Shabangu v S (A98/15) [2016] ZAGPPHC 346 (15 March 2016)

80 Reportability

Criminal Law

Brief Summary

Criminal Law — Rape — Appeal against conviction and sentence — Appellant convicted of rape of a minor and sentenced to 25 years imprisonment — Key issues on appeal included proof of identity and penetration — Complainant testified to knowing the appellant and identified him as the perpetrator, while the appellant presented an alibi supported by his employer — Trial court found State proved its case beyond reasonable doubt, but failed to adequately consider the absence of penetration as per medical testimony and the reliability of the alibi — Appeal upheld, conviction set aside due to insufficient evidence to support the conviction beyond reasonable doubt.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned a criminal appeal to the High Court of South Africa, Gauteng Division, Pretoria, against both conviction and sentence imposed by the Benoni Regional Magistrates’ Court. The appellant, Addie Nkosingiphile Shabangu, had been convicted of rape and sentenced to 25 years’ imprisonment. The respondent was the State.

The charge was framed with reference to section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (and various related provisions), read with certain provisions of the Criminal Procedure Act 51 of 1977, and the minimum sentence regime in the Criminal Law Amendment Act 105 of 1997 (including sections 51 and 52 and Schedule 2). The complainant was a child, described as seven years old, and the alleged rape was said to have occurred on more than one occasion on dates not precisely identified by the complainant.

Leave to appeal was granted by the Regional Court. Pending the outcome of the appeal, the appellant was released on bail in the amount of R20 000.00. The appeal was determined on the basis of whether the State had proved the material elements of the offence beyond reasonable doubt, with particular emphasis on identity and penetration.

2. Material Facts

It was common cause that the State bore the burden to prove the appellant’s guilt beyond reasonable doubt. The State led evidence from the complainant and several other witnesses, including a community caregiver, the complainant’s aunt, the complainant’s teacher, medical personnel (a nursing sister who examined the complainant), and a police officer. The appellant testified and called his employer in support of an alibi.

On the State’s version, the complainant alleged that she had been raped in broad daylight by the appellant, described as her neighbour, and that she knew him from prior encounters. The complainant’s evidence also included that the perpetrator instructed her to say that it was “Thabo” who had sexually violated her. She further stated that she attended an identity parade where she was advised as to whom she should point out.

The evidence further reflected behavioural changes in the complainant, including an unusual pattern of wetting herself, which was said to be confirmed by at least two State witnesses.

As to medical findings, the nursing sister who examined the complainant observed a scar on the complainant’s posterior fourchette. The nursing sister’s evidence, as recorded in the judgment, was that she concluded there was no penetration beyond the hymen. She also speculated about the possibility of an attempted penetration, but her findings were that she could not find anything wrong with the child beyond what was noted.

The appellant’s defence was an alibi, namely that he was at work at the time of the alleged incidents. His employer testified and confirmed that the appellant was at work for the relevant period, relying on clock card receipts. The appellant denied having had any sexual intercourse with the complainant.

The trial court convicted the appellant, reasoning (among other things) that the complainant was reliable, rejecting the appellant’s evidence and alibi (despite the employer’s confirmation), and relying on an approach framed in part as questioning why State witnesses would fabricate evidence against the appellant.

3. Legal Issues

The appeal required determination of whether, on the totality of the evidence, the State had proved beyond reasonable doubt that the appellant was the perpetrator and that the conduct alleged amounted to rape, which in this case turned materially on proof of penetration and the reliability of the identification evidence.

The dispute involved both factual questions and the application of settled legal standards to those facts. The central questions were whether the evidence established the appellant’s identity as the perpetrator beyond reasonable doubt, whether the evidence established penetration to the extent required for rape, and whether the trial court applied the correct test when rejecting the appellant’s version (including the alibi) and when evaluating the State’s evidence and probabilities.

A further issue implicated the fairness and evidential weight of the identity parade, insofar as the complainant alleged she had been advised whom to point out, and the extent to which this aspect was properly dealt with in the evidential evaluation.

4. Court’s Reasoning

The High Court approached the matter from the premise that in criminal proceedings the State must prove each element of the offence beyond reasonable doubt, and that a court must evaluate the totality of the evidence. In doing so, the judgment relied on authority emphasising that the standard of proof beyond reasonable doubt is integral to a fair trial and the presumption of innocence.

