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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NUMBER : A239/24, OSH100/18
In the matter between
PAUL FOUCHE APPELLANT
and
THE STATE RESPONDENT
JUDGMENT
Scheduled date of hearing: 31 January 2025
Date of judgment: 25 February 2025
Coram: Le Grange J, Bhoopchand AJ
BHOOPCHAND AJ:
[1] This is an appeal against conviction. The Oudtshoorn Regional Magistrate
found the Appellant guilty on one count of contravening the provisions of Section 3 of
the Criminal Law (Sexual Court Offences and Related Matters) Amendment Act 32 of
2007. The Appel lant was charged with unlawfully and intentionally raping the
Complainant, N[...] D[...] , a 17-year-old female , on 16 April 2018, without her consent.
The provisions of the minimum sentence legislation applied. The Appellant was
sentenced to eight years imprisonment , of which two years were suspended for five
years.
[2] The Appellant advanced two principal grounds of appeal . He alleged that the
Magistrate erred in finding that the State had proved its case beyond reasonable
doubt and rejected his version of events . The Appellant alleged specifically that the
Magistrate failed to evaluate the medical evidence and the Complainant’s first report
to her mother before concluding that the Appellant penetrated the Complainant orally
and vaginally. The Respondent opposed the appeal .1 This Court shall consider the
evidence pertinent to the grounds of appeal.
THE EVIDENCE
[3] On 15 April 2018, the Complainant secured a lift in the car the Appellant had
been travelling in after visiting a nightclub in Oudtshoorn. When the car stopped to
allow the Appellant to purchase cannabis, he handed her his mobile phone. However,
the car dr ove off without him. Towards midday on 16 April 2018, the Appellant
searched for the Complainant and his mobile phone. After finding her, he discovered
that the driver of the vehicle had his mobile phone, and the two had smoked the Tik
they found in the ba ttery compartment of the Appellant’s phone.
[4] The Complainant accompanied the Appellant to the driver’s home to fetch his
cell phone . Upon discovering the driver was at work , the Appellant took the
Complainant to the nearby Westcott Park and, then, by force, into the bushes
alongside the road towards De Rust. The Complainant testified that the Appellant
penetrated her twice orally and twice vaginally after threatening her with a knife. The
Appellant nicked her nose with his knife. She reported the incident to her mother that
night and the police thereafter.
1 The Respondent’s application for cond onation for filing its heads of argument is granted. The
appeal was determined , by agreement, on the papers and the written submissions of the
parties.
[5] The Complainant’s mother, C[...] A[...], confirmed that the Complainant
reported the incident to her. The mother observed t hat the Complainant was not
herself ; she had been crying and was disturbed . The Complainant complained bitterly
about having to perform oral sex on the Appellant. The Mother noticed the cut on the
Complainant’s nose and scratch marks on her face.
[6] The Complainant was examined two days later. The doctor recounted the
history provided to him . Someone took the Complainant into the field and raped her.
She may have used drugs the day before . The perpetrator used a condom. On
examination, the doctor foun d a 7mm cut on the Complainant’s nose , the appearance
of which was consistent with an injury that could have occurred two days earlier. He
found no genital injuries . The doctor testified that he would not expect to see injuries
from forced penetration if t he perpetrator used a lubricated condom . He was unsure
of the effects of drugs used a day earlier.
[7] The Appellant’s testimony amounted to a complete denial of the rape. He
confirmed meeting the Complainant the night before the incident , locating her the
following day, and accompanying her to the driver’s home and Westcott Park. His
evidence then diverged from that of the Complain ant. He initially testified that he had
accompanied her home and later that he had accompanied her to her aunt’s house
close to where he had found her earlier that day. The Complainant had offered to
compensate him for smoking his Tik . He discovered days later that she accused him
of raping her.
[8] The Appellant was probed about the Complainant’s motive to implicate him . It
was put to the Appellant that there were stories about young women who gave sex in
exchange for Tik. He was asked whether he had heard of the practice. He replied ,
rather obstreperously, that he could not say he had not heard of it. It was put to him
that his phone and Tik were taken, and he wanted the Complainant to compensate
him with sex . The Appellant denied this. Did the Co mplainant cry rape to her parents
to avoid disclosing that she accompanied older men and had taken the phone and the
Tik? The Appellant's response was inaudible.
THE MAGISTRATE’S JUDGMENT
[9] The Magistrate found that the Complainant had given her account of the
events of 16 April 2018 spontaneously and in detail. She withstood a proper and
comprehensive cross -examination from an experienced lawyer. She did not contradict
herself in any material respect and maintained the version of events she testified to in
her examination in chief. Although fraught with emotions and crying occasionally, the
Complainant did not try to mislead , and no inherent contradictions flowed from her
testimony. He was mindful that the Complainant was a single witness, and her
testimony had to be viewed cautiously ,2 but he could convict an accused on the single
evidence of a competent witness.3 The Magistrate could hardly criticise how the
Complainant rendered her testimony.
[10] The mother’s testimony could not corroborate the rape, and it was not the
reason why it was admissible. Her testimony was clear and concise , without any
inherent contradictions or improba bilities . The Magistrate did not get the impression
the mother wanted to mislead. He was satisfied that the Complainant’s account of the
rape to her mother was made voluntarily and at the earliest opportunity. It was a
suitable first report.
[11] The doctor’s testimony was not in dispute. It did not advance the State’s case
any further except that it emphasised that there may not be genital injuries from
vaginal penetration, especially when a condom is used. The cut on the Complainant's
nose was consistent with an injury that could have occurred on the day of the
incident.
