High Court of South Africa
Eastern Cape Local Division, Grahamstown
8 October 2021
Ngcukaitobi JA
Issue:
Whether the State successfully discharged its burden to prove beyond a reasonable doubt that Mr Coko committed the crime of rape under s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
Ratio:
In order to be acquitted, the version of an accused need only be reasonably possibly true.
Arguments:
- In the present case, intention and consent are interrelated. The Appellant admitted that consent was not explicitly given. However, he had no intention of having sex with the Complainant without her consent. He genuinely believed that the (tacit) consent had been given by the conduct of the Complainant. [79-83]
- The Appellant’s evidence was that when the Complainant said the penetration was hurting, he ‘would stop and then continue’. This evidence (and other evidence illustrative of tacit consent) was not taken up in cross examination or considered in the assessment of probabilities by the Magistrate. It is a factual misdirection that the Appellant simply continued with the intercourse in disregard of the wishes of the Complainant, as held by the court a quo. [84-97]
- The court a quo erroneously found that the Appellant ‘lured’ the Complainant to his apartment and the rape was planned beforehand. There was no evidence on the record that such a scheme was devised by the Appellant. It seems on a fair reading of the record that the intention to have sexual intercourse was formulated during the night in question, when the Appellant and Complainant were already at the Appellant’s house. The Magistrate makes hyperbolic, speculative findings which have no basis from the record. [98-102]
- An adverse atmosphere was created in the trial, resulting in the Appellant making ‘concessions’ when the questions themselves were based on an incorrect rendition of the evidence and encroaching on the Appellant’s fair trial rights guaranteed in s35. [103]
Conclusion:
The appeal against the conviction and sentence succeeds. Mr Coko is acquitted of the charge of rape against him and the sentence of 7 years is set aside.
Full judgment: http://www.saflii.org/za/cases/ZAECGHC/2021/91.html
Lele Muthali 