MK Nkomo v The State

The appellant, a school teacher, was convicted in the regional magistrate’s court of raping a 13-year-old learner in November 2007 and sentenced to 15 years’ imprisonment. The conviction was based mainly on the complainant’s testimony, corroborated by family members and a J88 medico-legal report. While awaiting the hearing of his appeal against conviction, the appellant came into possession of a letter written by the complainant in May 2011 in which she recanted her trial testimony and alleged that she had been forced by her stepmother and a court interpreter to lay a false rape charge for purposes of extorting money. The appellant applied for the matter to be remitted to the trial court for the hearing of this further evidence. The High Court dismissed both the appeal and the remittal application, leading to the present appeal before the Supreme Court of Appeal.

The appeal was upheld. The conviction and sentence were set aside, and the matter was remitted to the trial court. The complainant’s letter dated 15 May 2011 was admitted into evidence, the State’s case was reopened, the defence was permitted to reopen its case, and the trial court was authorised to hear further relevant evidence.

The case is significant for clarifying and applying the stringent test for remitting criminal matters to trial courts for further evidence on appeal. It illustrates that, despite the general reluctance to reopen concluded trials, credible post-conviction recantations supported by contextual evidence may constitute exceptional circumstances warranting remittal, in the interests of justice.