Brief Summary

Criminal Law — Rape — Appeal against conviction and sentence — Appellant convicted on two counts of rape and sentenced to life imprisonment — Appeal upheld due to misdirections by the magistrate regarding the credibility of the complainant's evidence and the treatment of the counts for sentencing purposes — Convictions and sentence set aside.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal to the KwaZulu-Natal Division of the High Court, Pietermaritzburg, against both conviction and sentence imposed in the court below. The appellant, Sabelo Wiseman Buthelezi, appealed against his conviction on two counts of rape and the resultant sentence of life imprisonment. The respondent was the State.

The trial commenced on 15 November 2015 and proceeded intermittently over a prolonged period. The appellant was convicted on 27 June 2018 and sentenced on 29 June 2018, with the two rape counts treated as one for purposes of sentence. The appeal was heard on 20 May 2022 and judgment was delivered on 10 June 2022.

The dispute concerned whether the trial court was correct in convicting the appellant on the complainant’s version, and whether the appellant’s denials (in respect of the 2008 incident) and his version of consensual intercourse (in respect of 2012) were properly rejected. Although the appeal also included the sentence of life imprisonment, the appeal court’s decision to set aside the convictions rendered it unnecessary to engage further with sentencing, beyond identifying specific misdirections that had occurred.

2. Material Facts

The complainant and the appellant were first cousins, with the appellant being seven years older than the complainant. Before the complainant’s mother died, the complainant (who lived in Johannesburg) and her siblings would visit the appellant’s family home in Osizweni during school holidays.

In relation to count 1, the complainant alleged that in December 2008, when she was 12 years old, she was raped once by the appellant while she and her sisters slept on the floor under a shared blanket in a room where the appellant slept on a bed. She alleged she awoke to the appellant removing her panties and penetrating her, that she resisted, and that he threatened her with reporting alleged misconduct with a neighbouring boy. She said she reported the incident only to one of the appellant’s sisters, who allegedly advised her to return to Johannesburg, and she made no other report. The complainant’s paternal aunt and father testified, but (as recorded by the magistrate) their evidence did not advance the State’s case; accordingly, the State’s case on count 1 depended exclusively on the complainant’s evidence.

In relation to count 2, after the complainant’s mother died in early 2012, the complainant went to live with the appellant’s mother (her aunt) in the same household. The complainant alleged that in about July or August 2012, the appellant raped her on three occasions in the household. On her version, she refused intercourse but the appellant insisted; she described threats that she would not be believed if she told his mother, and that he would report her as not studying and instead using WhatsApp. The complainant’s evidence portrayed these encounters as occurring without physical force, and she said she did not report them because she believed she would not be believed.

The appellant’s version on count 2 was that he had consensual sexual intercourse with the complainant on one occasion, and he gave a detailed account that she initiated intimacy and he “weakened” after her caresses.

It was common cause that the complainant became pregnant, and the child was born in May 2013. DNA evidence identifying the appellant as the father was admitted by consent. The complainant’s evidence was that she would not have reported what happened but for the pregnancy.

A disputed factual issue (relevant to credibility) concerned how the pregnancy was disclosed to the appellant’s mother. The complainant said she disclosed the pregnancy in September 2012, identified the appellant as the father, and that the appellant admitted paternity when called by his mother. The appellant’s mother denied this, stating instead that the complainant only announced her pregnancy in December 2012 when she was already leaving with her bags packed to go to Johannesburg to inform the father of the child. The appeal court noted that the appellant’s mother was not meaningfully confronted in cross-examination with the complainant’s version of the earlier disclosure.

The record also reflected that the fact of intercourse between the appellant and complainant was “publicly” known in the community (viewed as incest), and a cleansing ceremony took place, funded by the appellant’s family, involving provision of a cow and a goat.

3. Legal Issues

The central questions were whether the trial court correctly concluded, on the evidence, that the appellant was guilty of rape on both counts beyond reasonable doubt, and whether the trial court properly evaluated credibility and probabilities in rejecting the appellant’s version.

In relation to count 1, the key issue concerned the procedural and evidential consequence of the State’s failure to challenge the appellant’s denial under cross-examination, and whether the appellant was therefore entitled to an acquittal because his version was not shown to be false or not reasonably possibly true.

In relation to count 2, the core issue was the application of the criminal standard of proof to competing versions: whether the complainant’s version of repeated non-consensual intercourse was reliable beyond reasonable doubt, and whether the appellant’s version of a single consensual encounter was reasonably possibly true. This involved an evaluative assessment of credibility, probabilities, and the proper use (and limits) of DNA evidence (which proved paternity, not non-consent).

Although sentence was also under appeal, the appeal court’s dispositive reasoning lay in the convictions; nonetheless, the judgment identified that the trial court had made legal errors in sentencing, including the treatment of counts as one and an incorrect reliance on the complainant’s age and on minimum sentencing provisions.

Overall, the dispute turned largely on the application of law to fact, particularly the correct approach to unchallenged evidence, the burden on the State, and the threshold for rejecting an accused’s version as not reasonably possibly true.

4. Court’s Reasoning

The appeal court held that the magistrate’s approach contained material misdirections, requiring the appeal court to re-examine the factual issues without the benefit of having observed the witnesses.

