Bongi Biyela v The State

The appellant was charged with raping a complainant alleged to be 15 years old. Sexual intercourse between them was common cause, admitted under s 220 of the Criminal Procedure Act 51 of 1977. The appellant’s defence was that the intercourse was consensual and that he believed the complainant to be between 18 and 20 years old. The parties had spent the evening together at nightclubs, where the complainant was allowed entry and behaved in a manner consistent with an older age. After returning to Mamelodi, the complainant remained alone with the appellant and went with him to his home, where intercourse occurred. The complainant alleged coercion, including threats with a knife, while the appellant denied this. Medical evidence recorded genital injuries and listed the complainant’s age as ‘15’ based on apparent age, without independent proof. The Regional Court convicted the appellant of rape and sentenced him to 15 years’ imprisonment. His appeal to the North Gauteng High Court was dismissed, after which he appealed to the Supreme Court of Appeal.

The appeal succeeded. The conviction and the sentence of 15 years’ imprisonment were set aside.

The case underscores the strict evidentiary requirements in sexual offence prosecutions, particularly the need for proof beyond reasonable doubt of a complainant’s age where statutory rape is implicated. It clarifies that medical evidence noting ‘apparent age’ or injuries consistent with force is not conclusive without proper expert testimony. The judgment reinforces principles governing mutually destructive versions, the evaluation of single-witness testimony, and the defence of reasonable deception as to age under the Sexual Offences Act.