magistrate’s overall approach to the evaluation of evidence, and particularly the credibility findings in favour of the state witnesses, overlooked the shortcomings and discrepancies in their evidence.
“In my view, the magistrate’s approach constituted a misdirection which resulted in a conviction founded on the incorrect premise that the consent contended for by the appellant was automatically vitiated by the complainant’s mere consumption of alcohol which rendered her in a state of unconsciousness.”