Brief Summary

Criminal Law — Rape — Conviction and sentencing of appellants for rape — Appellants convicted based on evidence of complainant and witness — Appeal against conviction and sentence — Standard of proof on the State to establish guilt beyond reasonable doubt — Evidence linking appellants to crime found sufficient and credible — Appeal dismissed, convictions upheld.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a criminal appeal to the Gauteng Local Division, Johannesburg, against convictions and sentences imposed by the Regional Court, Protea. The matter concerned two appellants, Sheldon Nkabinde (Appellant 1) and Charles Botha (Appellant 2), who had been convicted of rape.

The respondent was the State. The appeal was disposed of without an oral hearing by consent in terms of section 19(a) of the Superior Courts Act 10 of 2013, and the judgment was delivered electronically on 25 August 2020.

Procedurally, both appellants were convicted on 22 July 2010 of rape in contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, and each was sentenced to 10 years’ imprisonment. Both were also declared unfit to possess a firearm under section 103(2) of the Firearms Control Act 60 of 2000. Leave to appeal was granted by the trial court in 2010. The appellants were on bail pending appeal, subject to conditions requiring surrender within a specified period if the appeal failed.

The general subject-matter of the dispute was whether the State proved, beyond reasonable doubt, that each appellant had independently raped the complainant (who could not identify her assailants due to unconsciousness), and whether the convictions and the minimum sentences were sustainable on the evidence, including circumstantial evidence and DNA evidence (particularly in relation to the second appellant).

2. Material Facts

The background facts were largely not contentious. On the evening of 21 November 2008, a birthday party was held in Klipspruit at a house where the complainant’s cousin was staying. The complainant attended the party, as did both appellants and several of the complainant’s cousins, including Julia Bata (Julia) and Rashida Abrahams (Rashida).

The complainant consumed alcohol and later became very tired and intoxicated. She was taken to a bedroom and placed in bed. The room contained two beds. She fell asleep while still clothed (wearing underwear, jeans, a top and jacket). It was uncontested that she remained in an unconscious state until the following morning.

The next morning the complainant was informed by others that she had been raped. Later that morning, once fully awake, she observed blood on the bedsheet and her underwear, experienced pain and burning when urinating, and felt soreness and instability. She did not know who had penetrated her and did not consent to sexual intercourse. A medical examination on the same day confirmed injuries consistent with recent vaginal penetration with a blunt object.

At trial it was not disputed that the complainant had been raped. The disputed issue was whether the State proved that each appellant had raped her.

The State relied substantially on the evidence of Julia and Rashida, who described finding the appellants separately in the bedroom in circumstances they regarded as incriminating. Julia testified that she woke during the night and found the second appellant in the bedroom near the complainant, with the complainant’s jeans and panties pulled down and the second appellant apparently in the process of pulling the jeans up; Julia also testified that she later heard the second appellant say words to the effect of having “done [his] thing”. Rashida testified that after receiving a report, she went to the bedroom, switched on the light, and found the first appellant there, fully clothed, attempting to pull up the complainant’s pants while the complainant remained unconscious; she saw blood and that the complainant’s lower clothing was displaced.

A trial-within-a-trial was held regarding the admissibility of a statement made by the first appellant to police. The statement did not amount to a confession to rape; rather, it suggested consensual intercourse while the complainant was awake, and described him later helping her get dressed when confronted. The first appellant testified at trial and materially departed from the statement, asserting he had merely found the complainant in a compromised state and tried to cover her. The second appellant did not testify, applied unsuccessfully for a discharge under section 174 of the Criminal Procedure Act 51 of 1977, and then closed his case without leading evidence.

A significant common-cause feature of the record was that the second appellant voluntarily submitted to DNA testing at the commencement of the trial, and the DNA results excluded him. The record did not contain evidence that the first appellant submitted himself for DNA testing.

3. Legal Issues

The central legal questions were whether, on the evidence as a whole, the State proved beyond reasonable doubt that each appellant raped the complainant, notwithstanding that the complainant could not identify the perpetrators and that the case against each appellant was primarily circumstantial.

In relation to the second appellant, a key question was whether the trial court correctly evaluated Julia’s evidence as a single witness, and whether it properly weighed that evidence together with the exculpatory DNA result. This raised a question of the application of law to fact, particularly concerning evidential assessment, single-witness caution, and holistic evaluation of all evidence.

In relation to the first appellant, the issues included whether the trial court correctly admitted the first appellant’s statement (following the trial-within-a-trial), and whether the first appellant’s trial version was reasonably possibly true when assessed against the State evidence (especially Rashida’s evidence) and probabilities. This again primarily concerned the application of criminal evidentiary principles to the proven facts.

As to sentence (in relation to the first appellant, given the court’s conclusion on conviction), the issue was whether the trial court committed any misdirection or imposed a sentence that justified appellate interference, in circumstances where the trial court imposed the prescribed minimum sentence for rape under the Criminal Law Amendment Act 105 of 1997.

