Brief Summary

Criminal Law — Rape — Conviction and appeal — Appellants convicted of rape and robbery; appeal against convictions upheld — Evidence of complainant deemed credible; onus on State to prove non-consensual intercourse beyond reasonable doubt — Third appellant's conviction for rape substituted with contravention of Sexual Offences Act; sentenced to six years’ imprisonment — All appellants released from custody immediately.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were a criminal appeal to the Supreme Court of Appeal against convictions arising from a prosecution for rape (and, at trial stage, also robbery) involving three co-accused.

The parties were Tshepo Bosielo (first appellant), Atang Bosielo (second appellant), and Thulaganyo Motlhamme (third appellant) as appellants, and the State as respondent.

The appellants were convicted in the regional court at Mogwase (North West) of rape and robbery, both read with section 51(2) of the Criminal Law Amendment Act 105 of 1997. Because the offences attracted a sentencing regime that required High Court involvement, the matter was referred to the North West High Court in terms of the then-applicable statutory procedure. In the High Court, the convictions on rape were treated as supportable, while the robbery count was not sustained against the first and second appellants (and was sustained only against the third appellant). The High Court imposed 18 years’ imprisonment on each appellant for rape, and an additional one year for robbery on the third appellant (concurrent with the 18 years). A further appeal by the first two appellants to a Full Court was dismissed. The first two appellants then obtained special leave to appeal to the Supreme Court of Appeal. The third appellant later obtained leave to appeal directly to the Supreme Court of Appeal and, after condonation for non-compliance with the rules, was joined so that all three appeals were heard together.

The general subject-matter of the dispute concerned the adequacy and reliability of the proof of rape, including whether the State had proved non-consensual sexual intercourse beyond reasonable doubt, and (in relation to the third appellant) whether the proved intercourse, even if consensual, nonetheless constituted a statutory sexual offence given the complainant’s age.

Material Facts

It was common cause that the complainant was 15 years old at the time of the incident, and that sexual intercourse occurred between the complainant and the third appellant. It was also common cause that the complainant and the appellants were together at a tavern at some point that evening, although the parties differed materially on how they came to be together and what occurred thereafter.

On the complainant’s version, on 15 January 2006 at approximately 20h00, she hitchhiked a lift with the appellants in a Citi Golf. She said she was seated in the back seat between the first and third appellants, and that the second appellant (the driver) asked whether she had money. She said she had R4, but the third appellant searched her and removed a R100 note from her jeans pocket. The group then went to a tavern where the second appellant purchased beer, and thereafter drove to bushes where, according to the complainant, the second appellant removed her jeans and panties while the third appellant held her down, and the three appellants took turns raping her. She alleged she could not scream because the first appellant covered her mouth.

The complainant testified that after the alleged rapes the appellants drove off with her, and when the third appellant moved to the front passenger seat she seized an opportunity to escape by jumping out of the moving vehicle while it was travelling slowly. She testified that she sustained no injuries when she jumped out. She went to her boyfriend Umphile Masilo’s home and reported that she had been raped, stayed there overnight, and the following morning the matter was reported to the police. She was examined at hospital. The doctor observed no abrasions, wounds, or injuries on her body, but recorded gynaecological findings including small lacerations, bloodstains, a torn hymen, and blood in the vagina with small tears, and concluded the injuries were consistent with forceful penetration, while not excluding that they could have been caused by a large penis. Despite the complainant’s account that two perpetrators did not use condoms, the doctor could not recall seeing semen.

Umphile testified that in the early hours he was woken by a knock, found the complainant at the door, and she reported that she had been raped by persons unknown to her; he then involved his mother the next morning, when the complainant repeated the report.

The appellants’ evidence presented a substantially different chronology. The first and second appellants denied offering the complainant a lift and denied that any rape occurred, and specifically denied that they drove a Citi Golf. They testified, in substance, that the complainant arrived at the tavern with the third appellant, socialised with them, and that thereafter the third appellant asked the first appellant for a room where he (the third appellant) and the complainant could sleep. The first appellant said he agreed, and while he remained in the kitchen, the third appellant and complainant went to a bedroom and later emerged and left; the third appellant returned alone later.

The third appellant testified that he met the complainant near a road junction, invited her to accompany him to a tavern, “proposed love” to her, and she accepted. They drank at the tavern, went to the first appellant’s home, and in a bedroom they had consensual sexual intercourse. He testified he then accompanied her back towards her home and they parted at the gate, after which he returned to the first appellant’s home for the night.

