THE High Court has overturned the conviction and sentence of a soldier who was serving 15 years in jail for allegedly raping a sex worker and robbing her of $180 as well as her cellphone.
Nkosiyabo Prince Khumalo (28) from Gadadi Village in
Ntabazinduna was convicted of rape and robbery by Gwanda regional magistrate,
Mrs Sibonginkosi Mkandla. He was sentenced to 15 years in prison last year in
June.
Khumalo who is now entitled to liberty, had already served
seven months at Khami Maximum Prison.
Aggrieved by both conviction and sentence, Khumalo filed an
appeal at the Bulawayo High Court challenging Mrs Mkandla’s ruling.
Justice Christopher Dube-Banda ruled that the charges
against Khumalo were unsubstantiated as the magistrate failed to give rational
reasons for rejecting the version of the accused.
“It is abundantly clear from reading the judgment that the
trial court did not apply the legal principles upon evaluating the evidence
placed before it. It seems the trial court found that the State witnesses gave
reliable and credible evidence, and for that reason rejected the accused’s
version,” he said.
“It is unacceptable and I am not satisfied with that. I
perceive no rational basis for doing so.”
The judge said it was evident that the dispute between
Khumalo and the woman emanated from payment of services rendered by the
complainant.
Justice Dube-Banda said Khumalo’s guilt was not proved
beyond reasonable doubt hence his conviction is unsafe.
“As a commercial sex worker, the complainant has a right to
refuse to submit herself to sexual intercourse with anyone, and has a right to
seek redressal when forced. However, each case must be considered in the light
of its own particular circumstances,” said the judge.
“I therefore quash the conviction as well as the sentence
of 15 years imprisonment imposed by the trial court. The accused is entitled to
his immediate release and a warrant of liberation is hereby issued.”
Khumalo, in his application, argued that the complainant
fabricated her story following a misunderstanding over payment for services.
“The issue that caused the misunderstanding between
complainant and myself is money. Initially we had discussed that we were going
to go together for the whole night, but I later decided to do a short time,” he
said.
“I then gave her $30 for the service and she refused to
accept it, saying she wanted the initial $120 which we had agreed on for the
whole night. She threw the money in my face and punched me on the chest and I
fell down.”
Khumalo said the sexual intercourse they had with the
complainant was by consent. He said the woman reported the matter to the police
to fix him for refusing to give her the money she wanted.
According to court papers, it was stated that on November
5, 2019 at around 4AM the complainant who is a commercial sex worker was at 727
Nightclub in Filabusi when she met Khumalo who offered to pay her $120 for her
services and she agreed.
They left the nightclub and Khumalo led the complainant into
a bushy area near Filabusi Police Station saying that he didn’t want to be
seen.
While in the bushes, Khumalo is alleged to have grabbed the
complainant by her neck and pushed her to the ground. Khumalo withdrew a knife
from his pocket and threatened to stab her if she didn’t comply.
He allegedly demanded cash from the complainant who gave
him $180 and he also demanded the complainant’s cellphone.
Khumalo then allegedly raped her and after he was done, he
ordered the complainant to go with him. It was stated in court papers that
along the way the complainant fled and ran towards Filabusi Police Station
where she met a police officer and narrated what had happened leading to
Khumalo’s arrest. Chronicle
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