Brief Summary

Criminal Law — Rape and Kidnapping — Appeal against convictions and sentences — Appellant convicted of multiple counts of rape and kidnapping of two minors — Appellant contended that the trial court erred in finding no improbabilities in the State's case, failing to consider a possible mistake in identity, and rejecting his alibi — Court found that the evidence of the complainants, including identification and testimony corroborated by medical reports, was sufficient to uphold convictions — Appeal dismissed, convictions and sentences confirmed.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an appeal to the High Court of South Africa, Free State Division, Bloemfontein against the appellant’s convictions and sentences imposed by the Regional Court, Welkom on 17 May 2021. The appeal was pursued in terms of the appellant’s automatic right of appeal.

The parties were Pokame Johannes Metsing (the appellant/accused in the court a quo) and the State (the respondent). The appeal was heard by Mbhele AJP and Van Zyl J, with Van Zyl J delivering the judgment on 17 May 2022.

The appellant had been convicted on four counts, namely two counts of rape (counts 1 and 3) and two counts of kidnapping (counts 2 and 4). The general subject-matter of the dispute was whether the Regional Court correctly accepted the State’s evidence—particularly as to identity—and correctly rejected the appellant’s alibi, as well as whether the minimum sentence regime was properly applied to the rape convictions.

2. Material Facts

Two minor complainants, P S (aged 14) and D K (aged 17), were together in the early hours of 1 January 2020 in the Thabong area, Welkom. They decided at approximately 01h00 to walk to a nearby shop. Before they entered the yard of the shop, they were approached by a man who produced a knife, restrained them, and compelled them to go with him to Zoka Baloyi Stadium.

At the stadium, the assailant took the complainants to the toilets within the stadium premises and instructed them to undress and lie down. The evidence accepted by the court was that the assailant repeatedly moved between the two complainants, using force and threats. The first complainant, P S, testified that the assailant penetrated her vagina with his penis and that he did so more than once. The second complainant, D K, testified that the assailant forced her legs open, repeatedly attempted penetration, and that there was penetration accompanied by pain inside her vagina, even if not “to his liking”.

After the events in the stadium toilets, the assailant took D K’s clothes. When they exited, D K managed to escape and ran home at about 04h00, wearing only underwear and carrying her shoes. She reported what had occurred to her mother, and the police were later involved in searching for P S.

The assailant then carried P S on his back and took her to the vicinity of Tosa College, where events continued until daylight. A dog’s presence interfered with further sexual assault at that location. The assailant fell asleep near her; when daylight came he instructed her to dress and indicated he would accompany her home, later giving her R20 from money earlier handed to him. P S returned home at approximately 07h00.

Both complainants were taken for medical examination, and J88 medical reports were admitted into evidence. The J88 for P S recorded genital findings including fresh tears and concluded that the injuries were consistent with a history of forceful penetration. The J88 for D K did not reflect genital injuries, but the report recorded that the absence of injuries did not exclude the possibility of sexual penetration.

The principal disputed factual issue at trial and on appeal was the identity of the perpetrator. The defence position, as put to the first complainant, was that the rapes occurred but that the appellant was not the perpetrator. The appellant denied involvement and asserted an alibi, claiming he was in the park near Liberty Centre/town hall in Welkom for New Year’s celebrations and returned home around 07h00/08h00 on 1 January 2020.

The first complainant’s identification evidence, accepted by the courts, was that although it was dark earlier, she was able to see the perpetrator clearly later when it was daylight near Tosa College and while he slept, and she later saw the perpetrator again months afterwards and ultimately pointed him out to the investigating officer. She identified the appellant in court in a procedure where other male persons were placed in the dock with him. She also associated the perpetrator with a swollen/marked left eye and with clothing including black-and-white Superstar sneakers. The investigating officer testified that when the appellant was arrested, the first complainant reacted with shock and tears and confirmed he was the rapist, also remarking on the shoes.

The appellant’s alibi was supported by a defence witness who claimed to have met the appellant near the town hall at around 07h00 and again around 12h00 on 1 January 2020, remembering him by his clothing. The trial record reflected material divergences between the appellant’s account and this witness’s account concerning when and how often they met, and the appellant only raised the existence of this witness at a late stage during cross-examination.