A defence witness, Warren Lefoka, testified that he knew the complainant from childhood, that she was at the tavern drinking with the appellants and others, and that when he left around 22h00 she was still at the tavern. In cross-examination he stated that he knew the complainant to be the third appellant’s girlfriend. The Supreme Court of Appeal later noted that this evidence was not considered by the trial court.

Legal Issues

The central legal questions were whether the State had proved beyond reasonable doubt that:

The complainant’s account of rape by all three appellants was credible and reliable notwithstanding that she was a single witness and a child, and that the accused persons’ contrary versions were not merely improbable but false beyond reasonable doubt.

In relation to the third appellant, the key issue was whether the sexual intercourse between him and the complainant was non-consensual (rape) as alleged by the complainant, or consensual as he claimed; and, if consensual intercourse was accepted or rape not proved, whether the facts nonetheless supported a conviction for contravening section 14(1)(a) of the Sexual Offences Act 23 of 1957, via substitution under section 268 of the Criminal Procedure Act 51 of 1977.

The dispute primarily concerned the application of established criminal proof principles to contested facts, including the correct approach to assessing competing versions, the treatment of credibility findings where material aspects were not properly examined, and the proper concept of corroboration where caution is required.

Court’s Reasoning

The Supreme Court of Appeal reiterated that in a criminal trial the State bears the onus and an accused is not required to “convince the court”. The correct approach is that if an accused person’s version is reasonably possibly true, the accused is entitled to an acquittal, even if that version appears improbable. A court may consider probabilities, but may not convict unless satisfied not only that the accused’s explanation is improbable but that it is false beyond reasonable doubt.

On the question of corroboration, the court addressed the trial court’s view that the complainant was corroborated by Umphile. It explained that corroboration relevant to the cautionary context is not merely confirmation that the complainant made a report or that certain surrounding circumstances are consistent with her account. Where corroboration is sought as a safeguard, it should be corroboration that implicates the accused on the issues in dispute. The central disputed question was whether the appellants had non-consensual sexual intercourse with the complainant. Umphile’s evidence established that the complainant reported rape to him, but it did not itself provide corroboration implicating the appellants in the commission of the alleged rapes.

The court held that the trial court’s credibility findings in favour of the complainant were not borne out by the evidence, and therefore the Supreme Court of Appeal was not constrained from interfering merely because the trial court had the advantage of seeing and hearing witnesses. The court identified multiple crucial aspects of the complainant’s version that required elucidation but were not adequately explored, creating shortcomings that undermined the reliability of her evidence.

In particular, the court considered the complainant’s timeline and found it problematic that, on her account, she met the appellants between approximately 20h00 and 20h30 yet arrived at Umphile’s home only at 02h00, without sufficient investigation into how long she was with the appellants, how long it took to reach Umphile’s home after escaping, and why she did not attempt to flee earlier when opportunities might have existed (including while the second appellant went into a tavern to purchase beers). The court regarded the absence of evidence on whether she was physically prevented from leaving the vehicle at that point as a significant gap.

The court stressed that the complainant, as a single witness in a case of this nature, was required to be satisfactory in all material respects. Given the number and nature of the shortcomings, the court held that the trial court ought to have entertained doubt as to the appellants’ guilt, especially when considering the countervailing evidence from the appellants and the witness Lefoka.

The Supreme Court of Appeal also criticised the trial court for effectively ignoring Lefoka’s evidence, emphasising that a proper conclusion must account for all the evidence and that evidence may not simply be disregarded. This failure affected the overall evaluation of whether the State’s case met the criminal standard of proof.

In addition, the court found certain aspects of the medical and condom-related evidence to be difficult to reconcile with the complainant’s version. On her version, the third appellant used a condom while the other two did not, yet there was no recollection of semen being observed. The court treated this, together with the overall evidential gaps, as contributing to doubt rather than confirming the State’s case beyond reasonable doubt. The court did not accept that there was anything inherently improbable in the appellants’ versions that justified rejecting them as false beyond reasonable doubt, and it found elements of coherence in their accounts, while identifying inconsistencies and unresolved issues in the complainant’s version.

The court concluded that the State did not establish the appellants’ guilt on the rape charges beyond reasonable doubt, so those convictions could not stand. However, given that sexual intercourse between the third appellant and the 15-year-old complainant was common cause, the court held that the third appellant was guilty of the statutory offence of contravening section 14(1)(a) of the Sexual Offences Act 23 of 1957, and it substituted the conviction accordingly under section 268 of the Criminal Procedure Act 51 of 1977.

