Haarhoff & another v Director of Public Prosecutions, Eastern Cape

The appellants, Mr Haarhoff and Mr Baartman, together with a third accused, were charged with rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The incident occurred in Pearston, Eastern Cape, involving a complainant who was mentally challenged with a mental age of approximately 10 years. The appellants admitted to having sexual intercourse with the complainant on separate occasions but claimed it was consensual, while the third accused denied any sexual involvement. Expert evidence from a clinical psychologist, which was unchallenged, established that although the complainant was mentally challenged, she was competent to testify and understood the difference between truth and falsehood. The trial court accepted the complainant’s evidence as a single witness, convicted the appellants, acquitted the third accused, and sentenced each appellant to 20 years’ imprisonment.

The appeals against both conviction and sentence were dismissed, and the sentences of 20 years’ imprisonment imposed on each appellant were confirmed.

The case clarifies the proper application of s 164 of the Criminal Procedure Act regarding the admonition of witnesses who are mentally challenged. It affirms that such witnesses can be competent and credible and underscores the courts’ duty to afford equal protection to vulnerable members of society, particularly in sexual offence cases.