Brief Summary

Criminal Law — Rape — Single witness evidence — Complainant's testimony found to be fabricated — Accused's version reasonably possibly true — Appeal against conviction and sentence upheld. The appellant was convicted of rape based on the testimony of a single witness, the complainant, who alleged that the appellant had forced her to have sexual intercourse. The appellant admitted to sexual intercourse but claimed it was consensual. The layout of the appellant's home and inconsistencies in the complainant's evidence raised doubts about her credibility. The High Court dismissed the appellant's appeal, leading to a further appeal to the Supreme Court of Appeal. The legal issue was whether the evidence of the complainant was credible enough to sustain a conviction for rape, given the appellant's version and the circumstances surrounding the incident. The Supreme Court of Appeal upheld the appeal, finding that the complainant's evidence was unreliable and that the appellant's version was reasonably possibly true, thereby setting aside the conviction and sentence.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal in the Supreme Court of Appeal against a conviction and sentence for rape. The appellant was J G van der Watt, and the respondent was the State.

The appellant had been convicted on 21 July 2003 in the regional court, Pretoria, of raping the complainant, Mary Sesane, who was employed as his domestic worker. He was sentenced on 30 September 2003 to 10 years’ imprisonment. He admitted that sexual intercourse took place, but pleaded consent.

An appeal to the Pretoria High Court (North Gauteng High Court), sitting as a court of appeal, was dismissed on 26 September 2005. The present appeal to the Supreme Court of Appeal proceeded with leave of that court and was directed at both conviction and sentence.

The general subject-matter of the dispute was whether the State had proved beyond reasonable doubt that the sexual intercourse was without consent, in circumstances where the complainant was a single witness on the alleged rape and where the accused’s version was that the intercourse occurred pursuant to an agreement and was consensual.

2. Material Facts

The material facts included the physical layout of the premises, which was treated as relevant to assessing the probabilities and credibility of both versions. The appellant’s evidence (confirmed by his wife) was that the complainant’s room was situated in the yard, attached to a flat occupied by the appellant’s son, with the complainant’s room being approximately two metres from the son’s sleeping area and about ten metres from the nearest room in the main house where the appellant’s wife and children were present. This description of the lay-out was largely unchallenged, save for a dispute about whether there was a garage (the complainant said there was; the appellant and his wife said it had been converted into a flat occupied by their eldest son).

It was common cause that the appellant and the complainant had sexual intercourse during the night in question. The dispute centred on consent, and the complainant was the only witness to the alleged coercion and threats.

The complainant’s version was that in the early hours of 30 January 2000 at approximately 01h40, the appellant came to her room, entered while carrying a small firearm wrapped in a T-shirt and a 2-litre Coke, instructed her to keep quiet and obey him, placed the Coke and firearm on a table, locked the door, demanded intercourse, and proceeded to have intercourse with her after putting on a condom. She said the intercourse was interrupted by a noise (described as coming from the “garage door”), after which the appellant went outside to check, and she then locked the door and did not re-open when he returned and called her.

The complainant further testified that later that morning the appellant returned, asked her to open the door (which she did), told her not to tell anyone what had happened, asked her to do kitchen chores, and later borrowed R20 from her. After bathing, she went to seek assistance in locating a police station and then laid a charge of rape. A J88 medico-legal report was admitted by agreement. The J88 recorded a single genital injury described as an abrasion on the labia minora and included a conclusion that the injury was “compatible with forcible penetration of vagina with large object like penis”, with no other substantial findings recorded.

The appellant’s version was that he went to the complainant’s room late on the evening of 29 September 2000 (as recorded in the judgment), spoke with her as was not unusual, propositioned her, offered money, and that she agreed provided they used condoms. He said he went to fetch condoms from the house and, at her request, brought cooldrink. He testified that intercourse occurred and was “wild” (“rof”), and that it ended before ejaculation. He left behind his slippers and the condom.

As to events the next morning, it was not in dispute that the complainant opened the door for the appellant when he came to her room, and that she lent him R20 willingly. A further factual dispute arose about an additional R50 allegedly paid to the complainant when she later returned with police officers. The appellant said the R50 was for the sexual intercourse (and R20 was repayment of the loan); the complainant denied any such agreement and denied accepting the R50. A document prepared by the appellant’s wife for the complainant to sign recorded amounts paid, including a reference to “R50 wat hy haar ekstra gee” and “R20 wat hy haar geleen het”, without stating that the R50 was for sex.

