Cele v S [2016] 2 All SA 75 (KZP)

Criminal law – Rape – Appeal against conviction – Proof of guilt – Onus of proof – Onus to prove the guilt of an accused person rests on the State, with there being no duty on an accused person to prove his innocence – Trial court committing various misdirections in its assessment of evidence, resulting in conviction and sentence being set aside.

Convicted on a charge of rape of a 5-year-old girl, the appellant was sentenced to 15 years’ imprisonment. He was granted leave to appeal against conviction only.

Witnesses for the State were the complainant and her mother, whilst the defence witnesses were the appellant, his uncle and his aunt. The appellant and the complainant were cousins.

Held – The onus to prove the guilt of an accused person rests on the State, with there being no duty on an accused person to prove his innocence.

The trial court was found to have accepted that the complainant was a credible and impressive witness, and failed to explore all the contradictions in the State’s case. That constituted a misdirection. The trial court also erred in its interpretation of the medical report by the doctor who had examined the complainant.

A further misdirection existed in the form of the trial court’s failure to consider the possibility that the complainant could have been coached into making the allegations she made in the statements to the police. The testimony of the witnesses raised such possibility, and it was incumbent on the court to address the issue. The Court also found that the appellant was an evasive and unsatisfactory witness, but provided no substantiation for that conclusion.

Not satisfied that the State had succeeded in proving the guilt of the appellant beyond reasonable doubt, the Court upheld the appeal and set aside the conviction and sentence.

In a dissenting judgment, the view was expressed that the appellant’s appeal against conviction should be dismissed.

The dissenting judge raised the question of how an appeal court should approach the evidence of a single witness, a child testifying at the age of eight years about an accused allegedly raping her three years earlier. Addressing each of the grounds of appeal, the Court concluded that it would have dismissed the appeal.

The appellant’s contention that there was no medical corroboration for the complainant fell to be rejected. The judge held that there was nothing unclear about the doctor’s observations of injury to the complainant. The appellant’s suggestion that the report did not corroborate the complainant’s version because it was done nine days after the incident, was also found wanting. It was held that no adverse inference against the prosecution witnesses could be drawn from the delay of 9 days in seeking a medical examination.

Next, the dissenting judge considered the allegation by the appellant that the complainant’s testimony was marked by inconsistency. The primary challenge to the reliability and credibility of the complainant’s evidence was levelled at differences between the complainant’s evidence and her statement to the police. The only differences the appellant relied on in its heads of argument related to what she said she had worn when she was allegedly raped to where the rape occurred. The judge found credible reasons for the inconsistencies – which would render them immaterial. It did not necessarily follow therefore that the only reasonable inference to be drawn from the inconsistency was that the complainant was mendacious or even mistaken when she was testifying. The inconsistency had to be weighed in the context of all the evidence. In the circumstances of this case, it could not be said that the inconsistency amounted to a contradiction.

The trial court had found the complainant to be a credible witness, and the appellant to be an evasive and unsatisfactory one. The dissenting judgment found those findings not to be open to question, issuing a reminder that an appeal court should be slow to overturn a trial court’s findings on credibility. Evidence of credibility cannot be approached in a piecemeal manner. All the evidence for and against each party has to be viewed holistically.


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