The conviction and life sentence of a man found guilty of raping an 11-year-old girl – with whom he fathered a child – has been overturned and replaced with five years in jail.
Former security guard Philemon Rapagadie, 53, was convicted in the Parow Regional Court of raping the Bishop Lavis girl on two occasions, in November 2006 and in January 2007.
Magistrate Elsa van Zyl sentenced him to life on December 20, 2010. However, Western Cape High Court Judge Rosheni Allie set aside the regional court’s finding on Friday, overturning not only the sentence but also the conviction on two counts of rape.
She replaced the conviction with statutory rape and sentenced him to five years’ imprisonment.
Rapagadie’s victim was his neighbour and she was friends with his daughter, who was 16 at the time.
DNA test results that emerged during his trial proved that he was the father of the 11-year-old’s baby son, who was born on July 12, 2007 and given up for adoption.
The decision has come as a shock to children’s rights group Molo Songololo, with director Patrick Solomons saying it raised questions over whether the courts were sending a clear message against women and children abuse.
“I’m very concerned that the high court made such a drastic judgment and reduced his sentence so severely,” said Solomons.
“We’re worried that with appeals, the high courts only look at hard facts and do not always consider all the sensibilities that the lower courts do, such as the community. We still find that the courts are too inconsistent and that sexual offenders with enough resources often run to the high court to get the initial decision overturned.”
Allie found that the magistrate had “seemed content to conclude” that Rapagadie was guilty, beyond reasonable doubt, of two counts of rape just because the DNA results showed he was the baby’s father.
“Even though the DNA tests are conclusive, at best for the State, (Rapagadie) ought to have only been convicted of statutory rape,” Allie said.
She also questioned the girl’s testimony, saying it needed to be considered with due regard to her age and life experience.
Allie found that the girl’s testimony about the first incident did not set out enough facts to prove that Rapagadie had raped her.
“She was rebellious and… associated with friends much older than she was, like the daughter of (Rapagadie),” she said.
The girl claimed she was first raped in 2006 when Rapagadie asked her to accompany him to the shop.
According to her version, he had stopped to put petrol in his bakkie, then drove to a dark area in Langa where he had tried to rape her, but unsuccessfully.
She had not told anyone because he had threatened to kill her if she did.
The second incident had taken place just a couple of months later, when he again asked her to accompany him to the shop. She claimed he drove to the same dark area in Langa where he had raped her in his bakkie.
Allie found that there was “no reasonable explanation” why the girl would have gone with him a second time after the first incident.
In addition, the baby’s birth date showed that she most likely conceived during the first incident, rather than the second.
“The complainant gave very scant evidence of how she was raped the second time, relying on the detail she gave for the first incident as applying also to the second,” said Allie.
Rapagadie’s five-year jail sentence was effective as of December 20, 2010 and Allie ordered that it run concurrently with any unexpired part of his sentence for a separate crime.
Rapagadie is serving a 15-year sentence for attempting to kill his wife by shooting her outside a Muizenberg church five years ago. - Cape Times
