Gavel and Themis statue in the court library.
The North West High Court has ordered that a man be released from custody after the Potchefstroom Regional Court sentenced him to 10 years in prison for rape, kidnapping and intimidation.
The charges against the man, referred to as PS, were brought against him by his wife. They were separated at the time.
Wife’s accusations of rape and kidnapping
She claimed she had invited her husband to a traditional feast at her parents’ home. While there, he was asked to drive some of the guests back to their homes. In some of the later trips, the wife joined him in the car.
While they were alone in the car, the man tried to talk to his wife about fixing their marriage. She claimed, when she told him she had moved on with her life, he approached a dam and threatened to drive into the water.
She then got out of the car and started walking away.
The wife then claimed he ordered her to get back in the car so they could drive to his parents’ house in Ventersdorp and discuss their marriage. As they arrived at a house, she got out of the car and started walking away again.
She said he then picked her up and put her back in the car. He then drove to a gravel road where he tore a cloth into pieces, which he used to tie her hands and feet and gag her. According to her, he then set another piece of cloth alight and threatened to set the grass around the car on fire.
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He then drove her to his house. When they arrived, she said he untied her and threatened to stab her with a knife if she screamed. He then put her on his bed and tied her hands and feet again.
She said he then untied her and had sexual intercourse with her. After about 15 to 20 minutes, he had sexual intercourse again. Afterwards, he tied her up and gagged her. They then spent the night at his house.
During this time, her brother called her twice. She said her husband instructed her to tell her brother she was in Promosa and Ikageng.
In the morning, she said her husband left her tied to the bed as he collected a minibus that was used to collect school children. He then told her to get in the vehicle and drove her to her parents’ house.
When she told her mother what had happened, they went to the police station and got a medical examination.
“No visible injuries were noted, and no gynaecological abnormalities were found,” said the judgment.
Mistakes in previous court ruling
Judge Ronald Deon Hendricks said the previous court ruling had relied on the evidence of a single witness and had not assessed the credibility of the wife’s complaint with enough caution.
The judge said the onus is on the state to prove the man guilty beyond a reasonable doubt.
“His version only needs to be reasonably possibly true to be given the benefit of the doubt and to be acquitted,” said Judge Hendricks.
He said the previous ruling of the magistrate also mentioned that the wife had no motive to falsely implicate her husband as she admitted they had engaged in sexual intercourse.
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Judge Hendricks also referred to the husband’s sister saying she had seen messages from the complainant admitting she “was going to lay a false rape charge against the accused”.
The judge said this “should have cast serious doubt on her honesty as a witness”.
Judge Hendricks also questioned the testimony of the wife’s mother after she said she saw blood on the underwear of her daughter.
“The examination by the nurse also did not reveal any blood on the underwear of the complainant save for a whitish vaginal discharge.”
The magistrate said in her previous court ruling that this contradiction did not make the mother a dishonest witness and said it was a “mistake on her part”.
“The evidence of the first report on such an important issue, which is not borne out by the evidence of the complainant and medical evidence, similarly raises a red flag. It could not simply be regarded as a mistake,” said Judge Hendricks.
Wife’s claims ‘improbable’
The judge also cast doubt on the wife’s claim that she had been repeatedly bound and gagged.
“The medical report (J88) further does not provide credence to the evidence of the complainant that she was bound by her feet and hands as no physical injuries, which one would have expected should have been visible, were noted on examination.”
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The judge further questioned why the wife did not scream or run away when she had opportunities to do so.
“She failed to scream for help even at the appellants’ residence, while she knew that the appellant was not residing alone at that premises,” the judgment reads.
“On her own version, when she alighted from the motor vehicle, she walked down the road. Similarly, when they arrived at his residence, he walked in front of her and opened the door. If she wanted to escape, she had ample opportunity to do so, yet she did not.”
The judge then said it was “improbable” that the wife would have invited her husband to the traditional feast and help transport guests if their relationship was over.
“This, whilst they were separated and living apart, with their marriage having irretrievably broken down. This is improbable.”
Similarly, the judge said the husband would not have taken such “violent and inhumane” measures if he wanted to fix their marriage.
“This goes against the grain of someone who wants to salvage a marriage which has broken down irretrievably. It is highly improbable.”
Judge Hendricks then ordered the man’s conviction and sentence to be set aside.
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