The complainant’s evidence also included claims that (i) the appellant referred to noise from a garage, and (ii) the appellant told her his wife was drunk. The appellant denied making the latter statement, and the appellant’s wife testified she was a teetotaler, which was not challenged in cross-examination.

3. Legal Issues

The central legal question was whether the State had proved beyond reasonable doubt that the complainant did not consent to sexual intercourse and that the appellant was guilty of rape, notwithstanding that sexual intercourse was admitted.

The dispute primarily concerned the application of the criminal standard of proof to contested factual versions, including credibility assessments of a single witness and whether the accused’s version could be rejected as not reasonably possibly true. It also concerned whether the lower courts had committed misdirections in their treatment of the evidence, including medical evidence and probability reasoning, and whether those misdirections vitiated the conviction.

A related issue was the proper approach to purported corroboration where the fact of intercourse was common cause, and how to evaluate medical evidence that did not uniquely support forcible intercourse as opposed to consensual but vigorous intercourse.

4. Court’s Reasoning

The Supreme Court of Appeal approached the matter on the basis that, in criminal proceedings, the State must prove guilt beyond a reasonable doubt, and that a trial court must accept an accused’s version unless it is shown to be not reasonably possibly true. Within that framework, the Court evaluated whether the lower courts were justified in accepting the complainant’s evidence and rejecting the appellant’s consent version.

A substantial part of the reasoning concerned misdirections by the trial court and the court below. The magistrate had inaccurately summarised the J88 by referring to “swelling” and “abrasions”, whereas the J88 referred to a single abrasion and did not mention swelling. The Supreme Court of Appeal held that the magistrate’s conclusion that the medical evidence supported the complainant’s version was flawed, particularly because the medical conclusion did not isolate forcible penetration as the only explanation. Given that intercourse was common cause, the Court considered that the medical evidence did not, on its face, resolve the question of consent. The Court further reasoned that the appellant’s description of “wild” intercourse provided a plausible explanation for the single abrasion, making such a finding not unexpected on his version.

The Court regarded the complainant’s narrative as containing significant improbabilities, particularly when assessed against the undisputed evidence about the layout of the premises and the proximity of the appellant’s family members. It considered it improbable that the appellant would, on the complainant’s version, take the substantial risk of raping her in a room situated only metres from his son and within close proximity to his wife and children, and then behave in the manner described (including leaving and returning, allegedly calling her name loudly after an interruption that he supposedly feared might involve his son). On the probabilities, the Court considered the appellant’s version more coherent with the setting, because consensual intercourse would not carry the same risk that the complainant might respond in a way likely to alert household members.

A further and central credibility concern was the complainant’s account of the firearm. The Court examined the contradictions in her evidence about whether and how she was threatened with the firearm, including the manner in which her account shifted under cross-examination and did not align with what she had said previously. From these contradictions, the Court inferred that the complainant had likely fabricated aspects of her evidence in an attempt to strengthen the assertion of coercion. The Court found that the court a quo misdirected itself by concluding that the complainant did not contradict herself regarding the firearm.

In contrast, the appellant’s evidence about firearms (that he owned several, kept them in a safe near the bed, and that opening the safe made a loud noise) was assessed together with his wife’s corroboration that she was a light sleeper and would have heard the safe being opened. The Court criticised the approach of the court a quo, which rejected the denial of taking a firearm on the basis that he could have removed it earlier; the Supreme Court of Appeal indicated that the correct inquiry was whether the appellant’s version could be reasonably possibly true, particularly given the deficiencies in the complainant’s evidence on the point.

The Court also relied on the complainant’s conduct the following morning as inconsistent with her version of a violent, firearm-assisted rape. It considered there was no persuasive explanation, on her account, for why she continued with ordinary tasks and, critically, why she would lend money (R20) to someone who had allegedly raped her hours earlier while armed. By contrast, the Court found the appellant’s version rendered his conduct (returning to the complainant, asking after her wellbeing, and requesting a loan) more intelligible.

