ConCourt finds no lenience for rapist with three life-term sentences

The Constitutional Court has once again refused leave to appeal by a man who was sentenced to three life imprisonment terms after being convicted on three counts of rape 18 years ago.

Oscar Vusi Thwala asked the Constitutional Court in his latest bid to set aside his convictions and sentence.

Thwala said his conviction was substantially unfair based on the fact that the trial court determined his case without considering DNA evidence that was being processed during his trial. He said this was despite the trial court being notified that the evidence would be available within 15 weeks.

Thwala said the trial proceedings were in Afrikaans and neither he nor his lawyer understood the language. He added that the trial judge’s hostile interventions had violated his right to a fair trial.

“This is the third time this court has had occasion to consider Thwala’s case‚” the Constitutional Court said in its judgment on Thursday.

After being sentenced in 2003‚ Thwala applied to the Constitutional Court for leave to appeal in February 2016. “His application was dismissed for lack of prospects of success in May 2016‚” the Constitutional Court said in its judgment on Thursday.

In October 2016‚ Thwala wrote to the Constitutional Court pleading for “legal sympathy”. The apex court responded in February 2017‚ advising him to approach Legal Aid SA for help lodging a proper application that could be considered by the court.

In its judgment on Thursday‚ the court said the ‘res judicata’ doctrine prohibited the reconsideration of a case that had already been finally determined. However‚ the court said the doctrine was not absolute.

But the court refused to grant leave to appeal in this latest bid‚ adding it had considered the DNA evidence when Thwala first tried to appeal in 2016.

“In Thwala’s case‚ this court properly considered the fairness of his trial in 2016.

“This court also evaluated the impact of the DNA evidence and concluded that‚ in circumstances of gang rape‚ the fact that spermatozoa matched a co-accused and not the applicant is not significant‚” justice Johan Froneman said in the judgment‚ supported by all judges.

Froneman said the new grounds of unfairness now raised – that the judge descended into the arena and that the proceedings were held in Afrikaans – did not demonstrate that significant injustice would result should the original order be allowed to stand.

Froneman said the court had analysed the judge’s interventions and comments‚ after obtaining the original Afrikaans transcript and the English translation provided by Thwala.

“The judge’s interventions were unfortunate‚ but nowhere nearly provide any foundation for a finding that the trial was unfair.

“Neither do the complaints about Afrikaans amount to a finding that the trial was unfair‚ given that the applicant was represented and that the proceedings were interpreted‚” Froneman said.

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