3. Legal Issues

The central legal questions were whether the State proved beyond reasonable doubt that the appellant was the perpetrator of the rapes and kidnappings, and whether the trial court correctly approached the evidence given that identification rested materially on the evidence of a single witness who was also a child witness regarding identity.

The appeal therefore engaged questions of fact (identity, reliability, contradictions, alibi), as well as the application of legal principles to fact (the cautionary rules applicable to identification and single/child witnesses; treatment of alleged contradictions with prior statements; evaluation of an alibi within the totality of evidence). A further issue was the legal sufficiency of proof of penetration for the rape charges, based on the complainants’ evidence and medical evidence.

In relation to sentence, the dispute concerned the application of the statutory minimum sentence regime under the Criminal Law Amendment Act 105 of 1997 and whether the trial court erred in finding that there were no substantial and compelling circumstances justifying a lesser sentence than life imprisonment on the rape counts.

4. Court’s Reasoning

The High Court evaluated the appellant’s grounds of appeal against the framework of the evidence and the applicable cautionary principles. It noted that the trial court was alive to the fact that the first complainant was a single witness on identity and a child witness, and that caution was therefore required. The appeal court endorsed the trial court’s assessment that the complainant was not a very young child, understood questions, gave coherent answers, and made a satisfactory impression in material respects.

On the identification question, the High Court accepted that honesty alone is insufficient and that the reliability of identification must be scrutinised with care. It agreed with the trial court that the circumstances at Tosa College materially strengthened reliability: the first complainant spent an extended period with the perpetrator (including close proximity while he slept), and by then it was daylight, enabling observation of his face. The court treated these circumstances as supporting a conclusion that the identification evidence was reliable despite earlier darkness at the shop and stadium.

The High Court further held that aspects of the evidence provided corroboration for the identification. It relied on the evidence concerning the appellant’s left eye: the complainant described swelling on the night of the incident and testified she could still see it in court; the appellant conceded he had longstanding eye problems, and the court regarded it as probable that swelling could occur intermittently. In addition, the evidence that both complainants observed black-and-white Superstar sneakers, and that the investigating officer reported the first complainant’s remark about the shoes at arrest, was treated as further support. The court also noted that the appellant’s denial of owning such sneakers was not put to the relevant State witnesses.

In dealing with alleged contradictions between the first complainant’s viva voce evidence and her police statement, the High Court focused on the foundational requirement that, before a prior statement is used for impeachment, it must be established that the statement was properly taken and adopted. The complainant testified the statement was not read back to her, and although the statement had been provisionally accepted and cross-examination provisionally permitted on the basis that the statement-taker would be called, the defence ultimately did not call that witness. The High Court therefore held that the statement and the cross-examination based upon it had to be ignored.

The High Court rejected submissions about improbabilities in the State case (such as the assailant controlling both complainants alone, the absence of intervention by others, and the failure to escape earlier) on two principal bases. First, these improbabilities were not put to the complainants in cross-examination, and the defence case as presented to the first complainant accepted that rape occurred, disputing only identity. Second, in any event, the appeal court did not regard the State version as inherently improbable in the circumstances described.

On the alibi, the High Court applied the principle that an accused bears no onus to prove an alibi, and that the alibi must be assessed within the totality of the evidence. It upheld the trial court’s rejection of the alibi because of material contradictions between the appellant’s evidence and that of his alleged alibi witness, particularly regarding the timing (the appellant referring to night-time on 31 December 2019, while the witness referred to daytime on 1 January 2020) and the number of encounters. The court also treated the late emergence of the alibi witness and the appellant’s explanation for only later recalling this witness as suspicious and improbable. Weighing all evidence holistically, the court concluded the appellant’s version could not be reasonably possibly true.

On penetration, the High Court emphasised that even if certain aspects of the events were not disputed in cross-examination, the State still had to prove each element of the offences beyond reasonable doubt. For P S, the court held that penetration occurred, supported both by her evidence and by the J88 findings of fresh tears and an opinion consistent with forceful penetration. For D K, the court relied on her answers—particularly in response to the trial court’s clarificatory questions—that there was penetration even if incomplete, and held that the absence of genital injuries on the J88 did not exclude penetration, consistent with the report’s conclusion.

