adminl Abused niece’s honesty charms magistrate l Ngwenya’s pack of lies fails to deceive court
Zvikomborero Parafini
RONALD Ngwenya was nailed by his teenage niece’s bravery and honesty in describing the horror she went through when he sexually abused her at their home in December last year.
The former night club manager will spend the next 12 years in jail after he was convicted of aggravated sexual assault on Friday by magistrate Fadzai Mthombeni.
It concluded one of the most closely-followed sexual assault cases of recent years because of the public profile of Ngwenya and which saw another magistrate recuse himself during the process.
The star witness, Ngwenya’s former maid, even ‘disappeared’ for months, delaying the trial, until she was secured through a private initiative which was undertaken by the complainant’s father.
Ngwenya’s decision to go to the gym, on the morning the child accused him of sexually abusing her, and then to only report to the police three days after the incident, did not appear to sit down well with the court.
The schoolgirl was praised by the court for her honesty, despite the difficult circumstances she faced, given the crime had been committed by a man she considered to be her father.
Ngwenya’s family was overcome by emotions as magistrate Mthombeni handed down her thorough judgment and sent him to jail for 12 years.
The magistrate said the Ngwenya case, was a bad case of sexual abuse especially because of the parties involved.
“What’s bad about these cases is that their effects are felt afar, their relationship as a family is strained.
“The wife gets sentenced together with him while the child will be blamed because she is still suffering from the ordeal she faced and she will wonder on what she could have done.
“This is a bad case of sexual abuse because of the parties involved,” she said.
Ngwenya was facing two counts of rape and one of indecent assault.
He was acquitted of the two rape charges but was convicted of aggravated indecent assault on the two charges.
He was also convicted of indecent assault.
Magistrate Mthombeni first gave the background of the case before getting into the merits and analysis of the evidence that was brought forward during trial.
“Accused appeared before me charged with rape and indecent assault and the allegations were said to have occurred on the same night.
“The indecent assault charges are that he fondled her breasts and he raped her thereafter, the state called the maid and the child in their case while the accused was the only witness in his defence case.
“The agreed facts of the case were that accused and the child had a good relationship and he had taken care of her since she was in grade one.
“It was agreed that there were seven people in the house, the parents, two other children, the maid, the complainant and one Owen who is a 30 year old.
“The report was made immediately to the maid and the aunt, wife to accused was advised of the offense the next morning.
“The child was taken to the doctor and was found with a bruise and the hymen was stretched, the state alleged that accused committed the offence,” she said.
She went on to give her findings on the medical affidavit which was tendered by prosecutor Zvikomborero Mupasa when he opened his case.
“The court looked at the medical report that showed that penetration was definite as there was a fresh bruise.
“The court reached the decision that it was definite because according to the rules of logic, the inference sought to be drawn must be consistent with the evidence presented.
“The proved facts must exclude any reasonable inference except from one sought to be drawn.
“The court considered that the child made a rape complaint, the circumstances showed that it was made immediately.
“She made it voluntarily because she went to the maid’s bedroom and woke her up.
“The report was made to the maid because she was free to her and she didn’t tell her aunt because she knew that she wouldn’t believe her, this is so because they were her parents and the fear of support from family is common amongst victims of sexual abuse.
“The State and defence interacted with the child, she showed the court that she was confident and didn’t have anything against the accused.
“The court asked itself if she was abused and it saw that fresh bruises and her vagina had been tempered with and the doctors concluded that it was stretched.
“The defence argued at length that the evidence didn’t confirm penetration but they conceded that there was a bruise on the forshet,” she said.
Magistrate Mthombeni went on to analyse the issue of identification which had been raised by Ngwenya’s defence team which argued that the child may have made a mistake as it was at night in the dark.
“The next issue the court seized with was that of identification.
“The defence assisted the court on the identification aspect because of fallibility of identification by humans and tested the reliability of the complainant.
“It’s not enough for the identification party to just state that they saw someone, their reliability must also be tested and this depends on lighting and eyesight, the proximity of the witness, the extent of prior knowledge of the accused, the mobility of the scene, corroboration, built and the evidence of the accused.
“The child was sincere and honest and that’s not enough, her identification ability must be tested.
“The court in testing the identification noted that this was at night, the extent of prior knowledge of the accused, here is a child and a father who have been staying together for 8 years would she have not been mistaken.
“There was not much mobility, she wasn’t mistaken to the fact that mother was in the kitchen the other males were in the lounge, the court looked at this as their everyday setting, wouldn’t she be mistaken.
“The other issue was that of the built, the court saw the said Owen in court who has a smaller built with that of accused and the complainant wouldn’t have mistaken them.
“This court considered what both the maid and the complainant said, that one could see through the see through curtains and this is a home they had stayed with him in the circumstances and the court didn’t doubt their evidence in that aspect.
“The child didn’t name any other person she told Winnet the maid that it was the father, she could have said someone did something to me, but she was specific that it was the accused because she had seen him.
“The report was made promptly when the evidence was still very fresh so the memory and the room to manipulate evidence wasn’t present because she made the report without any delay.
“The prompt report speaks volumes on identity and the issues of consent,” she added.
“The court asked itself if there were any questionable aspects, the complainant didn’t give the graphic details and the court tried to find out why she left out other parts.
“She said she simply advised the maid of the offense and that she heard him talking in the corridor so this court considered that the way she left out some information cannot be equated to lying or concealing evidence.
“What she had said is enough to prove sexual abuse and prompt report showed that she didn’t like what has occurred, she rushed to the maid and spent the night crying.
“Considering the circumstances, this was the only chance she had and she knew that she thought mother couldn’t believe this because from the evidence we heard,no one from this home expected this as it was a peaceful home.
“Why would she then just wake up and fabricate such a story and then be found with a bruised vagina, the child was under shock as it had been done by someone she trusted and looked up to.
“The duty of the trial is to find out if the witness is telling the truth and the child’s power of observation and recollection, capacity to observe, this court asks itself if the child is intelligent enough to observe.
“The child in this case was able to recollect and observe, her intelligence was enough to observe.
“The court finds it difficult to believe accused’s version of the events, he was home at the material time, Owen’s statue and his were different.
“The child didn’t know about the bad blood between her father and uncle, he tried to exonerate himself but failed to convince the court.
“In this case the child was penetrated but not the standards of how rape is explained as the penetration was done by a finger on both occasions.
“It would be proper to acquit him of rape and to convict him with aggravated indecent assault and indecent assault,” she said.
In giving the reasons for sentencing, Magistrate Mthombeni said she considered Ngwenya’s personal circumstances she was also guided by the provisions of the law.
“The convicting court has a duty to pass a sentence after considering accused’s personal circumstances guided by the provisions of the law.
“Court looked at the personal circumstances that he’s a family man, father of three who was looking after complainant showing that he’s a hard working responsible member of the community.
“He’s a first offender at 40 and the court should be lenient towards first offenders and keep them out of prison when possible.
“The court can’t turn a blind eye to the publicity of this case and he has been shamed enough so there has to be a balance on the offense, the offender, the complainant and the interests of justice.
“Accused is sentenced to 15 years in prison with three years suspended on condition that he doesn’t commit a sexual offence in the next five years, 12 are effective.”
Mathew Masinge
Online Reporter