A Port Elizabeth man who was convicted of raping an eight-year-old girl and sentenced to 18 years in jail, left the court a free man last week.
This was after Grahamstown High Court judge Joss Jones set aside his conviction and sentence of 18 years.
A Port Elizabeth man who was convicted of raping an eight-year-old girl and sentenced to 18 years in jail, left the court a free man last week.
This was after Grahamstown High Court judge Joss Jones set aside his conviction and sentence of 18 years.
Mzukisi Dyira was convicted in the Port Elizabeth High Court for an alleged rape that took place in October 2005. He decided to appeal against his conviction based on the grounds that the trial court incorrectly accepted the girl’s evidence.
Dyira claimed that the evidence was inadmissible because the complaint about the rape was not made freely and voluntarily. The complaint was also not made at the first reasonable opportunity. It was only made on 8 February 2006, some 17 to 18 weeks after the alleged rape took place.
Furthermore, Dyira claimed that the evidence implicating him was insufficient as the state had relied on the single evidence of a child witness. Her evidence was also not corroborated.
Handing down judgment on Friday, Jones said: “In my opinion there is merit in these grounds.”
The judge pointed out that the complainant was the only witness who gave evidence implicating Dyira. There were, however, other witnesses for the state. A child of the same age with whom the complainant had been playing earlier that afternoon also testified. The complainant’s mother, the doctor who examined the girl and the police officer who investigated the case and to whom the child made a complaint of rape, also testified.
The gist of their evidence was that the girl was raped by Dyira after he called her into his house while she was playing outside her home with the other girl. The judge also considered the "single evidence of a child witness aged 8 years at the time of the rape whose evidence suffered from the blemish of a lengthy delay before reporting it".
"There was no evidence than that of the child implicating the accused – either corroboration, or satisfaction of the cautionary rules of evidence in a material respect, was called for, especially in the light of the delay in naming the appellant as the offender," said the judge. The court also considered how the cautionary rules should properly be applied.
After considering all circumstances, Jones found that “the state failed to discharge the onus of proving the guilt of the appellant beyond reasonable doubt. The appeal is allowed and the conviction and sentence are set aside,” he said.