On the disputed R50 payment and the acknowledgment document, the Court held that little turned on the omission in the document to specify that the R50 was for sex. It emphasised that the purpose of the document was to record salary and outstanding amounts paid, and it treated the criticism that the R50 should have been described differently as misplaced. It also reasoned that if the appellant’s version (that R50 was for sex) were rejected, it would be difficult to explain why he would give her R50 “extra” for no reason shortly after a rape complaint had been laid.

The Court addressed the appellant’s suggested motive for false implication, namely a prior incident involving the complainant being threatened with dismissal. It considered that the complainant had initially denied any problems but later conceded the incident, undermining her credibility. The Court criticised the court below’s treatment of motive as overly dismissive, noting that an accused may speculate about why he has been falsely implicated and that the existence of another or more probable reason does not necessarily detract from the accused’s truthfulness in recounting the incident.

Two additional aspects of fabrication were identified. First, the complainant’s reliance on a garage and “garage door” noise as the reason intercourse was interrupted was treated as a credibility issue because the appellant’s evidence (supported by his wife and son) was that there was no garage at the time. The Court rejected the court a quo’s view that this was immaterial, holding that the false reference affected the credibility of the complainant’s explanation for an interruption. Second, the complainant’s claim that the appellant said his wife was drunk was contrasted with the wife’s uncontested evidence that she was a teetotaler; the Court treated the point as another indication of unreliability.

The Court further found that the magistrate’s stated view that the appellant’s evidence was “riddled with contradictions” was unsupported, and that the supposed contradiction about injuries was not a contradiction but consistent with his earlier description of vigorous intercourse. The Court also rejected criticisms made by the court a quo based on factual error, including an incorrect assertion that the appellant had testified to watching pornographic movies with the complainant; the Court noted that such reasoning also involved an impermissible generalisation, in line with previous appellate criticism of such approaches.

In applying these principles, the Court concluded that, given the numerous improbabilities, contradictions, and indications of fabrication in the complainant’s evidence, the lower courts had misdirected themselves in accepting her version and rejecting the appellant’s. On the accepted criminal standard, there was no basis to reject the appellant’s version as not reasonably possibly true.

5. Outcome and Relief

The Supreme Court of Appeal upheld the appeal.

It set aside the order of the High Court and substituted it with an order upholding the appeal in that court and setting aside the appellant’s conviction and sentence.

No separate or specific costs order appears from the reported order in the judgment.

Cases Cited

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

R v Mthembu 1956 (4) SA 334 (T).

S v Kubeka 1982 (1) SA 534 (W).

S v Ramochela 1997 (2) SACR 494 (O).

S v Gentle 2005 (1) SACR 420 (SCA).

S v Scott-Crossley 2008 (1) SACR 223 (SCA).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the complainant’s evidence, as that of a single witness, contained significant improbabilities, contradictions, and fabrications, including in relation to the alleged firearm threat and the “garage” interruption, and that the lower courts had misdirected themselves in their assessment of credibility and the medical evidence.

It held that the medical evidence (J88) did not provide reliable support for a finding of non-consensual intercourse in circumstances where intercourse was common cause, and that the appellant’s version was consistent with the clinical findings.

It held that, on the correct criminal standard, the appellant’s version that the sexual intercourse was consensual was reasonably possibly true and could not be rejected beyond reasonable doubt. The conviction and sentence were accordingly set aside.

LEGAL PRINCIPLES

The judgment applied the principle that, in criminal proceedings, the State bears the onus to prove guilt beyond reasonable doubt, and that where an accused’s version is reasonably possibly true, it must be accepted and an acquittal must follow.

In evaluating single-witness evidence and alleged corroboration, the judgment applied the principle that evidence corroborates a complainant only if it supports the complainant on the issues in dispute and renders the accused’s version less probable; where sexual intercourse is common cause, proof of intercourse does not corroborate an allegation of rape.

The judgment applied the principle that credibility findings may be undermined by material misdirections, including inaccurate treatment of medical evidence, reliance on improbable narrative features, and factual errors or generalisations in evaluating witness testimony, and that such misdirections may justify appellate interference with the conviction.

Van der Watt v S (488/09) [2010] ZASCA 22; [2010] 3 All SA 434 (SCA) (23 March 2010)