The court criticised the trial court’s reasoning insofar as it adopted the approach of asking why State witnesses would falsely implicate the appellant. Relying on S v Ipeleng 1993 (2) SACR 185 (T), the High Court accepted that it is dangerous to convict on the basis that an accused cannot explain why witnesses would lie, because the accused bears no onus to provide such an explanation and the reasons for false implication may be unknown or unknowable to the accused. The High Court further drew from S v Ipeleng the principle that even if a court believes State witnesses, it does not follow automatically that the accused must be convicted; the proper enquiry remains whether there is a reasonable possibility that the accused’s version may be true, and an accused is entitled to an acquittal if the defence version is not shown to be false beyond reasonable doubt.

In relation to the appellant’s alibi and the broader assessment of the defence version, the court relied on Shackell v The State 2001 (4) SA 1 (SCA). The High Court restated the approach that a court need not be convinced that every detail of an accused’s version is true, and that if the version is reasonably possibly true in substance, it must be accepted. The High Court found that the trial court rejected the appellant’s alibi evidence, including the employer’s corroboration and the clock card receipts, without proper justification, and in a manner inconsistent with the correct legal test.

On the element of penetration, the High Court found that the trial court misdirected itself by disregarding the nursing sister’s evidence that there was no penetration (as she described it), and by failing to take proper account of the fact that her testimony was that of an expert in her field, whose findings would require appropriate countervailing expert evidence to displace. The court considered that this evidence created doubt, particularly given the complainant’s allegation of multiple instances of rape. Although the judgment also records acceptance that an attempted penetration up to the posterior fourchette (regarded as part of the vagina) had been proven, the High Court’s reasoning emphasised that the evidential position on penetration, as presented through the medical evidence, was not treated correctly by the trial court and contributed to reasonable doubt.

The High Court also considered the significance of the complainant’s reference to “Thabo” as the person she was told to name. It found that the State, without explanation, did not investigate or pursue this issue, and concluded that the matter appeared not to have been fully investigated before prosecution.

Finally, the High Court held that the issue of the identity parade was not adequately addressed by the State, including whether the process was fair, leaving uncertainty regarding the reliability of that evidence. In combination with the concerns about the medical evidence, the handling of the alibi, and the improper approach to evaluating credibility and reasonable doubt, the High Court concluded that the trial court’s finding could not stand.

5. Outcome and Relief

The High Court upheld the appeal against conviction. It set aside the trial court’s finding, concluding that the conviction could not be sustained on the evidence when assessed under the correct legal standards.

The order recorded in the judgment was that the appeal against conviction is upheld. The judgment does not record a separate costs order, and no costs order is reflected in the order portion.

Cases Cited

S v T 2005 (2) SACR 318 (ECD).

S v Zuma and Others [1995] ZACC 1; 1995 (1) SACR 568 (CC).

S v Ipeleng 1993 (2) SACR 185 (T).

Shackell v The State 2001 (4) SA 1 (SCA).

Legislation Cited

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, including section 3 read with sections 1, 55, 56(1), 57, 58, 59, 60 and 61.

Criminal Procedure Act 51 of 1977, including sections 256, 257, 281, 92(2) and 94 (as cited in the charge formulation recorded in the judgment).

Criminal Law Amendment Act 105 of 1997, including sections 51 and 52 and Schedule 2.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the trial court misdirected itself in its evaluation of the evidence and in its application of the criminal standard of proof. It found that the trial court impermissibly relied on reasoning that the appellant could not explain why State witnesses would fabricate their evidence, failed properly to apply the test that the accused’s version need only be reasonably possibly true, and inadequately justified the rejection of the appellant’s alibi evidence corroborated by his employer and clock card material.

It further held that the trial court failed properly to engage with the expert medical evidence bearing on penetration, that the State did not adequately address the reliability and fairness concerns surrounding the identity parade, and that the unresolved “Thabo” reference indicated incomplete investigation. In consequence, the conviction was set aside and the appeal against conviction was upheld.

LEGAL PRINCIPLES

The judgment applied the principle that in criminal proceedings the State bears the onus to prove guilt beyond reasonable doubt, and that this standard is connected to the presumption of innocence and the right to a fair trial, as reflected in the authorities cited.

It applied the caution that a court should not convict on the basis that an accused cannot provide reasons why prosecution witnesses would falsely implicate him, because the accused bears no duty to explain potential false implication, and the proper enquiry remains whether the State has discharged its burden on the totality of the evidence.

It reaffirmed that even where State evidence is accepted, an accused must be acquitted if there exists a reasonable possibility that the defence version may be true, and that an accused’s version may not be rejected merely because it is improbable; it may be rejected on probabilities only where it is so improbable that it cannot be reasonably possibly true.

It further reflected that expert medical evidence relevant to an element of an offence must be treated with appropriate weight within the evidential assessment, and that deficiencies in the investigation and in the treatment of potentially material identification evidence may contribute to reasonable doubt on whether the State has proved its case.