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Varsity student wins appeal

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“The state failed to prove the offence beyond a reasonable doubt and the appeal should succeed”

A SOL Plaatje University student, who was found guilty of sexual assault on a female student, has had his conviction set aside after he appealed to the Northern Cape High Court.

The student, Pako Kgosiencho, was convicted in the Galeshewe Regional Court of sexual assault and was sentenced to four years’ imprisonment, wholly suspended for a period of five years on certain conditions.

Kgosiencho (the appellant) appealed the conviction on the grounds that the court had erred in accepting evidence of the complainant, who was a single witness, and not finding the version of the appellant to be reasonably possibly true.

Outlining the case as presented in court, Northern Cape High Court Acting Deputy Judge President Cecile Williams pointed out that both the complainant and the appellant were students at the Sol Plaatje University and knew each other. On the night of the alleged incident, the students were congregating in groups in the quadrangle on campus awaiting the results of the student representative council election that took place during the course of the day. The atmosphere was festive with music and alcoholic beverages being consumed.

“At one stage the appellant, who lived off-campus, asked the complainant if he could leave his speaker in her room at a residence on campus. She agreed and gave him her room keys. While in the complainant’s room he decided to charge his cellphone there as well. Later that same night he asked for her key again to retrieve his cellphone. The appellant returned the key to the complainant on both occasions.

“After the election results were announced, the complainant, who was feeling a bit tipsy by then, left the group for her room with the appellant following her. The appellant got delayed along the way but eventually entered the room of the complainant which was unlocked and lay down next to her on her bed.

“At one stage the complainant left the room and returned after some time. She asked him to leave her room. Soon after the appellant got out of bed a friend of the complainant knocked on her door. When the complainant opened the door, she ran out of the room crying.”

The complainant testified that the appellant had offered to walk her halfway to her residence after she had decided to call it a night. Although she declined the offer, the appellant nonetheless followed her. Halfway to the residence he was approached by a fellow student and while he remained to chat, she proceeded to her room. She left the door unlocked since she expected her sister to collect her key, which was with the complainant, later on. The complainant stated that she did not expect the appellant to follow her into her room since she had been under the impression that he had been banned from the residence at some prior stage.

The complainant testified that she fell asleep while still fully clothed and woke up when she felt someone putting his arms across her waist. When she turned around she saw that it was the appellant who was lying next to her in bed. Upon enquiring what he was doing in her room, the appellant told the complainant that he just wanted to cuddle. She refused but felt that the appellant had an erection. When she looked down she saw his clothes on the floor and realised that he was naked.

She stated further that the appellant started dry humping her – which she describes as having sex with ones clothes on, although in this instance she was the one fully clothed.

She said that the appellant refused to stop when she asked him to, whereafter she then, while still lying next to the appellant, used her laptop to contact her boyfriend on Facebook. She texted her boyfriend that someone was in her room and that he did not want to leave. She also asked her boyfriend to contact her sister or one of her friends about her situation. Her boyfriend told her to scream but the appellant said she should not scream.

After a while, she left the room to go to the bathroom which was situated down the passage. According to the complainant she sat there for about twenty minutes before she returned to her room. She had hoped that the appellant would have left by then.

When she asked him to leave he got out of bed but did not start getting dressed. There was a knock on the door and the appellant moved towards the door. When the complainant started moving towards the door the appellant told her not to open and went to stand behind the door.

The person at the door was her friend, who had been alerted to the situation by the complainant’s boyfriend. The complainant rushed past the appellant and unlocked the door, which she testified must have been locked by the appellant. She opened the door and ran past her friend to the toilet. When she ventured to her bedroom later on the appellant had left.

The appellant’s version was that he was approached by the complainant, while they were waiting for the SRC election results, to sit with her group of friends since he had music. When the battery of his speaker went flat it was the complainant who suggested that he take her key and leave the speaker in her room for safekeeping. By the time the election results were announced it was already late and since his residence was about four kilometres away, he asked the complainant if he could sleep over at her place. She agreed but added that he would have to wake up very early to go to his own place.

He said that when they got to her residence, she signed the security register and proceeded to her room, whereafter he signed the register and followed her. When he got to the complainant’s room, he knocked and entered. He saw the complainant lying in bed busy on her laptop. He took off his shoes and lay on his stomach on the bed where he fell asleep.

The appellant testified that he woke up when the complainant got out of bed and left the room. He then waited for her for a long time to return so that he could go home. He stated that he did not want to leave before she got back.

When the complainant eventually returned to her room she closed the door and asked him to leave. He had no problem with that, since it was his intention to go. As he was about to leave – he only had to put on his shoes – there was a knock on the door. The complainant surprised him by telling him to keep quiet. The knocking continued and the person was calling her name before eventually the complainant opened the door and ran out of the room.

Judge Williams pointed out that the trial court accepted as reasonable the complainant’s explanation for going to the bathroom instead of alerting the campus/residence security to the presence of an unwelcome naked man in her room – ie that she had given the appellant the benefit of the doubt that he would leave her room as she had requested of him.

While the fact that they knew each other may explain why the complainant elected to give the appellant an opportunity to leave of his own accord, it does not explain why, when she returned to her room and discovered that he had not left, the complainant nonetheless entered the room and in fact closed the door behind her.

Other inconsistencies and improbabilities pointed out by the defence in the State’s case was the fact that the complainant would not want the appellant to accompany her to her residence when it was common cause that his speaker was still in her room; and the fact that the complainant could have thought that the appellant had been banned from the residence (and therefore would not be able to gain entry) when he had been to her room on two prior occasions during the course of that night without any problem.

It was also pointed out that the complainant had left her door open whilst being aware that the appellant was following her; and she was also able to send multiple text messages via Facebook while, in her version, being sexually assaulted by the appellant.

“Despite the discrepancies, the trial court found that the complainant had maintained her version throughout, was honest, credible and satisfactory and that there was no reason not to believe the complainant.”

Judge Williams found, however, that the appellant’s version in the circumstances of the events of that evening, and specifically the fact that the witnesses had all partaken in alcoholic beverages, “cannot in my view be rejected as not being reasonably possibly true”.

“The State failed to prove the offence beyond a reasonable doubt and the appeal should succeed.”

The conviction and sentence were set aside.