[12] The Appellant testified and was also subjected to comprehensive cross -
examination. Ultimately, the manner in which he gave evidence did n ot convince or
impress the Magistrate . Nor was his account plausible. The Court considered some
of his statements. Certain statements that were put on his behalf to the Complainant
and her mother were later denied. He was uncomfortable under cross -examina tion
and found it difficult to answer the Prosecutor’s questions properly . He entrusted his
2 S v Sauls 1981 (3) SA 172 at 180 E -G
3 Section 208 of the Criminal Procedure Act 51 of 1977
phone to the Complainant, but he never threatened to take steps about the phone,
which he could have used as a motive for the Complainant fabricating the complaint
against him. The Complainant’s detailed testimony was inconsistent with it being a
mere fabrication.
EVALUATION
[13] The Magistrate reminded himself that the question to be answered was
whether the State had discharged its obligation to prove its case against the Appellant
beyond a reasonable doubt. The Complainant’s testimony was truthful4 and had to be
accepted, whereas that of the Appellant could not be accepted where it contradicted
the State's. The Magistrate found the Appellant guilty as charged.
[14] Key aspects of the Appellant’s evidence support the Magistrate’s findings. It
was put to the Complainant that the Appellant would testify that they went towards
Westcott Park after they had been to the driver so he could leave her at home. The
Complainant confirmed the Appellant’s version , stating that he had told her of a
shortcut through th e park to get her home. The Appellant testified , contradicting what
was put to the Complainant, that he walked her back to her aunt’s home , where he
found her earlier that day after they had been to the park. The version put to the
Complainant corroborated her evidence of why she accompanied the Appellant to the
park. As for the Appellant , Westcott Park was an unexplained detour on the way back.
If the Appellant wanted to leave the Complainant at her aunt’s hou se, they would
have returned the same way they did when they went.
[15] It was put to the Complainant that the Appellant had established from the four
persons smoking at the house where he located her earlier that day that the
Complainant and the driver wante d to sell the Appellant’s phone the night before. The
Appellant knew of the Complainant’s alleged attempt to sell his phone before they
proceeded to the driver’s home. The Complainant had told him on the way to the
driver’s home that she and the driver had smoked the Tik concealed in his phone. The
phone was important because the Appellant used it daily to speak to a female friend
4 S v Weber 1971 (3) SA 754 (AD) at page 758
in New Zealand. Yet, when probed about his reaction to the missing phone and the
Tik, he gave the implausible answer that he was merely disappointed with the
Complainant.
[16] The A ppellant testified that t he Complainant agreed to pay him R100 for the
Tik she had smoked. She would get the R100 from her mother. He waited outside her
aunt’s home for the money , but the Complainant did not return after she went inside.
The Appellant testified that he knew where the Complainant lived as he had been
there earlier and had spoken to her f ather. W hy did he wait outside the aunt’s home to
get the R100 the Complainant promised him?
[17] The Appellant provided contradictory testimony on his knowledge of where the
Complainant lived, whether they smoked drugs and whether they smoked together,
how he established that the Complainant wanted to sell his phone, whether the
Complainant had volunteere d to pay for the Tik she had smoked, and his interactions
with the Complainant’s father when the latter confronted him about raping the
Complainant. The Magistrate correctly rejected the Appellant’s version of events , and
that ground of appeal must fail.
[18] The Magistrate recognised the limitations of the doctor’s evidence. Neither the
doctor ’s testimony nor the mother’s had any direct bearing on whether the Appellant
raped the Complainant as the Appellant suggest s it should have. The Magistrate
found that the Appellant committed the offence he was charged with on the
competent and credible evidence of the Complainant. The Complainant’s account to
her mother was the first report of her rape. It was important becaus e it occurred soon
after the rape and proved consistency in the Complainant’s testimony.5 The mother
confirmed that the Complainant had identified the Appellant as the perpetrator and
that the Complainant suffered scratches and cuts to her face .
[19] The Magistrate had to deal with the e vidence of a single witness and had to
consider two mutually destructive versions, one alleging that a rape occurred and the
5 S v Hammond 2004 (2) SACR 303 (SCA), Vilakazi v The State (636/2015) [2015] ZASCA 103
other denying it altogether. The Magistrate’s evaluation of the evidence and his
judgment on convi ction is beyond reproach.
[20] There are well -established principles governing the hearing of appeals against
findings of fact. In the absence of demonstrable and material misdirection by the trial
court or the holistic evaluation of the evidence , its findings of fact are presumed to be
correct . They will only be disregarded if the recorded evidence shows they are clearly
wrong .6 The Appellant acknowledged the law and principles applicable to appeals on
conviction. The transcript indicates that the Magistrate evaluated the evidence
holistically and correctly. This Court aligns itself with his findings.
[21] After scrutinising the evidence presented by both the State and the defence,
this Court cannot identify any error or misdirection, either in fact or in law, with the
prosecution and convi ction of the Appellant. This Court finds no merit in the
Appellant’s grounds of appeal , and they stand to be dismissed.
[22] In the premises, I propose the order that follows.
ORDER
The Appellant’s appeal against his conviction is dismissed.
________________________
Bhoopchand AJ
I agree, and it is so ordered.
________________________
Le Grange J
6 S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645e -f. See also : S v Monyane and
Others 2008 (1) SACR 543 (SCA) at para 15; S v Francis 1991 (1) SACR 198 (A) at 204e , S v
Ntsele 1998 (2) SACR 178 (SCA) , S v Naidoo 2003(1) SACR 347 (SCA), at para 26
Judgment was handed down and delivered to the parties by e -mail on
25 February 2025
Appellant’s Counsel: LN Adams
Instructed by Legal Aid, South Africa
Defendants Counsel: N Ajam
Instructed by the NDPP