IN THE HIGH COURT OF SOUTH AFRICA
(FREE STATE DIVISION. BLOEMFONTEIN)
Reportable / Not Reportable
Appeal Case Number: A106/2024
In the matter between:
T. BONGE Appellant
and
THE STA TE Respondent
Neutral citation: T. Bonge v the State/A 106/2024
Coram: Mhlambi ADJP, et S. GROBLER, AJ
Heard on: 24 February 2025
Delivered on: 06 March 2025
Summary~ The proper approach to deciding if the state has proven its case,
is to determine if the probability of the State's case so far
outweighs that of the defence, that all reasonable doubt is by
that weighing exercise destroyed. The Magistrate in the present
case applied the wrong test, by simply finding that the state's
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version is the more probable. Not shown beyond reasonable
doubt that the Appellant was guilty of the offence. Appeal
succeeds.
ORDER
1. The appeal succeeds.
2. The appellant's conviction of 26 March 2024 and sentence of 9 April
2024 are set aside.
3. On the charge of contravention of s3 of the Criminal Law Sexual
Offences and related Matters Amendment Act, 32 of 2007 -rape -read
with the provisions of s51(1) of the Criminal Law Amendment Act, 105
of 1997, the appellant is found not guilty.
JUDGMENT
INTRODUCTION:
[1] When the matter was argued on 24 February 2025, we ordered as we did
because we did not believe that justice allows the incarceration of the
Appellant for one day longer as is now necessary. The parties were told that
the reasons for the order will be handed down later. These are those
reasons.
[2] The Appellant was found guilty by the Regional Court on a charge of rape on
9 April 2024, and sentenced to life imprisonment.
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[3] It must be mentioned that the appellant noted his appeal against the
sentence imposed upon him only. During argument however, Ms Kruger for
the appellant and Mr Mabale for the State, both submitted that this court
retains the inherent jurisdiction to deal with both the conviction and sentence.
As an aside, I express the court's sincerest thanks to both Ms Kruger and Mr
Mabale for the way in which the proceeding was conducted and the
responsible submissions they made.
THE FACTS:
[4] The appellant was charged with raping the complainant on multiple
occasions over the course of two effective days in May 2023. He pleaded
not guilty and provided a statement in terms of s115 of the Criminal
Procedure Act.
[5) His statement read that on the particular Wednesday, the complainant had
telephoned him and asked him to fetch her at a tavern which was situated at
the 'old location'. This was around 20h00. When he arrived there, he met the
complainant and one Mr Andries Moamoge . They all left the tavern, Mr
Moamoge went home, and he and the complainant walked towards the
complainant's place of residence. He entered the complainant's residence
and thereafter had consensual sexual intercourse with her. He spent the
night there and on the following Thursday morning they again had
intercourse, whereafter the complainant had asked him for money. He
refused. He also denied having prevented her from exercising her freedom
of movement and keeping her captive in her house.
[6] The State firstly submitted the J88-form, which stated that there were no
injuries detected to the complainant. A medical examination of the
complainant was done on 5 May 2023, almost immediately after the
appellant's alleged transgressions.
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[7] The complainant then testified. She said she and the appellant have a child
together. She testified that on 4 May 2023 the appellant had fetched her
from a shebeen and they were not in a relationship at that time. He stood -
according to her -at the gate of the shebeen whereafter he accompanied
her to her home. Mr Moamoge left for his home.
[8] When they arrived at the complainant's home, she unlocked the door and
believed that the appellant would leave for his abode thereafter. He however
entered her house, started swearing at-and slapping her and he then
strangled her.
[9] She testified that he wanted to undress her but when she resisted, he took
out a knife out of his pocket. She managed to grab the knife out of his hands
and throw it away. During the struggle she apparently also kicked the knife
on the ground so that it was no longer within plain sight. It was ultimately left
underneath the bed in her bedroom. She testified as well that she was 'not
heavily intoxicated'.
