Failing to poke holes in the credible testimony of his 13-year-old rape victim and her mother, a rapist’s appeal against his conviction and sentence has failed in the Western Cape High Court. 

Thanduxolo Nashwa, who went on trial at the Wynberg Regional Court, appealed against his 18-year prison sentence, but this was denied by acting Judge Esmari Jonker, who said that his case made before the court was improbable and inconsistent with the overall probabilities that it could not reasonably be true.

The rape occurred on November 21, 2021. In his appeal, he disputed the credibility and reliability of his victim as a single minor witness.

Having faced the possibility of life term imprisonment, Nashwa was imprisoned for 18 years by the magistrate, who deviated from the prescribed minimum sentence.

Despite this, Nashwa contended that the regional magistrate failed to undertake a holistic assessment of the alleged substantial and compelling circumstances. He further argued that the sentence imposed was “excessive and did not accord with the interests of justice or those of society”. 

However, Jonker said Nashwa’s version was contradicted by the complainant, her mother, and the medical evidence.

The high court said there was no basis to interfere with the regional magistrate’s judgment on conviction.

“Viewed in its entirety, his version lacked credibility and had to be rejected — particularly in light of the objective medical evidence, which remained undisputed. His version could not be reconciled with either the medical findings or the corroborative accounts of the complainant and her mother. This court agrees with the findings of the trial court.

“The magistrate cited appropriate legal authority in support of her conclusions. She found no basis to depart from the prescribed sentence but, as an act of mercy, imposed a sentence of 18 years’ imprisonment rather than life imprisonment.”

As part of the trial court judgment, the magistrate ordered Nashwa’s details be entered into the National Register for Sex Offenders, declared him unsuitable to work with children, and found him unfit to possess a firearm.

During the trial, the court heard that the complainant knew Nashwa, who resided across from her and her mother at their hostel. 

They would occasionally converse about topics such as school and cooking, and she regarded him as an older brother. The complainant was uncertain whether the appellant was aware of her age, but she testified that he was aware that she was in school.

On the day of the incident, it was the complainant’s version that she had attended a party and returned home by 9pm. She went to bed but later awoke feeling nauseous at approximately 11pm. 

After using the bathroom, she encountered Nashwa, who asked her to assist him with the light in his room. The girl then entered Nashwa’s room when he closed the door and pushed her onto his bed, and covered her mouth with his left hand. The girl testified in court that Nashwa removed her clothing and shoes.

“The complainant testified that she was crying and calling for her mother. Her mother heard her cries, banged on the door, and eventually kicked it down. She stated that the appellant looked towards the door and ceased the assault. Her mother pushed the appellant off her and instructed the complainant to return to their room, after which the mother physically assaulted the appellant,” the trial court heard.

It was Nashwa’s version that he found the complainant lying next to the toilet.

On Nashwa’s version, the court details read: “According to him, she told him that she was drunk and afraid to go home because her mother would be angry and beat her. She allegedly asked if she could sleep in his room until the following morning. Feeling sorry for her and not wanting her to get into trouble, he allowed her to stay.

“They were sitting together on his bed when he asked her when she planned to leave. The complainant then allegedly begged him not to disclose her whereabouts to her mother, who was at that moment walking through the corridor, looking for her. According to the appellant, the complainant whispered in his ear not to say anything because she was drunk. He denied penetrating or raping the complainant. He testified that it was when the complainant’s mother kicked down the door that prompted the complainant to begin crying.”

chevon.booysen@inl.co.za

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