Regarding sentence, the High Court reiterated the limited basis on which an appellate court interferes with sentence, given the sentencing discretion of the trial court. It accepted that life imprisonment was the prescribed minimum sentence for counts 1 and 3 under section 51(1) of the Criminal Law Amendment Act 105 of 1997 and that deviation required substantial and compelling circumstances. It held that the trial court considered the appellant’s personal circumstances (including age, dependants, limited education, self-employment income, pre-trial incarceration, and first-offender status), but also weighed aggravating factors, including the complainants’ youth, the use of a knife, repeated rapes, the victim impact evidence, the prevalence of child sexual abuse, and the absence of remorse. The High Court found no misdirection in the trial court’s conclusion that there were no substantial and compelling circumstances and that the prescribed sentences were just.

5. Outcome and Relief

The High Court dismissed the appeal against both convictions and sentences. The convictions on all four counts (rape and kidnapping) and the sentences imposed by the Regional Court (life imprisonment on counts 1 and 3, and three years’ imprisonment on counts 2 and 4) were left undisturbed.

The order made was that the appeal against convictions and sentences was dismissed. No separate costs order was made in the judgment.

Cases Cited

S v Tshabalala 1999 (1) SACR 163 (T)

S v Govender 2006 (1) SACR 322 (E)

S v Mthethwa 1972 (3) SA 768 (A)

R v Dube 1915 AD 557

R v Biya 1952 (4) SA 514 (A)

R v Hlongwane 1959 (3) SA 337 (A)

S v Chabalala 2003 (1) SACR 134 (SCA)

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

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

Legislation Cited

Criminal Procedure Act 51 of 1977, section 186

Criminal Law Amendment Act 105 of 1997, section 51(1)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the trial court correctly applied the cautionary rules applicable to a single witness, a child witness, and identification evidence, and that the first complainant’s identification of the appellant was reliable in the circumstances, particularly given daylight observation and corroborative features (including the eye condition and footwear evidence).

It held further that the alleged contradictions based on the first complainant’s police statement could not be relied upon because the proper foundation for using the statement was not established and the statement-taker was not called, with the result that the statement and related cross-examination were to be ignored.

The High Court held that the appellant’s alibi was not reasonably possibly true when assessed against the totality of the evidence, due to material contradictions between the appellant and his witness and the suspiciously late emergence of the alibi witness.

It also held that the State proved penetration in respect of both rape counts on the evidence, supported by the J88 findings (and, in the second complainant’s case, the principle that the absence of genital injury does not exclude penetration). The convictions were therefore confirmed, and the prescribed minimum sentences of life imprisonment on the rape counts were upheld because no substantial and compelling circumstances were shown.

LEGAL PRINCIPLES

The judgment applied the principle that where a conviction depends on identification evidence, a court must exercise caution and evaluate not only the honesty of the identifying witness but also the reliability of the identification, with careful attention to the conditions under which observation occurred.

It applied the cautionary approach to the evidence of a single witness and a child witness, recognising that while such evidence is not inadmissible or inherently unreliable, it must be evaluated with appropriate caution, and the court must be satisfied that it is clear and satisfactory in material respects.

It reaffirmed the principle governing the use of a witness’s prior police statement in cross-examination: before a statement can properly be used to impeach credibility, it must be shown that it was properly recorded and adopted by the witness, including that it was read back (or otherwise confirmed) and that the witness acknowledged its correctness.

It applied the principle that an accused bears no onus to prove an alibi, but that an alibi must be assessed within the totality of the evidence; if the alibi is not reasonably possibly true when so assessed, it may be rejected.

On sentence, the judgment applied the minimum sentence framework under the Criminal Law Amendment Act 105 of 1997, holding that where life imprisonment is prescribed, a lesser sentence may be imposed only if substantial and compelling circumstances are present, and that personal circumstances must be weighed against aggravating features, including the seriousness of the offence and its impact on victims and society.

Metsing v S (A76/2021) [2022] ZAFSHC 99 (17 May 2022)