Summary of Judgment

1. Introduction

The matter concerned a criminal appeal against both conviction and sentence. The appellant, John Sello Malebo, appealed against his conviction in the regional court, Bloemfontein, on a charge of rape, and the consequent sentence of 10 years’ imprisonment. The respondent was the State.

The appeal served before the High Court of South Africa, Free State Division, Bloemfontein, constituted by Mathebula J and Molitsoane AJ. The appeal proceeded with leave, granted after the appellant successfully petitioned the Judge President. The appeal was heard on 20 November 2017 and judgment was delivered on 11 January 2018.

The general subject-matter of the dispute was whether the State had proved rape beyond reasonable doubt in circumstances where the appellant admitted sexual intercourse with the complainant, but contended that it occurred with consent, and where the State’s case relied substantially on the proposition that the complainant’s intoxication rendered her incapable of giving valid consent.

2. Material Facts

The complainant and her friend, identified as WM, attended a funeral and thereafter went with other friends to a tavern where they consumed alcohol. The complainant’s evidence was that, upon leaving the tavern with WM, she was drunk. WM confirmed in evidence that both she and the complainant were intoxicated.

They then boarded a taxi driven by the appellant. WM sat in the front and the complainant sat at the back. The complainant testified that, after boarding, she fell asleep. She further stated that she later woke up and noticed that her skirt was lifted, her pantyhose and underwear were lowered, and that she felt wet in her private parts. She testified that she did not consent to sexual intercourse with the appellant.

It was common cause that the appellant and complainant had sexual intercourse, because the appellant acknowledged this. An initial contention advanced on appeal—namely that penetration had not been proved—was abandoned because the appellant’s admission of sexual intercourse was made in terms of section 220 of the Criminal Procedure Act 51 of 1977, rendering the fact of intercourse effectively admitted.

The principal factual dispute concerned whether the complainant was so intoxicated that she was incapable of consenting, and whether the appellant’s version of consensual intercourse was reasonably possibly true. The court also noted internal difficulties in the complainant’s account, including that she did not observe the act of intercourse itself, and that aspects of her testimony (particularly regarding whether she asked the appellant if he had ejaculated into her) conflicted with her earlier statement to the police.

Further factual aspects considered material by the appeal court included that the complainant and appellant were strangers, and the record did not establish that WM provided the appellant with the complainant’s address. WM’s evidence was that she thought the complainant and appellant knew each other. The appeal court treated the question of how the appellant would have transported the complainant to her home, if he did not know where she lived, as relevant to whether the complainant was able to communicate directions and thus whether she was necessarily incapacitated by intoxication.

3. Legal Issues

The appeal court identified two main questions for determination.

The first was whether the complainant was intoxicated to such an extent that she was not in a position to consent to sexual intercourse. This issue involved the application of legal standards governing consent to the facts, including an evaluative assessment of the degree of intoxication proved on the evidence.

The second was whether the appellant’s version—namely that intercourse occurred with consent—was reasonably possibly true. This was a classic criminal-law question involving the assessment of evidence and probabilities and the application of the criminal standard of proof, namely whether the State had excluded the appellant’s version beyond reasonable doubt.

A further issue, arising from the nature of the evidence, was the approach required where the complainant was effectively a single witness on key aspects and where there were acknowledged features such as intoxication and contradictions. This implicated the cautionary approach to single-witness evidence under section 208 of the Criminal Procedure Act and the principles articulated in the cited authorities.

4. Court’s Reasoning

The appeal court approached the central dispute as one turning on whether the State proved, beyond reasonable doubt, that the complainant lacked the capacity to consent due to intoxication, and whether the trial court was correct to reject the appellant’s version as not reasonably possibly true.

In dealing with intoxication, the court accepted that the complainant was intoxicated, but emphasised that intoxication exists in degrees, and that the legal significance depends on whether the intoxication reached a stage where a person cannot be said to form intention or meaningfully consent. In this regard, the court referred to the discussion in S v Chretien 1981 (1) SA 1097 (A), which in turn referenced R v Bouke 1916 TPD 303, recognising that impairment may range from mild disinhibition to a stage where faculties are so dulled that intention (and by implication meaningful decision-making) is absent. The appeal court framed the enquiry as whether the complainant’s evidence established incapacity at the requisite level, rather than merely that she had been drinking heavily.

The court found difficulties in the complainant’s evidence when evaluating whether incapacity was shown. It stressed that the complainant did not see or feel the act of intercourse and that her allegation of rape emerged as an inference drawn from what she discovered upon waking and what she reported to WM. The court further considered a material contradiction between the complainant’s testimony and her earlier police statement regarding whether she asked the appellant if he had ejaculated into her, and treated this as undermining her reliability on a matter connected to her interactions with the appellant.

