Judge overturns soldier's 15-year rape sentence

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 sex 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.