Motloung v S (A45/2022) [2022] ZAFSHC 204 (22 August 2022)

80 Reportability

Criminal Law

Brief Summary

Criminal Law — Rape — Appeal against conviction and sentence — Appellant convicted of two counts of rape and sentenced to life imprisonment — Appellant contended that the state failed to prove its case beyond a reasonable doubt and that the complainant's testimony was not credible — State conceded during oral argument that the conviction was flawed — Evidence indicated that the complainant had consensual sexual relations with the appellant and communicated her whereabouts without coercion — Appeal upheld, conviction and sentence set aside.

Comprehensive Summary

Summary of Judgment

1. Introduction

These were criminal appeal proceedings in the Free State Division of the High Court, Bloemfontein, concerning a conviction on two counts of rape and the consequent sentence of life imprisonment.

The appellant, Thabiso Martiens Motloung, was the accused in the court a quo. The respondent was the State.

The matter came before the High Court after the appellant had successfully petitioned for leave to appeal. The appeal was directed against both conviction and sentence. Although the State’s written argument initially supported the conviction and sentence, the State conceded during oral argument that it could no longer support the conviction because the prosecution had not proved guilt beyond reasonable doubt.

The dispute turned on the general subject-matter typical of rape trials, namely whether the sexual intercourse was consensual or whether it occurred without consent through threats and coercion, and whether the trial court properly evaluated credibility and the standard of proof in a criminal case.

2. Material Facts

It was common cause that, on the evening of 9 January 2016, the complainant and her friend, Dieketseng, were together in the area when the appellant appeared. It was also common cause that the complainant thereafter went with the appellant to his shack situated in his parents’ yard, where the complainant and the appellant had sexual intercourse more than once during the night.

It was further common cause that the complainant remained at the appellant’s shack until the following morning, when members of her family arrived looking for her. The appellant’s mother found the complainant in the appellant’s shack and ordered her to leave. After leaving, the complainant went to a relative’s home (Nkunkunyane’s house) where she first disclosed that she had been raped. The appellant only became aware of the rape allegation approximately two weeks later.

The central disputed facts concerned how the complainant came to accompany the appellant, whether she was threatened, and whether she consented. The complainant’s version was that the appellant threatened her with a knife (and later a panga was said to be present), compelled her to go with him to his shack, and then had intercourse with her against her will. She also testified that she used the appellant’s phone to contact Dieketseng under coercion, and that she was instructed to give a false account of her whereabouts.

Dieketseng’s evidence differed materially from the complainant’s account in several respects. Dieketseng described an initial encounter where the complainant approached the appellant while Dieketseng continued walking, and later that the complainant and the appellant walked away together and entered a passage, while Dieketseng and another companion proceeded elsewhere. Dieketseng stated that the complainant walked normally as the appellant held her hand, and that nothing at that stage caused suspicion. Dieketseng also testified that the complainant phoned her many times later that evening, giving varying accounts of where she was (including that she was at Medupi’s place), and urging Dieketseng to look for her.

The evidence also established, as a feature relied upon in the appeal reasoning, that the complainant had access to the appellant’s cell phone for multiple calls and messages during the night. The complainant did not seek assistance from the appellant’s mother when the mother confronted her the next morning, and the family’s efforts that night did not include mobilising broader community assistance despite concern about the complainant’s safety.

Against this factual background, the decisive factual question for the court was whether the complainant’s conduct and the surrounding circumstances were consistent with non-consensual intercourse proved beyond reasonable doubt, or whether the appellant’s version that the intercourse was consensual remained reasonably possibly true.

3. Legal Issues

The appeal required determination of whether the State had proved the appellant’s guilt beyond reasonable doubt on the rape counts, in circumstances where the trial court treated the complainant as credible and rejected the appellant’s version.

