Jonas Mathlare v The State

The appellant was a sports teacher at a school in Diepkloof. He was charged with rape of a 15-year-old pupil at the school. The complainant alleged that on 25 August 1994, after a sports event, the appellant instructed a taxi driver to take her and himself to his home where he raped her. She only reported the rape in January 1995 after a doctor found her pregnant. She subsequently gave birth to a child. The appellant admitted accompanying the complainant in the taxi but denied rape, sexual intercourse, or taking her to his home. He was acquitted of rape but convicted of contravening section 14(1)(a) of Act 23 of 1957 (intercourse with a girl under 16). A court order was granted for blood samples to be taken from the appellant, complainant, and child for DNA testing. DNA evidence by expert witness Mrs Olga Letitia Philips showed a 99.04% probability that the appellant was the biological father of the child.

• Whether the State proved beyond reasonable doubt that the blood samples analysed were those taken from the appellant, the complainant, and her child
• Whether an informal admission can be deduced from questions put in cross-examination by the accused's legal representative
• Whether formal proof is required for admissions made during the course of trial in open court

The appeal was dismissed. The conviction under section 14(1)(a) of Act 23 of 1957 and the sentence of eighteen months imprisonment (as reduced by the Witwatersrand Local Division) were confirmed.

Questions framed and put in cross-examination by an accused's legal representative during trial can constitute unequivocal informal admissions of facts, which require no formal proof. Where the entire tenor of cross-examination is conducted on the premise that certain facts are accepted (such as the identity of evidence samples), those facts are deemed admitted even in the absence of explicit acknowledgment. Such admissions made during the course of trial in open court are binding and do not require formal proof. The court will examine the context of the trial proceedings as a whole, including prior court orders, postponements, and the manner of cross-examination, to determine whether an implied admission has been made.

The court noted that even in the original notice of appeal and its later amendment, there was no suggestion that proof of the identity of the blood samples was lacking, which further supported the finding of admission. The court also observed, though not central to the decision, that it was satisfied based on the expert testimony that was not seriously challenged on appeal that the DNA evidence reliably established paternity with only a 0.06% possibility of error. The court made reference to the earlier procedural history, including the magistrate's remarks when ordering the blood test, though these comments were not directly relevant to the legal issues on appeal.

This case is significant in South African criminal procedure and evidence law for establishing that informal admissions can be deduced from the manner and content of cross-examination conducted by an accused's legal representative. It confirms that where questions put in cross-examination are premised on the acceptance of certain facts, those facts may be treated as admitted without requiring formal proof. The judgment reinforces the principle that admissions made during the course of trial in open court do not require formal proof. It demonstrates the application of the rule against allowing parties to take inconsistent positions during trial and on appeal (venire contra factum proprium). The case provides important guidance on how courts should assess the totality of conduct during trial proceedings, including cross-examination strategy, when determining whether facts have been admitted.