The court also reasoned from circumstantial considerations related to the parties being strangers. It found that the fact that the complainant did not recognise the appellant even months later did not corroborate an inference of extreme intoxication, but rather aligned with the uncontested position that they did not know each other. It then considered the practical problem of how the appellant would have taken the complainant home if he did not know her address and no evidence showed that WM provided it. On the record before it, the court regarded it as logically likely that the complainant would have had to give directions, and it held that this made it difficult to conclude that she was so intoxicated as to be unable to communicate or consent.

The appeal court further held that, given the evidence that the relevant witnesses were drunk and that the complainant was effectively a single witness on the pivotal question of non-consent and incapacity, the matter required a cautionary approach. Referring to section 208 of the Criminal Procedure Act 51 of 1977, and the authorities R v Mokoena 1956 (3) SA 81 (A) and S v Sauls and Others 1981 (3) SA 172 (A), the court reiterated that a conviction may follow on the evidence of a single competent witness, but that such evidence must be clear and satisfactory in all material respects, and must be assessed for credibility and reliability with appropriate caution that remains grounded in common sense. On its evaluation, the complainant’s evidence did not meet the level of reliability required to exclude the appellant’s version.

A central feature of the court’s reasoning was that the State’s proof of intercourse depended materially on the appellant’s admission, while the complainant did not observe intercourse. The appeal court questioned the coherence of accepting the appellant’s admission that intercourse occurred, yet rejecting his account that it occurred with consent, without corroborating evidence to contradict him on that aspect. Closely related to this, the court criticised a factual finding by the trial court that intercourse took place “in the veld amongst the trees”, observing that this was not supported by the evidence, which went no further than the complainant’s limited recollection of seeing trees in the dark.

In assessing whether the appellant’s version was reasonably possibly true, the court applied the approach articulated in S v Chabalala 2003 (1) SACR 134 (SCA), namely that the court must weigh the indicia pointing to guilt against those pointing to innocence, having regard to strengths, weaknesses, probabilities and improbabilities, and then determine whether the State’s case excludes reasonable doubt. The appeal court found that the appellant’s version was not shown to be inherently improbable. It also considered the appellant’s conduct after intercourse—specifically that he took the complainant to a friend’s house and conversed outside with the friend’s husband—as conduct that did not readily align with the inference that he had just committed rape, and treated this as supportive of the conclusion that reasonable doubt remained.

Although the court acknowledged that there were contradictions in the appellant’s evidence, it held that these were not so material as to destroy the reasonable possibility that his version was true. On the totality of the evidence, the court concluded that the trial court had erred in rejecting the appellant’s version and that the State had not proved guilt beyond reasonable doubt.

5. Outcome and Relief

The High Court upheld the appeal against both conviction and sentence.

The court set aside the conviction for rape and the sentence of 10 years’ imprisonment imposed by the regional court.

The judgment, as reported, does not record a separate or additional order concerning costs, and the operative relief was the setting aside of conviction and sentence.

Cases Cited

S v Chretien 1981 (1) SA 1097 (A). R v Bouke 1916 TPD 303. R v Mokoena 1956 (3) SA 81 (A). S v Sauls and Others 1981 (3) SA 172 (A). S v Chabalala 2003 (1) SACR 134 (SCA).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 208 and section 220.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, although the complainant was intoxicated, the evidence did not establish that she was intoxicated to such a degree that she was incapable of giving consent. The complainant’s evidence contained material contradictions and was not sufficiently clear and satisfactory on the decisive issues, particularly given that she did not observe the intercourse and her allegation of rape rested on inference.

The court further held that the appellant’s version that the intercourse was consensual was reasonably possibly true, and that the trial court erred in rejecting it. Applying the approach to proof beyond reasonable doubt and the proper treatment of single-witness evidence, the court found that the State had not excluded reasonable doubt, with the result that the conviction and sentence could not stand.

LEGAL PRINCIPLES

The judgment applied the principle that intoxication is a matter of degree, and legal conclusions about intention or capacity cannot be drawn merely from the fact that a complainant was drinking; the evidence must show impairment sufficient to negate meaningful consent, assessed in light of the recognised gradations of drunkenness discussed in the authorities.

The judgment applied the principle that an accused may be convicted on the evidence of a single competent witness under section 208 of the Criminal Procedure Act 51 of 1977, but that such evidence must be evaluated with caution and must be clear and satisfactory in all material respects, with credibility and reliability assessed without substituting mechanical caution for common sense.

The judgment applied the criminal-law standard that, when an accused’s version is reasonably possibly true, it must be accepted and the accused is entitled to an acquittal. The court endorsed the approach of weighing all factors pointing to guilt against those pointing to innocence and deciding whether the State’s case excludes reasonable doubt, as articulated in S v Chabalala 2003 (1) SACR 134 (SCA).

The judgment further reflected that where the State relies materially on an accused’s admission to establish an element (here, intercourse), careful attention must be paid to whether there is an evidential basis to accept part of the admission while rejecting the remainder (here, consent), particularly in the absence of corroboration on the rejected aspect.