‘Rapist’ dad’s conviction dismissed as he walks away from life sentence

A father who was jailed for life for raping his biological daughter has won his appeal against his conviction and sentence and has been set free.

Bhisho high court judge Igna Stretch, who heard the appeal earlier this month, found the man not guilty and ordered his immediate release from prison where he had served just over four years.

“The Bhisho registrar is directed to facilitate the appellant’s immediate release from prison,” Stretch ordered after finding that the daughter’s testimony against her father had been “inconsistent” and “unreliable”.

The father was found guilty in the Zwelitsha regional court on October 18  2018 of five counts of rape committed between 2013 and 2016. He was sentenced to life on each of the first four counts and 15 years on count five.

The court found his accuser, who is his “natural daughter”, was 18 in 2013 and 23 at the time he was convicted.

The father appealed against the convictions, arguing the court had erred in finding the prosecution had proven his guilt beyond reasonable doubt; that his daughter was the single witness and her testimony was not honest and reliable and she had contradicted herself; the court had again erred in finding his daughter’s evidence had been properly corroborated by her sister; and the court had also erred in not drawing an adverse inference in the delay by his daughter and her sister in reporting the rapes.

Original case

The daughter, whose biological mother died when she was a baby, had testified she and her siblings were living with their father and stepmother from 2013 to 2016 when the incidents happened. She testified that in 2013, while her stepmother was working night shift, her father had woken her, undressed her and raped her. He had threatened to assault her when she cried.

She said this had happened on at least five occasions and she did not tell anyone as she was afraid.

She said on one occasion in 2014, when her father and stepmother had separated, he had called her to his bedroom to watch TV and had raped her. She said at the time her paternal aunt had asked her father if he was having sex with his daughter, and he denied this

After this, her father had promised that if she agreed to tell her aunt she was not being raped he would leave her alone. She trusted this and agreed to back his story.

But, she claimed, he began to abuse her again in 2015, raping her over weekends more than 10 times. At the end of the year he apologised and again said he would stop, and told her he “did not know what possessed him to do these things”.

In 2016 the daughter’s half-sister came to visit. The father invited both girls to sleep with him in his room. She said she was again raped by her father after her sister fell asleep. This happened more than five times more during that year.

She told the court in July 2016 she had argued with her father, but he did not assault her that month. However, she decided at that time to confirm to her paternal aunt that she was being raped by her father. She sent the claim to her aunt on SMS, prompting the woman to offer to fetch her. However, she failed to do so.

This led the daughter to tell her maternal aunt what was happening. That aunt, ”Agnes”,  called the police, who interviewed the daughter and had her medically examined. The daughter deposed two affidavits at the time.

The medico-legal report noted: “Allegedly sexually assaulted. No visible bruises. The assailant allegedly used a condom while sexually assaulting the victim. History of sexual assault. Condom used during the incident. Victim has washed and changed clothing since the incident.”

The half-sister testified she had visited the family and had slept with the daughter and her father in his bed. She claimed she would pretend to be asleep when the father raped his daughter and she could hear the daughter asking him to stop while he threatened to assault her.

Agnes produced a cellphone text message from the girl stating: “Mama come and rescue me. Father is sleeping with me forcefully, and tomorrow he is taking me by force to Grahamstown. Come urgently.”

She testified that only after the daughter was examined did she tell her her father had been raping her since 2013, and that her half-sister had witnessed some incidents.

During his trial the father denied raping his daughter and claimed he could never have had the opportunity to do so during the period in question, and particularly in 2015 when he had girlfriends around.

He claimed the story was concocted by Agnes and his estranged wife, who had coached his daughter and her half-sister to falsely implicate him.

The trial judge found the father had failed to explain why the coaching took place or how it could have happened. It was also found the daughter had accounted for each occasion, and while there were “discrepancies here and there”, they “did not distort the picture before the court”.

The judge was satisfied the daughter was telling the truth and remembered the events while accepting that although she had not kept a diary, she had also not misled the court.

The judge found the evidence given by Agnes to be material and realistic and “nothing fanciful or funny, as argued by the defence” and therefore the state had proven its case.

How the new judgment viewed the case

Stretch disagreed with this finding, stating the court’s criticism of the father’s failure to produce a motive for the alleged coaching of the girls amounted to “a serious misdirection and a compromise of the appellant’s fair trial rights to be presumed innocent, to remain silent and not to testify during the proceedings”.

She found the father had revealed there was bad blood between him and Agnes dating back to a custody battle over his daughter when she was three years old when Agnes had refused to forfeit primary care of the child.

He claimed the rape allegations were made by his daughter for the first time in 2016 during a fallout in which he had reprimanded her for having multiple boyfriends and not taking her epileptic medication properly.

Stretch also found too much weight was placed on the half-sister’s evidence as she had not been put through an inquiry of her understanding of truth and had not been administered the oath.

“The fact that (she) testified that she was 15 years old, which would have placed her in the category of an older child, is not in itself a test of her level of intelligence and knowledge. The fact that no inquiry was held at all, is, to my mind, a fatal misdirection which renders (her) evidence inadmissible.”

Further exploring the evidence, Stretch noted this decision rendered “the complainant a single witness on whether she was raped at all, and if so, by whom. The big question is, did this happen or did it not happen?”

Finding several discrepancies in the daughter’s evidence, the judge referred to the abolished cautionary rule used to encourage safeguards such as corroboration and reducing the risk of a wrong conviction. The rule applied in three instances: charges that were easy for woman to formulate but difficult for man to refute; a way of obtaining vengeance for any affront to a woman’s pride and dignity, and; when the danger that a frightened woman, especially if inclined to hysteria, might imagine certain things had happened to her which had not happened at all. These had prompted deep concerns relating to the consistency of the daughter’s statements and her lengthy delay in reporting the case.

“It was incumbent on the trial court, at the very least, to explore and evaluate the reasons why the complainant allegedly reported the rapes when she did, why there were inconsistencies in her own version about what she reported, why the first person she allegedly made this delayed report to (being her paternal aunt) was not called as a witness, and why her maternal aunt’s version of what was said to her does not gel with any of the versions proffered by the complainant.

“Is it proper or possible, with any measure of certainty, simply to explain away some 17 weeks of adamant refusal to give an account of what happened because of fear of reprisal, only to have that fear disappear for no apparent reason?”

She found the trial court’s failure to give consideration to the father’s version of events and how they could be “reasonably, possibly true in the circumstances, amounts to a further misdirection”.

“In all these circumstances, I am satisfied the trial court erred in concluding the prosecution had proved its case beyond a reasonable doubt.”

Stretch acquitted the father on all charges and set aside his conviction and sentence.

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