4. Court’s Reasoning

The court restated foundational principles governing criminal adjudication: the State bears the onus to prove guilt beyond reasonable doubt, and an accused’s version may not be rejected merely because it is improbable; it may be rejected only if the court concludes, on credible evidence, that it is false beyond reasonable doubt. Correlatively, if the accused’s version is reasonably possibly true, the accused is entitled to an acquittal. The court also emphasised that evidence must be assessed holistically.

The court further noted the limited basis on which an appellate court may interfere with factual findings, particularly credibility findings based on oral testimony, absent a misdirection. However, where a trial court misdirects itself in the evaluation of evidence, appellate interference may be warranted.

Evaluation relating to the second appellant

The trial court had accepted Julia’s evidence and convicted the second appellant, finding insufficient animosity for fabrication and treating the circumstances in which he was found as adequate to sustain guilt. On appeal, the court held that the trial court misdirected itself by failing properly to weigh all the evidence, particularly the DNA evidence.

The appeal court considered that the second appellant had voluntarily submitted to DNA testing and that the results excluded him. The trial court’s treatment of DNA—suggesting DNA would only assist if the perpetrator ejaculated—was criticised because those qualifications were not canvassed in evidence and effectively diminished the probative value of an exclusionary result without evidential foundation. The appeal court regarded the exclusionary DNA evidence as a material factor that should have carried substantial weight in a proper evaluation.

The court also highlighted weaknesses in Julia’s evidence, including discrepancies between her police statement and her testimony. In her statement she had asserted that she saw the second appellant “busy raping” the complainant, while at trial she testified more cautiously that she assumed rape from the compromising situation. Additionally, the alleged later “bragging” (“done my thing”) did not appear in her police statement. The court also found aspects of her conduct (such as returning to sleep after discussing unrelated matters) to be improbable in a way that counted against treating her version as fully reliable on the critical inference.

In the result, even accepting that the second appellant was found in a compromising position, the appeal court held that this did not equate to proof beyond reasonable doubt of rape, especially in light of his DNA exclusion. The court therefore concluded that the trial court’s finding that guilt had been proved beyond reasonable doubt could not stand.

On the State’s argument that an adverse inference should be drawn from the second appellant’s failure to testify, the court rejected this. It held that the evidence against the second appellant did not establish a sufficient prima facie case such as to justify an expectation of an exculpatory explanation, and that the failure to testify could not “bolster” an otherwise inadequate State case.

Evaluation relating to the first appellant

The court treated the first appellant’s position differently. It recorded that there was no DNA evidence linking him, but also that there was no evidence he had submitted himself for DNA testing, unlike the second appellant.

On admissibility, the court was not persuaded that the trial court misdirected itself by admitting the first appellant’s statement. It accepted that the trial court was entitled to find Superintendent Shibambo an honest and truthful witness and to find the statement was made freely and voluntarily. Although the form used by the police was not correctly completed in all respects (including failures to record responses to rights and other errors), the appeal court held that these mistakes did not, on the evidence, negate the conclusion that the first appellant’s rights were explained and that the statement was voluntarily made. The court also stressed that no evidence established that the contents of the statement were prescribed to the first appellant.

On the merits, the court was not persuaded that the trial court erred in accepting Rashida’s evidence. It considered the first appellant’s accounts (in his statement and testimony) to overlap with Rashida’s description of the circumstances in which he was found in the bedroom, particularly relating to him being present while the complainant was unconscious and partially undressed and to his purported attempt to pull up her pants. The first appellant’s asserted innocent explanation—concern leading him to enter the room and “help”—was found unconvincing and improbable on the record, including because the complainant’s unconsciousness was not seriously challenged and because the suggestion of consensual intercourse while she was awake conflicted with the broader body of evidence indicating she was “passed out” and unable to consent.

Applying the approach to improbabilities and reasonable possibility as articulated in authority, the court held that the trial court properly considered the whole conspectus of evidence and was justified in concluding that the State proved beyond reasonable doubt that the first appellant had intercourse with the complainant without consent.

Sentence

The appeal court reiterated that sentence falls pre-eminently within the discretion of the trial court and that appellate interference is justified only where there is a material misdirection or the sentence is disturbingly inappropriate. It recorded that the first appellant had been charged with rape read with section 51(1) of the Criminal Law Amendment Act 105 of 1997, which prescribes minimum sentences, and that under Part III of Schedule 2 the applicable minimum sentence for rape was 10 years’ imprisonment.

The court held that, although the trial court did not expressly set out the absence of substantial and compelling circumstances, it did consider relevant factors (including the offender’s personal circumstances, the seriousness of rape, and societal interests). The appeal court was not persuaded that the factors advanced for the first appellant (including youth, first-offender status, and asserted limits on harm) amounted to substantial and compelling circumstances justifying deviation. The complainant’s vulnerability (unconsciousness), the gravity of the offence, and its impact on the complainant were treated as significant aggravating considerations. The sentence of 10 years’ imprisonment accordingly attracted no basis for interference.