On sentence, the court considered the objectives of punishment and the circumstances of the case, and imposed a substituted sentence it considered appropriate for the statutory offence.

Outcome and Relief

The Supreme Court of Appeal upheld the first and second appellants’ appeals against their rape convictions and set those convictions aside.

The court upheld the third appellant’s appeal against his rape conviction, set aside that conviction, and substituted it in terms of section 268 of the Criminal Procedure Act 51 of 1977 with a conviction for contravening section 14(1)(a) of the Sexual Offences Act 23 of 1957.

The sentence imposed by the High Court was set aside and replaced with six years’ imprisonment, antedated to be effective from 20 March 2007.

The court ordered that all three appellants be released from custody immediately. The judgment, as provided, did not record a separate costs order.

Cases Cited

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

S v Shackell 2001 (2) SACR 185 (SCA).

S v Mhlabathi & another 1968 (2) SA 48 (A).

R v Ncanana 1948 (4) SA 399 (AD).

R v Mpompotshe and Another 1958 (4) SA 471 (AD).

S v Avon Bottle Store (Pty) Ltd and Others 1963 (2) SA 389 (AD).

R v W 1949 (3) SA 772 (A).

S v Jackson 1998 (1) SACR 470 (SCA).

S v Van der Meyden 1999 (2) SA 79 (W).

S v Van Aswegen 2001 (2) SACR 97 (SCA).

R v Dhlumayo and Another 1948 (2) SA 677 (A).

S v Sauls 1981 (3) SA 172 (A).

S v Vilakazi 2009 (1) SACR 552 (SCA).

Legislation Cited

Criminal Law Amendment Act 105 of 1997, section 51(2) and section 51(3)(a), and section 52 (as it then applied).

Criminal Procedure Act 51 of 1977, section 268.

Sexual Offences Act 23 of 1957, section 14(1)(a).

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (noted as repealing section 14(1)(a) of Act 23 of 1957).

Criminal Law (Sentencing) Amendment Act 38 of 2007 (noted as repealing section 52 of Act 105 of 1997).

Rules of Court Cited

The judgment referred generally to non-compliance with the rules of the Supreme Court of Appeal and condonation being granted, but it did not identify any specific rule by number in the provided text.

Held

The Supreme Court of Appeal held that the State failed to prove beyond reasonable doubt that the complainant’s evidence established non-consensual sexual intercourse by any of the appellants, and that the trial court’s acceptance of the complainant’s version and rejection of the appellants’ versions was not sustainable given unresolved shortcomings in the State’s case and the failure to consider material defence evidence.

It held further that, notwithstanding the setting aside of the third appellant’s rape conviction, the undisputed fact that he had sexual intercourse with a complainant aged 15 meant that his conduct fell within the offence of contravening section 14(1)(a) of the Sexual Offences Act 23 of 1957, and the court substituted that conviction and imposed an appropriate sentence.

LEGAL PRINCIPLES

The judgment applied the principle that an accused person bears no burden to persuade the court of innocence; the correct standard is whether the accused’s version is reasonably possibly true, in which event an acquittal must follow, and a conviction is permissible only where the accused’s version is shown to be false beyond reasonable doubt.

It applied the approach that, while probabilities may be considered, the decisive inquiry is not whether the court subjectively believes the accused, but whether there exists a reasonable possibility that the accused’s account may be true when assessed against the totality of the evidence and the State’s onus.

It reaffirmed that where a complainant is a single witness, and particularly where the complainant is a child, the evidence must be approached with appropriate caution, and the testimony must be satisfactory in all material respects before it can sustain a conviction.

It applied the principle that if a court seeks corroboration as a safeguard in a cautionary context, the corroboration sought should be directed to implicating the accused on the issues in dispute, and not merely to confirming that the complainant made a report or that peripheral details are consistent.

It endorsed the requirement that a criminal court’s conclusion must account for all evidence led at trial, and that material evidence cannot be ignored in arriving at findings of guilt beyond reasonable doubt.

It confirmed that appellate interference with credibility findings is permissible where those findings are not supported by the record, particularly where material gaps and failures to probe crucial aspects undermine the reliability of the accepted version.

It applied the substitution mechanism permitting conviction of a competent verdict or related offence on appeal, here substituting a statutory sexual offence conviction under section 268 of the Criminal Procedure Act 51 of 1977 where the facts established intercourse with a minor but did not establish rape beyond reasonable doubt.

Bosielo and Others v S (71/13) [2013] ZASCA 133 (27 September 2013)