[1 O] The appellant forced open her legs with his and had intercourse with her.
After he ejaculated, he climbed off her. She took her telephone and told the
appellant that she was phoning the Police. He took the telephone from her,
threw it against the wall and it broke. She did not consent to having sex with
him at that or any time thereafter.
[11] She apparently stayed with him during the course of the evening until the
following morning. In fact, they both fell asleep.
[12] The next morning, he penetrated her again without her consenting.
[13] Around 4h30 that morning, the appellant told the complainant that she should
telephone her sister because he is going to kill her and he is going to kill
himself. She did so and spoke to her child who was residing with her sister
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at that time.
[14] Thereafter they went back to the bedroom at her house and they slept again.
The complainant testified that on this occasion the Appellant had sex with
her for a third time. Again, she did not consent.
[15] She did make food for them during the course of the evening as well and she
visited the toilet inside the house with the Appellant's blessing.
[16] The next morning Mr Moamoge came to fetch at her house what was only
described as being his container. The appellant allowed her to open the
door, whereafter she told Mr Moamoge that the appellant wanted to kill her.
She went outside and ran to Mr Ndedeza's house. She found two boys there
who accompanied her to her house again to go and look for the appellant,
who had by then already left.
[17] Under cross-examination most notably, she could not provide any
explanation as to why she did not scream, call for help or most notably to my
mind, why she did not leave during that evening. She also did not tell her
sister or her child what had happened to her, made food for the appellant,
etc. She also could provide no explanation why her torn undergarments had
not been presented, or why the knife was not presented to the court. There
was no mention of these two items in the SAP13 document. Under re
examination she testified that her relationship with the appellant had been
'on and off' for a number of years.
[18] Mr Moamoge then testified. He contradicted the complainant by stating that
the appellant had found both in the shebeen. At that time, he was drunk.
[19] He saw the complainant the following morning whilst he was on his way to
work. He stopped by at her house. He testified that they spoke a little bit,
and they walked across the street because she said that she wants to go to
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Mr Ndedeza's house. She told him that she wants to do this because the
appellant wanted to assault her.
[20] Importantly and under cross-examination, he testified that he accompanied
her across the street not because she told him that she had been raped or
that the appellant had wanted to rape her, but because the appellant
apparently wanted to assault her. She mentioned nothing about the rape to
Mr Moamoge.
[21] The appellant testified thereafter. He denied assaulting and swearing at the
complainant, but admitted that from the shebeen he had accompanied her to
her house. He testified that the complainant was drunk and he initially wasn't
interested in any physical interaction with her, but in her house and after she
had put his penis in her mouth, he had intercourse with her. They both fell
asleep, and he had sex with her again when both woke up the Thursday
morning.
[22] He testified that the complainant wanted money from him on the Thursday
morning to buy mohlapolo, which apparently is something that can be taken
to clear one's head after a heavy night of drinking. When he declined the
complainant became agitated. He left for work and the next day went back
to the complainant's house, where he was arrested.
THE JUDGMENT:
[23] The learned Magistrate found that that court was confronted with two
contradictory versions. The learned Magistrate then correctly found that the
complainant's version was contradicted by Mr Moamoge in various
instances, that her allegation of having been strangled and assaulted on
numerous occasions was not supported by the 'medical evidence' (there was
no su~h aliunde evidence tendered apart from the J88 submitted) . It is not
clear to what medical evidence the learned Magistrate referred. If the
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reference is to the fact that the J88 indicates no injuries to the complainant,
this obviously was correct.
[24) The learned Magistrate also -I think correctly -found Mr Moamoge as an
incredible witness. The court a quo found him to be disorientated and
confused when relaying his account of the events. The Magistrate correctly
found that Mr Moamoge had contradicted the complainant 'in terms of the
report made to him'. This of course -as I understand it -refers to the fact
that nothing had been said to Mr Moamoge about any rape when he met the
complainant the Thursday morning.
