South Africa: Kimberley University Student Wins Appeal Against Sexual Assault Conviction

13 November 2019

A student at Sol Plaatje University, who was sentenced for sexually assaulting a fellow student during a night of festivities on campus, has successfully appealed his conviction.

The Galeshwe Regional Court had sentenced him to four years in jail, wholly suspended for five years, with conditions.

He appealed to the Northern Cape High Court in Kimberley, arguing that the trial court had made a mistake in accepting the evidence of the complainant as a single witness, and not finding that his version could be reasonably and possibly true.

According to court papers, students had gathered in the quad on campus to wait for the results of the Student Representative Council (SRC) election earlier in the day.

The mood was festive and students had listened to music and drank alcohol.

The appellant, who lived off-campus, had been given her room keys to leave his speaker there. He also charged his cellphone when he got to the room.

He received her keys later that night to retrieve his phone and then returned them.

After the election results were announced, the complainant felt tipsy and left for her room, with the appellant following her.

He eventually entered the unlocked room and lay next to her on the bed. She left the room and returned after some time, then asking him to leave.

When he got out of bed, one of her friends knocked on the door. The complainant opened and then ran out of the room crying.

On her version, she said she had not expected him to follow her into the room as she had been under the impression that he had been previously banned from the residence.

She testified that she was fully clothed when she fell asleep and, when she woke, she felt someone putting his arms across her waist.

The appellant allegedly told her he wanted to cuddle, and she refused, noticing he had an erection and that he was naked, with his clothes on the floor.

Her testimony was that he then dry-humped her and refused to stop. She texted her boyfriend that someone was in her room and asked him to contact her sister or a friend.

The appellant's version was that the complainant had suggested he take her room key and leave the speaker in her room for safekeeping.

He said he had asked if he could sleep over at her place because he lived a few kilometres away, and that she had agreed, but said he would need to wake up very early to go to his place.

He said he signed the security register shortly after her, saw her lying in bed when he entered the room, took off his shoes and laid on his stomach on the bed before falling asleep.

When he woke up, he said the complainant left the room and, when she eventually returned, asked him to leave, which he had no problem doing.

As he was about to leave and put on his shoes, he heard a knock on the door. He said the complainant told him to keep quiet. She then ran out of the room when her friend entered.

He denied threatening or sexually assaulting her.

His lawyer said there were many inconsistencies and improbabilities. These included that the complainant did not want his client following her to the room when his speaker was still in there; that she could have thought he was banned when he had successfully been to her room twice without problems earlier in the night; and that she was able to send multiple messages to people while allegedly being sexually assaulted.

High Court judge Cecile Williams found contradictions and improbabilities in the evidence of the complainant.

"Her evidence on its own could therefore not have been found to be substantially satisfactory or reliable," she said.

The trial court failed to explain how state witnesses corroborated each other and did not have regard for the glaring inconsistencies in the different versions, she said.

"... the appellant's version in the circumstances of the events of that evening and specifically the fact that the witnesses, with the possible exception of (witness) M, had all partaken in alcoholic beverages cannot in my view be rejected as not being reasonably possibly true," her judgment read.

She upheld the appeal and set aside the conviction and sentence.

Acting Northern Cape High Court judge Livhuwani Vuma concurred.

Source: News24

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