Japhta v The State

Vincent Japhta was charged with rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The State alleged he raped the complainant, Jermaine Raylene Mulder, in the early hours of 19 May 2019 at her residence. The complainant testified that after drinking alcohol with family and friends, she went to sleep fully clothed, including tight skinny jeans. She awoke to find the applicant on top of her, with both naked below the waist, her clothes on the floor. The applicant then allegedly left. She passed out again due to heavy intoxication. Medical examination the following day revealed no injuries or evidence of sexual assault. The day after the alleged incident, the complainant sent the applicant approximately 74 WhatsApp messages, threatening to report him to police and demanding he tell the truth about what happened. She admitted lying about being at a doctor and having semen found on her, to scare the applicant into confessing. She later lured him to her home and, together with her sister, assaulted him. The applicant's version was that he and the complainant kissed twice in her bedroom earlier that evening while checking on a friend. After others left, he took the complainant's sister home, then returned and entered the complainant's bedroom with her permission. They kissed and touched each other, both removing their lower clothing consensually. When the complainant said she did not wish to continue, he stopped. They lay together until another guest called him. The applicant maintained the complainant coerced him through threats and false promises into making ambiguous admissions in WhatsApp messages. The Regional Court convicted the applicant of attempted rape and sentenced him to eight years' imprisonment on 10 December 2021. The trial court dismissed his application for leave to appeal. A full bench of the Western Cape High Court dismissed his appeal. Two judges of the Supreme Court of Appeal dismissed his petition for special leave. The President of the SCA referred the matter for reconsideration under s 17(2)(f) of the Superior Courts Act.

• Whether the trial court properly applied the cautionary rule in relation to the evidence of a single witness
• Whether the trial court committed material misdirections in assessing the credibility and reliability of the complainant's evidence
• Whether the trial court erred in considering inadmissible or unreliable evidence
• Whether the impact of the complainant's severe intoxication on her ability to recall events was properly considered
• Whether admissions made by the applicant as a result of threats and false promises could be relied upon
• Whether exceptional circumstances existed to warrant reconsideration under s 17(2)(f) of the Superior Courts Act 10 of 2013

1. The referral of the order refusing special leave to appeal in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013 was properly made. 2. The order of the Supreme Court of Appeal refusing special leave was set aside. 3. The applicant was granted special leave to appeal against his conviction and sentence. 4. The order of the full bench was set aside and replaced with the following: (a) The appeal succeeds and the conviction and sentence imposed by the trial court are set aside. (b) The accused is found not guilty and is acquitted.

The binding legal principles established in this case are: 1. The cautionary rule in relation to single witness testimony requires that such evidence be substantially satisfactory in material aspects or be corroborated, but it need not be free of all conceivable criticism (applying S v Rugnanan). 2. Evidence obtained through threats, false promises and coercion has no probative value and cannot be relied upon to secure a conviction, regardless of whether it falls strictly within the exclusionary provisions of s 219A of the CPA. 3. Where a witness was severely intoxicated at the time of the alleged offence, courts must properly consider the impact of that intoxication on the witness's ability to recall events accurately. Failure to do so constitutes a material misdirection. 4. Misleading conduct by a complainant aimed at coercing admissions from an accused materially affects the complainant's credibility and must be taken into account in assessing the reliability of the complainant's evidence. 5. Material contradictions between a witness's initial statement and subsequent testimony, particularly where the witness was intoxicated, must be carefully scrutinized and explained. Failure to do so may constitute a misdirection. 6. For the purposes of s 17(2)(f) of the Superior Courts Act 10 of 2013, exceptional circumstances warranting reconsideration exist where compounding errors in the assessment of evidence are so extensive that they create a manifest risk of wrongful conviction, resulting in grave individual injustice. 7. Where the only incriminating evidence, apart from inadmissible admissions, does not establish the elements of the offence and is not fundamentally irreconcilable with the accused's version, there is a reasonable possibility that the accused's version could be true, and the accused must be acquitted.

The Court made the following obiter observations: 1. While the Court noted that Zeffert and Paizes state that "a person in authority" for purposes of s 219A of the CPA includes a complainant in sexual offence cases, the Court declined to definitively pronounce on whether a complainant in a sexual offence case is indeed "a person in authority" for the purposes of that section. The Court found it unnecessary to decide this issue because, even if the admissions did not fall foul of s 219A (not being induced by a person in authority), they had no probative value given they were obtained through threats and false promises. 2. The Court observed that errors of fact that turn on an assessment of evidence will not ordinarily amount to exceptional circumstances warranting reconsideration under s 17(2)(f). However, the Court noted that almost every refused petition in criminal cases would warrant reconsideration were it otherwise. 3. The Court commented that a wrong conviction on a serious charge such as attempted rape must inevitably result in grave injustice for the applicant, emphasizing the severity of such charges and the importance of ensuring proper application of legal principles in sexual offence cases. These observations provide guidance for future cases but do not form part of the binding ratio of the judgment.

This case is significant in South African criminal law and procedure for several reasons: 1. It clarifies the application of the cautionary rule in cases involving a single witness, particularly in sexual offence cases where the complainant is the sole witness to the alleged crime. 2. It demonstrates the proper approach to assessing the credibility and reliability of witness testimony, particularly where a witness was heavily intoxicated at the time of the alleged offence. 3. It emphasizes that courts must consider the impact of intoxication on a witness's ability to recall events accurately and must not ignore material contradictions between initial statements and subsequent testimony. 4. It provides guidance on the assessment of evidence obtained through coercion, threats and false promises, holding that such evidence has no probative value even if it does not strictly fall within the exclusionary provisions of s 219A of the CPA. 5. It illustrates the application of s 17(2)(f) of the Superior Courts Act, clarifying that while the threshold for reconsideration is high, exceptional circumstances exist where compounding errors create a manifest risk of wrongful conviction, resulting in grave individual injustice. 6. It reinforces the principle that where the totality of evidence does not establish the elements of the offence beyond reasonable doubt, and there is a reasonable possibility that the accused's version could be true, an acquittal must follow. The case serves as an important reminder to trial courts of their duty to carefully apply the cautionary rule and to thoroughly assess all evidence, particularly in sexual offence cases where convictions can result from material misdirections in evaluating single witness testimony.