Summary of Judgment

1. Introduction

This matter concerned a criminal appeal to the High Court of South Africa, Gauteng Local Division, Johannesburg, against both conviction and sentence. The appellant, Azwindini Marunga, had been convicted in the Regional Court, Johannesburg, of attempted rape and sentenced to six years’ imprisonment.

The respondent was the State. The appeal was pursued with the leave of the trial court. The conviction and sentence were imposed on 8 February 2016, and the appeal was heard on 25 October 2018, with judgment delivered on 9 November 2018.

The general subject-matter of the dispute was whether the Regional Court correctly accepted the State’s version—primarily dependent on the evidence of the complainant—such that the State had proved guilt beyond reasonable doubt, and whether the trial court properly applied the approach to the evidence of a single witness, including the treatment of inconsistencies and the evaluation of the evidence relating to the immediate aftermath of the alleged incident.

2. Material Facts

The complainant was employed by a company contracted to provide 24-hour cleaning services at a mall. The appellant held a managerial position within that company and was the complainant’s manager. A third employee, Mr Patrick Biyela (“Patrick”), was employed in a supervisory position, and the complainant fell under his supervision.

On 10 July 2014, the complainant, the appellant, and Patrick were all on a night shift running from 23:00 to 08:00 the following day. During the early hours of the morning, Patrick instructed the complainant to fetch a vacuum cleaner from a downstairs office/store room and then to report to Entrance 2 of the mall to perform her cleaning duties. The evidence indicated that the appellant was in that office/store room at some point and that the room was normally locked, with the implication that it was unlocked at that time because someone (on the evidence, the appellant) was present.

The complainant’s version was that at about 04:00 she went down to the office/store room, found the appellant there, and that they were alone. She alleged that the appellant grabbed her, forced her against a wall, pulled down her leggings, touched her genitals, attempted to insert his finger into her vagina, and also fondled her breasts by placing his hand under her clothing. She stated that she resisted, managed to free herself, and exited the room. She further claimed the appellant had locked the door behind her, but that she unlocked it because the key remained in the door. She then left with the vacuum cleaner and went to her assigned post at Entrance 2.

Patrick’s evidence supported that he had indeed instructed the complainant to fetch the vacuum cleaner. He stated that because she was taking a long time, he went to look for her and met her ascending the stairs. He asked why she had taken so long, but she ignored him and walked off; he observed that she looked angry. The complainant, in contrast, did not testify that she met Patrick on the stairs. Her version was that Patrick later telephoned her while she was at Entrance 2 to check where she was, and she did not disclose the attempted rape during that call because she was upset. Patrick disputed that he had called her, reasoning that he would have had no need to call because he had already located her on the stairs.

The appellant’s version was a denial of presence at the office/store room at the relevant time. He testified that he had been in the office/store room about two hours earlier, but at the time of the alleged incident he was conducting his usual patrols of the mall to ensure cleaning duties were properly performed. He suggested the complainant’s motive for fabricating the allegation was related to her casual employment status, asserting that she knew he intended to terminate her casual employment and believed that if he were removed she would retain her position. It was common cause that the appellant was suspended due to the charges and that the complainant kept her position.

In considering the evidence, the High Court treated as material that the complainant was the single witness to the alleged attempted rape itself, while the events surrounding reporting and the immediate aftermath were addressed through other evidence, including Patrick’s testimony. The court also considered as material the deficiencies and inconsistencies in the complainant’s evidence regarding when and to whom she first reported the incident, as well as inconsistencies between the complainant and Patrick on whether they met on the stairs and whether a later phone call occurred. The complainant’s boyfriend, to whom she claimed she made the first report, was not called as a witness; the explanation tendered was that the relationship had ended and his whereabouts were unknown.

3. Legal Issues

The central legal question was whether, on the record, the State had proved the appellant’s guilt of attempted rape beyond reasonable doubt, taking account of the fact that the complainant was a single witness to the core alleged criminal conduct and that there were acknowledged inconsistencies relevant to the surrounding narrative and reporting.

