Law student who spent 2 years in jail for rape he didn't commit speaks out

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Osiphesona Ngcanga (27) vividly remembers the day his life took a nasty turn after spending two years behind bars for rape, before his sentence was overturned on appeal last month.

He had just been found guilty and was given a prison term for a crime he knew he did not commit and his hopes were that one day, justice would prevail, awarding him the taste of freedom once again.

Osiphesona was an LLB graduate, working towards a master’s degree in maritime law at the Nelson Mandela University when he was arrested for the crime.

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The state’s case against him was that he raped another student at a party in February 2017. He however, maintained that it was a consensual sexual activity and to make matters worse, the girl said she could not remember what transpired.

Five months down the road, the Port Elizabeth regional court found Osiphesona guilty and sentenced him to eight years behind bars for the crime.

SHATTERED DREAMS

Osiphesona’s dreams fragmented before his eyes.

He prayed and this painful moment reminded him of the biblical story of Joseph who was sent to prison on allegations that he raped his boss’ wife but later went on to become the prime minister.

“I prayed, it was weird because my life was seemingly destroyed and yet I had an overwhelming feeling of peace.

“I knew there was a purpose for what had happened to me and I thanked God for the opportunity to go preach His Word at St Albans Correctional Centre,” he said.

Soon after his prayer, Osiphesona was moved to another holding cell, alongside two other guys who had also been sentenced that same day.

The two were convicted for murder.

“There were two guys in the cell, one was a black guy and the other was a coloured guy. The coloured guy walked up to me and said, ‘Hosh!’ and started searching me. I had R50 on me and he took it. I knew then that it was going to be a tough eight years trying to survive prison life.

“Later that day we were then all transported to the prison and on that drive, I started telling them about Paul and all the biblical people that had been imprisoned,” he said.

FREEDOM LOST

He felt at ease and never imagined he would be convicted.

“During my trial I had not thought of the possibility of going to prison and so I did not even think what it would be like.

“I relied on the fact that I knew that I had not raped her and being a law graduate, I knew the facts could not lead to a conviction because the story did not make sense or add up,” he added.

However, magistrate Nolitha Bara found him guilty and sentenced him to eight years in jail.

“Prison was not easy at all, but it was by the grace of God that the other inmates found out that I was a lawyer and they came to me for legal advice.

“Everything you have heard about gangs in prison is true, it is hectic in there, but I was covered by the blood of Jesus.

“The gangs have their rules that they abide by and I was fortunate in that most of the people that approached me for legal advice were affiliated to the 26 gang and they do not allow sodomy. It is the 28 gang that rape.

“I was protected by the 26 gang members in exchange for the legal advice I offered them,” he said.

Osiphesona could not be drawn into giving away much detail about the two years he spent in prison because he didn’t want to pre-empty a book he is writing.

The book promises to be a riveting read, which will include stories of bloodshed and an attempted rape.

THE FATEFUL NIGHT

Flashback, Osiphesona recalls attending a 21st birthday party with a friend.

At the party, he saw a beautiful girl on the other side of the room, but he did not approach her.

“I am quite the dancer, so I hit the dance floor with the other people at the party. Most of us were drinking alcohol. I felt a bit light-headed and decided to sit down.

“The girl I saw earlier came up to me and complimented me about my dancing. That gave me an opportunity to chat with her.

“We clicked. We were having a nice chat and were getting to know each other. We started kissing.

“While we were kissing, a friend of hers pulled her away and left with her. But she came back, and it happened again.

“Then later she and I went to my friend’s car for a bit more privacy. We got into the backseat where we kissed and started having unprotected sex,” he said.

Osiphesona said the girl saw someone approaching the car and instructed him to stop.

“And I did. It turns out it was that friend of hers, back again, and she came with other people trying to open the car doors. She told people that I was raping her friend.

“We all went back inside the house and all the friends were questioning her on whether she had been raped or not, but she just sat there quietly.

“My friend and I left. The following day I heard that she and her friends had gone to open a case of rape against me,” he added.

He then went to the police station where he was arrested and charged the following day.

He never refuted having sex with the woman, but he maintained that the sex was consensual.

THE EVIDENCE

It was the court’s that even though the young lady was on her period on the day in question, the nurse at Dora Nginza Hospital in Port Elizabeth was able to do a vaginal test.

After hearing the appeal, judges Sunil Rugunanan and Buyiswa Majiki opined the prosecutors and magistrate who convicted and charged Osiphesona misdirected themselves in the application of the law.

“The magistrate’s approach constituted a misdirection which resulted in a conviction founded on the incorrect premise that the consent contended for by the appellant was automatically vitiated by the plaintiff's mere consumption of alcohol which rendered her in a state of unconsciousness.

“The magistrate’s overall approach to her evaluation of the evidence, and particularly the credibility findings in favour the state witnesses clearly overlooked the material shortcomings and discrepancies in their evidence and where it fell short of the onus,” the judgement reads in part.

A Legal Aid attorney represented Osiphesona during his trial.

He sought advice from one of his former lecturers who then helped with his appeal in the Grahamstown high court. He spent nearly two years in prison, before the conviction and sentence were set aside.

He finally tasted freedom once again in January this year. Osiphesona enjoys spending time with his family in Mdantsane, while planning his next move.


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