The central legal questions were, first, whether the trial court correctly applied the criminal standard of proof when assessing the evidence as a whole, including credibility and probabilities. Second, whether the court a quo misdirected itself by rejecting the appellant’s version as false without properly asking whether it was reasonably possibly true.

The dispute primarily concerned the application of law to fact, namely the correct approach to evaluating the totality of evidence in a criminal trial (including credibility findings and probabilities) and the proper articulation of the standard for rejecting an accused’s version. It also engaged factual evaluation, particularly concerning contradictions and gaps bearing on consent and coercion.

4. Court’s Reasoning

The appeal court emphasised established principles governing criminal adjudication. It restated that there is no obligation on an accused to convince the court of the truth of his version where the State bears the onus. An accused is entitled to an acquittal if his version is reasonably possibly true, even if it appears improbable. A conviction is permissible only if the court is satisfied not merely that the accused’s explanation is improbable, but that it is false beyond reasonable doubt.

In addition, the court endorsed the approach that the proper evaluation in a criminal case is based on the totality of the evidence, requiring consideration of the nature of the State case and the defence case, the probabilities emerging from the whole, and the credibility of all witnesses, ending with the decisive question whether guilt has been proved beyond reasonable doubt.

Applying those principles to the record, the appeal court identified what it described as “yawning gaps” in the State’s case and held that the trial court’s approach to rejecting the appellant’s version constituted a misdirection. The appeal court drew attention to the inconsistencies between the complainant’s narrative of being forcefully taken and Dieketseng’s account of the complainant’s movements and apparent normality when leaving with the appellant. It also contrasted the complainant’s claim that she contacted Dieketseng under duress with Dieketseng’s evidence that the complainant made repeated calls later with varying accounts of her location.

The appeal court regarded it as significant, on the evidence, that the complainant had access to the appellant’s phone and made several calls yet did not seek assistance in a manner consistent with immediate rescue, and that she did not report rape to the appellant’s mother when confronted the next morning. The court also noted the apparent cordiality in the complainant’s communication with the appellant when leaving the shack, as well as the fact that, despite knowing her relatives were searching for her at the appellant’s home, she did not go directly to them when she left but instead went to another relative.

In light of these considerations, the appeal court concluded that the trial court failed to properly engage the decisive question of whether the appellant’s version could be reasonably possibly true, and it held that the State had not discharged the burden of proof beyond reasonable doubt. Because the conviction could not stand, the sentence necessarily fell away.

5. Outcome and Relief

The appeal court upheld the appeal in full. It set aside both the convictions and the sentence of life imprisonment.

No separate order as to costs was recorded in the judgment.

Cases Cited

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

State v Mattioda 1973 (1) PH H 24 (N) 49.

Legislation Cited

No legislation was expressly cited in the judgment.

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The High Court held that the court a quo misdirected itself in its treatment of the defence case by rejecting the appellant’s version as false without properly considering whether it was reasonably possibly true, particularly given material contradictions and gaps in the State’s evidence on consent.

It held further that, on the totality of the evidence, the State failed to prove guilt beyond reasonable doubt. The appellant was therefore entitled to an acquittal.

Accordingly, the appeal succeeded, and both conviction and sentence were set aside.

LEGAL PRINCIPLES

The judgment applied the principle that in a criminal trial the State bears the onus to prove guilt beyond reasonable doubt, and an accused person bears no duty to prove innocence. An accused’s version must be accepted if it is reasonably possibly true, even if it is improbable, and it may be rejected only if it is shown to be false beyond reasonable doubt.

The judgment applied the principle that the proper approach to adjudication in a criminal matter is to assess the totality of the evidence, including the nature of the State and defence cases, credibility of all witnesses, and the probabilities, and only thereafter to decide whether the State has discharged its burden.

The judgment further applied the principle that where a trial court fails to properly apply the “reasonably possibly true” standard to an accused’s version, particularly in the presence of material gaps or contradictions in the State’s case, that failure constitutes a misdirection justifying appellate interference with the conviction.