5. Outcome and Relief

The appeal court granted condonation for the late filing of heads of argument (the application being unopposed and supported by the respondent).

The appeal by the first appellant against both conviction and sentence was dismissed. The appeal by the second appellant against both conviction and sentence was upheld, and his conviction and sentence were set aside.

As further operative relief, the first appellant was directed to surrender himself to the Johannesburg Correctional Services within 10 days of the order, failing which the registrar was authorised and directed to issue a warrant of committal. The judgment does not record a separate costs order in the appeal.

Cases Cited

R v Difford 1937 AD 370.

S v Francis 1991 (1) SACR 198 (A).

S v Jaffer 1988 (2) SA 84 (C).

S v Khan 1997 (2) SACR 611 (SCA).

S v Malgas 2001 (1) SACR 496 (SCA).

S v Malgas 2001 (1) SACR 469 (SCA).

S v Mhlangu and Others 2012 (2) SACR 373 (GSJ).

S v Mokoena [1956] 3 All SA 208 (A).

S v Monyane 2008 (1) SACR 543 (SCA).

S v Sauls and Others [1981] 4 All SA 182 (AD); 1981 (3) SA 172 (A).

S v V 2000 (1) SACR 453 (SCA).

S v Van der Meyden 1999 (1) SA 447 (W).

S v Van der Meyden 1999 (1) SACR 450 (WLD).

S v Combrinck [2011] ZASCA 116; 2012 (1) SACR 93 (SCA).

Maphana v S (174/2017) [2018] ZASCA 8 (1 March 2018).

Shackell v S 2001 (4) All SA 279 (SCA).

Tsiki v The State (358/2019) [2020] ZASCA 92 (18 August 2020).

Tshabalala and Another v S ZACC 48; 2020 (3) BCLR 307 (CC) (11 December 2019).

Legislation Cited

Superior Courts Act 10 of 2013, section 19(a).

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, section 3.

Firearms Control Act 60 of 2000, section 103(2).

Criminal Procedure Act 51 of 1977, sections 174 and 208.

Criminal Law Amendment Act 105 of 1997, section 51(1) and Schedule 2 (Part III).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the trial court’s conviction of the second appellant could not stand because the trial court misdirected itself in its evaluation of the evidence, particularly by failing properly to weigh the fact that the second appellant had voluntarily submitted to DNA testing and was excluded by the DNA results, and by relying on single-witness circumstantial evidence that contained material inconsistencies and improbabilities. The second appellant’s conviction and sentence were therefore set aside.

In contrast, the High Court held that the first appellant’s statement was properly admitted, that the trial court’s acceptance of the State evidence (including Rashida’s evidence) was not shown to be wrong, and that the State proved beyond reasonable doubt that the first appellant had sexual intercourse with the complainant without her consent. The first appellant’s conviction was confirmed, and the sentence of 10 years’ imprisonment (the prescribed minimum) was upheld due to the absence of substantial and compelling circumstances justifying deviation.

LEGAL PRINCIPLES

The judgment applied the principle that the State must prove guilt beyond reasonable doubt, that an accused bears no onus to prove innocence, and that an accused must be acquitted if their version is reasonably possibly true. It further applied the approach that evidence must be considered holistically, and that a conviction may be sustained only if the accused’s version is shown to be false beyond reasonable doubt on the totality of evidence.

It reaffirmed that appellate interference with factual findings, especially credibility findings based on oral evidence, is limited and ordinarily requires a demonstrable misdirection; however, where a trial court fails properly to account for material evidence (including objective evidence such as DNA results) or relies on speculation not supported by evidence, this may constitute a misdirection justifying interference.

The court applied the principles governing conviction on the evidence of a single witness, namely that such evidence may found a conviction if it is considered trustworthy after weighing its merits and demerits, while recognising that shortcomings and contradictions must be evaluated in context. The appeal court’s analysis illustrates that where single-witness evidence is materially inconsistent or improbable on critical aspects, it may be insufficient to sustain proof beyond reasonable doubt, particularly when weighed against strong objective evidence.

The judgment also addressed when an adverse inference may be drawn from an accused’s failure to testify, indicating that such an inference cannot be used to repair deficiencies in the State case and is not warranted where the evidence does not establish a sufficient prima facie case calling for an answer.

On sentence, the judgment applied the principle that sentencing discretion lies primarily with the trial court, and that appellate interference is permitted only in narrow circumstances such as material misdirection or a sentence that is disturbingly inappropriate. It applied the minimum sentencing framework under the Criminal Law Amendment Act 105 of 1997, holding that deviation from the prescribed minimum requires substantial and compelling circumstances, and confirming that where such circumstances are not present on the record, the prescribed minimum sentence should stand.

Nkabinde and Another v S (A205/2019) [2020] ZAGPJHC 312 (25 August 2020)