On count 1, the appeal court found that the magistrate misdirected herself by stating that the appellant’s evidence was “silent” about the 2008 allegation. The record showed that the appellant did address count 1 in evidence-in-chief by denying the allegation and stating that, in that household, boys and girls did not sleep in the same room. The appeal court emphasised that the State did not challenge this denial at all in cross-examination, despite lengthy cross-examination on other matters. As the denial went unchallenged, the appellant was entitled to an acquittal on count 1 because the State did not take the elementary step of confronting the denial in order to show it was false and not reasonably possibly true. In applying this approach, the court stressed the particular context of a charge raised many years after the alleged event, where an innocent accused may be able to do little more than deny the allegation. The court relied on S v Manicum 1998 (2) SACR 400 for the proposition that failure to challenge an accused’s version may entitle the accused to an acquittal.

In addition, the appeal court criticised the magistrate’s reliance on the complainant’s alleged first report. The appeal court noted that the only evidence that such a report was made was the complainant’s own assertion, and that the witness to whom the report was allegedly made was not called. The court considered that, in these circumstances, the “first report” evidence could not meaningfully serve the purpose for which such evidence is ordinarily introduced (namely, to support consistency and credibility), because its probative value depended on the complainant’s credibility in the first place.

On count 2, the appeal court held that the magistrate’s credibility findings and treatment of the defence evidence were inadequately explained and, in key respects, incorrect. The magistrate had rejected the appellant’s mother’s evidence primarily on the basis that she was biased in favour of her son and allegedly unconcerned about the complainant and child. The appeal court accepted that familial bias may be natural, but held that it does not disqualify a witness and, in this case, the magistrate did not provide a proper basis for rejecting the appellant’s mother’s evidence on the pregnancy disclosure. The appeal court further regarded the complainant’s version of disclosure (in which the appellant’s mother allegedly sought to “cover up” by instructing her to leave) as improbable, because it implied an unrealistic expectation that paternity could be concealed indefinitely in circumstances where predictable family reactions would follow.

The appeal court found further misdirection in the magistrate’s treatment of the DNA evidence and the appellant’s reaction to it. The magistrate concluded that it was “clear” that the appellant would have denied intercourse had the DNA not linked him to paternity, and that his defence was created to explain the DNA. The appeal court described this conclusion as speculative, unsupported by the evidence, and indicative of a biased approach. The appeal court also held that the magistrate mischaracterised the appellant as disputing paternity; the record rather indicated that he struggled to accept the implications of DNA evidence (including due to advice he said he had received from a former attorney), but nonetheless accepted that for the purposes of the case he had to be regarded as the father.

The appeal court also noted the broader context that the community regarded the relationship as incest, and that this context could provide a reason for the complainant to avoid the suggestion of willingness. The magistrate was criticised for ignoring this consideration as part of the overall assessment.

After re-evaluating the record, the appeal court stated that it could not find with certainty that the complainant’s testimony on count 2 was false, but held that this was not sufficient for conviction. The decisive consideration was that there was likewise no basis on the record to find that the appellant’s version was false. The appeal court concluded that the appellant’s version on count 2 was reasonably possibly true, and therefore the State had not proved guilt beyond reasonable doubt.

Although the court did not need to decide sentence given the setting aside of convictions, it identified specific sentencing misdirections in the judgment. These included the lack of justification for treating two counts as one for sentence, the magistrate’s reliance on the complainant being under 16 in 2012 despite evidence that she was 16, and a misinterpretation of the minimum sentencing provisions in Part 1 of Schedule 2 to Act 105 of 1997 as they relate to multiple rapes on different occasions, with reference to S v Ngcobo 2016 JDR 0401 (KZP).

5. Outcome and Relief

The appeal against conviction on both rape counts and against the sentence of life imprisonment was upheld. The convictions on count 1 and count 2, and the sentence of life imprisonment, were set aside.

The judgment did not record any separate or additional order as to costs.

Cases Cited

S v Ngcobo 2016 JDR 0401 (KZP)

S v Manicum 1998 (2) SACR 400

Legislation Cited

Criminal Law Amendment Act 105 of 1997, Part 1 of Schedule 2 (heading “rape”), paragraph (a)(i)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the trial court committed material misdirections in its evaluation of the evidence on both counts. In respect of the 2008 allegation (count 1), the appellant’s denial was not challenged in cross-examination, and the State therefore failed to show that his version was not reasonably possibly true.

In respect of the 2012 allegations (count 2), the trial court’s credibility findings and rejection of the defence evidence were inadequately justified, and its reasoning regarding the DNA evidence was speculative and incorrect. On the record as a whole, the appellant’s version of consensual intercourse on one occasion was reasonably possibly true, and the State failed to prove rape beyond reasonable doubt.

Accordingly, the convictions and the sentence of life imprisonment were set aside.

LEGAL PRINCIPLES

A criminal conviction requires proof beyond reasonable doubt, and an accused must be acquitted if the defence version is reasonably possibly true, even if it is not accepted as probably true.

Where the prosecution fails to challenge an accused’s version under cross-examination on a material aspect, the accused’s unchallenged evidence may not properly be rejected, and the failure to confront the denial may be fatal to the State’s case, particularly where the denial is the principal response available to an accused faced with an allegation raised years after the event.

Evidence of a complainant’s “first report” ordinarily serves to support consistency and credibility; however, where the only evidence that a report was made comes from the complainant herself and the recipient of the report is not called, its probative value in supporting credibility is substantially undermined.

DNA evidence establishing paternity may corroborate that sexual intercourse occurred, but it does not, without more, determine the issue of consent; credibility and probabilities must still be assessed without speculative reasoning or mischaracterisation of the accused’s stance toward the evidence.

An appeal court is entitled, and may be obliged, to reconsider factual findings where the trial court has materially misdirected itself, even though the appeal court does not have the advantage of seeing and hearing the witnesses.

Buthelezi v S (AR361/2021) [2022] ZAKZPHC 24 (10 June 2022)