[25] The learned Magistrate moreover correctly found that the prosecution bore
the onus of proving the guilt of the appellant beyond reasonable doubt and
that the appellant bore no onus to prove his innocence. He correctly also
found that the accused need only put up a version that is reasonably possibly
true.
[26] Respectfully, the judgment then goes astray. The learned Magistrate
incorrectly then proceeded to find that the contradictions and inconsistencies
in the complainant's version, and her version compared to that of Mr
Moamoge, were not material. So, for instance, he found that there is nothing
in it if indeed the parties were in a relationship during that time or no. If
indeed they were as the appellant testified, consensual coitus would have
been had more probably than not.
[27) He also found that the actions of the complainant immediately after meeting
Mr Moamoge on that Thursday morning, are not consistent with someone
who had sexual intercourse consensually . I have difficulty with this finding.
The opposite seems to me more correct. One would have expected the
complainant to say that she was raped, multiple times, during the course of
that evening. She said no such thing; -and that is on her own version. Even
the complainant's version was not that she had said to Mr Moamoge or to
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anybody else she had been raped. It was thus not sufficient to state that Mr
Moamoge's version was improbable and, somewhat peculiarly, to prefer the
complainant's version. Both were the State's witnesses, and he could not
find that the State had proven its case beyond reasonable doubt.
[28] Fundamentally, I respectfully believe that the learned Magistrate erred when
he found apropos the versions:
'Looking at the evidence and having analyse (sic) it as a whole I find
that the probability favours more the version of the complainant than
that of the accused.'
[29] The Learned Magistrate did not enquire further. The court, of course, was to
weigh up the probabilities. But the enquiry had to go further, and the court
had to decide if the version of the State is so much more probable that it
avoided any reasonable doubt that may exist. This the Learned Magistrate
did not do. This is a serious misdirection.
[30] The SCA held in S v Trainor:1
'A conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidences that may be found to be
false. Independently, verifiable evidence if any, should be weighed to
see if it supports any of the evidence tendered. In considering whether
evidence is reliable, the quality of that evidence must out of necessity
be evaluated, as much corroborated evidence, if any. Evidence of
course, must be evaluated against the onus of any particular issue
borne in respect of the case in its entirety.' 2
1 2003 (1) SACR 35 (SCA) at para 9.
2 See also S v Chabalala, 2003 (1) SACR 134 (SCA) at para 15 where the court held:
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[31] I have no difficulty in finding that the State did not prove its case beyond
reasonable doubt, something to which Mr Mabale correctly conceded. Apart
from the grounds mentioned in the court a qou's judgment, it seems to me
improbable that the coitus was not consensual. This is easily shown up
through a whole host of rhetorical questions, chief among them being -to my
mind -how the complainant could not have escaped over the course of
several hours since the first and last incident? Nothing seems to have
prevented her from doing so.
[32] The Conviction cannot stand, which means a further debate on the sentence
is unnecessary.
[33] I, therefore, make the following order:
4. The appeal succeeds.
5. The appellant's conviction of 26 March 2024 and sentence of 9 April
2024 are set aside.
'The correct approach is to weigh up all the elements which points towards the guilt of the accused
against all those which are indicative of his innocence, taking proper account of inherent strength and
weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the
balance weighs to heavily in favour of the State as to exclude any reasonable doubt about the
accused's guilt.'
See also S v Mdlongwa, 2010 (2) SACR 419 (SCA) at para 11;
See further: S v Van der Meyden, 1999 (1) SACR 447 (W).
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6. On the charge of contravention of s3 of the Criminal Law Sexual
Offences ·and related Matters Amendment Act, 32 of 2007 -rape -read
with the provisions of s51 ( 1) of the Criminal Law Amendment Act, 105
of 1997, the appellant is found not guilty.
I concur.
On behalf of the State:
On behalf of the Respondent: Adv S Kruger
On instruction of:
Legal Aid
BLOEMFONTEIN
Adv. S. Mabale
National Director Public Prosecutions
BLOEMFONTEIN