Durban man cleared of rape after 13 years in prison

Share this article: Share Tweet Share Share Share Email Share

DURBAN - AFTER 13 years behind bars in Westville Prison, Njabulo Ndlovu will become a free man after being acquitted of rape at the Pietermaritzburg High Court on Friday. The 35-year-old uMlazi man was sentenced to life imprisonment after being convicted of the 2002 gang rape of a pregnant woman who knew him as they went to the same school and their fathers had worked together. He was 19 and a second-year student at the University of Durban-Westville (today the University of KwaZulu-Natal) at the time. He testified during the trial that he had been nowhere near the place where the gang rape took place. During the trial, three of the five accused were discharged due to lack of evidence, while Ndlovu and another remained in prison. After Monday, only one accused will remain in prison. While Ndlovu was in prison for over a decade, he never lost hope, as he continued pursuing law studies and received a law degree from Unisa in May this year.

And on Friday, a full bench of judges upheld the appeal against Ndlovu’s conviction and sentence. He now intends to sue the minister of justice for damages.

In delivering the judgment, Judge Rashid Vahed said the DNA evidence had not linked Ndlovu to the crime and raised concerns about the conduct of Magistrate Mike Lasich, the man who had presided over the trial.

He said: “At one point during her (victim’s) evidence in chief she was asked by the prosecutor as to whether she had been for any form of therapy since the incident at which point the magistrate interjects by indicating that he notes that there is an exhibit in his file relating to treatment for depression at the Prince Mshiyeni Hospital. There is simply no indication on the record as to how such document, if it did exist, made its way into the magistrate’s papers”.

The document does not form part of the court record.

Regarding the DNA analysis, Vahed said although DNA samples had been collected from Ndlovu, the results were not known and were never used as evidence.

When Ndlovu’s attorney asked him if he knew the DNA results during the trial, he answered that he was not aware and was still waiting to be informed of the results, to which Magistrate Lasich intervened again and said he knew the results.

Lasich could be heard on the record saying the form said “no male semen could be determined or DNA should I say”.

“It appears now that he (Lasich) was also in possession of a report relating to the DNA analysis. The report itself was never introduced into evidence and does not form part of the appeal record. Quite what the results were is unknown to us as an appeal court the magistrate said from the portion I have quoted above is that the sample for DNA submitted for testing could not establish any link to the appellant,” said Vahed.

Vahed said the record was littered with a number of “unfortunate interjections” by the magistrate who brazenly intervened and made leading statements to assist the State’s case.

“Such conduct must be avoided at all costs. In the result I am of the view that the conviction of the appellant is highly unsafe and ought to be set aside,” said Vahed.

Ndlovu’s fight for freedom has been a long one after the Durban High Court refused him leave to appeal. He took the matter to the Supreme Court of Appeal, which directed the matter to be heard by a full bench of judges at the Pietermaritzburg High Court, but he ran out of funds.

Hope resurfaced for Ndlovu when one of his former university classmates, attorney Andile Magubane, took up the matter aided by advocate Tendayi Kadungure.

Magubane said he was moved when he visited Ndlovu in prison and it prompted him to fight against the conviction.

[email protected]

SUNDAY TRIBUNE