Closely connected to that question was whether the Regional Court had properly applied the cautionary approach to single-witness evidence and whether it had properly confronted and reconciled inconsistencies both within the complainant’s account and between her evidence and that of Patrick. The appeal therefore concerned the application of legal standards to factual evaluation, particularly the assessment of credibility, reliability, and the reasonableness of competing versions.

A further issue was whether the trial court committed misdirections in its factual findings—most notably in attributing evidence to Patrick that was not given—and what effect such misdirections had on the safety of the conviction.

Because the appeal attacked both conviction and sentence, the fate of the sentence depended on whether the conviction could stand. The judgment ultimately turned on the conviction appeal; once the conviction was set aside, the sentence necessarily could not remain operative.

4. Court’s Reasoning

The High Court emphasised that the complainant was a single witness to the attempted rape. While single-witness evidence can sustain a conviction, the court noted that the trial court was required to evaluate such evidence with appropriate caution. The High Court found that the magistrate, although referring to the cautionary approach, did not properly engage with the material inconsistencies in the complainant’s evidence concerning the reporting of the incident.

The High Court regarded the reporting narrative and the immediate aftermath as significant, not as mere peripheral detail, but as a material phase in the overall narrative. In this case, the complainant’s account contained contradictions about when she first reported the incident to Patrick and about subsequent reporting to the police. In addition, there were stark inconsistencies between the State witnesses themselves, particularly between the complainant’s version (that she did not meet Patrick on the stairs and that he later called her) and Patrick’s version (that he met her on the stairs and did not call her). The court held that the magistrate failed to give these contradictions sufficient weight and failed to reconcile the “glaring inconsistencies” between the complainant’s and Patrick’s accounts.

The High Court further identified a specific and material misdirection by the magistrate: the magistrate found that Patrick had testified that the complainant was crying when he encountered her on the stairs, but the record contained no such evidence. The High Court treated this as important because a complainant’s immediate presentation after an alleged sexual assault could be relevant to whether the incident occurred, and the magistrate’s incorrect recollection or attribution of evidence risked improperly bolstering the State’s case.

Against this background, the High Court approached the appellant’s denial by applying the standard criminal law test: an accused’s version cannot be rejected merely because it is improbable; it must be rejected only if it is not reasonably possibly true, viewed against the State’s obligation to prove guilt beyond reasonable doubt. Given the inconsistencies identified and the misdirections in the trial court’s evaluation, the High Court held that the appellant’s version could not be disregarded as not reasonably possibly true. It followed, in the High Court’s assessment, that the State’s case did not meet the threshold of proof beyond reasonable doubt.

5. Outcome and Relief

The High Court upheld the appeal and set aside the conviction. The order recorded that the appeal succeeded and that the conviction was set aside. No separate costs order was recorded in the judgment. Although the order expressly addressed the conviction, the setting aside of the conviction entailed that the sentence imposed pursuant to that conviction could not stand.

Cases Cited

R v Mokoena 1932 OPD 79.

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

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that, in light of material inconsistencies in the State’s case—particularly regarding the complainant’s reporting of the incident and the conflict between her evidence and Patrick’s—and in light of a material misdirection by the magistrate concerning whether Patrick testified that the complainant was crying, the State had not proved the appellant’s guilt beyond reasonable doubt. The appellant’s version could not be rejected as not reasonably possibly true. The conviction for attempted rape was therefore set aside.

LEGAL PRINCIPLES

The judgment applied the principle that where a conviction depends on the evidence of a single witness, the evidence must be approached with appropriate caution and must be evaluated with careful attention to internal consistency and consistency with other material evidence, as reflected in the authorities cited.

The judgment applied the criminal standard of proof that the State must prove guilt beyond reasonable doubt, and that an accused person’s version must be accepted if it is reasonably possibly true, even if the court does not prefer it.

The judgment further applied the principle that material misdirections by a trial court—such as attributing evidence to a witness that was not given—may undermine the reliability of the factual findings and the safety of the conviction, particularly where such misdirections bear on important aspects of the narrative like the immediate aftermath of the alleged offence.