The appellant was convicted of rape in the regional court, Verulam, on 2 February 2000 and sentenced to 10 years' imprisonment. The charge alleged that between November 1997 and March 1998, he had sexual intercourse with the complainant Portia Phahla (aged 13-14 years) without her consent on several occasions. The complainant testified that the appellant raped her when she visited his house to collect money for clothing her mother had sold him on credit. She testified the appellant raped her 5-6 times during this period. She did not initially report the rape because she was not close to her mother and feared she would not be believed. After her mother suspected she had a boyfriend and arranged a virginity test which revealed she was not a virgin, the complainant disclosed that the appellant had raped her. Medical examination showed findings consistent with but not conclusive of penile penetration. The appellant denied the allegations, stating the complainant was always accompanied by siblings and suggesting she falsely implicated him. In December 2002, while the appellant was serving his sentence, the complainant made a sworn statement to police recanting her testimony and stating she had falsely implicated the appellant. She stated she had consensual sex with her boyfriend Mduduzi but was afraid to tell her mother and implicated the appellant after relatives suggested his name during questioning. The high court granted leave to appeal and to lead further evidence. Before the appeal hearing, the complainant, Detective Captain Chonco, and the alleged boyfriend Mduduzi Nxumalo had all passed away.
The conviction and sentence were set aside in the interests of justice.
Where an appellant in a criminal matter satisfies the requirements for leading further evidence on appeal as set out in S v De Jager (reasonable explanation for not leading evidence at trial, prima facie likelihood of truth, and material relevance to outcome), but the key witnesses necessary to give that evidence have subsequently died, the court may set aside the conviction and sentence in the interests of justice. It would constitute a travesty of justice to deny relief to an appellant merely because it has become impossible through no fault of the appellant to lead evidence that would otherwise meet the requirements for admission of further evidence on appeal.
The court expressed grave doubts about the correctness of the conviction based on material contradictions in the complainant's evidence, particularly regarding whether she was accompanied by siblings when visiting the appellant's house. The court noted discrepancies between the complainant's evidence-in-chief (where she initially said she was accompanied) and her response to a leading question from the prosecutor (stating she was not accompanied on occasions when rape allegedly occurred). The court also noted the complainant's contradictory testimony regarding threats allegedly made by the appellant - mentioning threats only in cross-examination when initially asked about them in chief, she made no such mention. The medical evidence of sjambok wounds on the complainant supported her later affidavit stating she feared being beaten by her mother. These observations suggested the conviction may have been unsafe even without consideration of the recantation evidence.
This case is significant in South African criminal procedure for establishing that where an appellant satisfies the requirements for leading further evidence on appeal, but the witnesses have subsequently died making it impossible to lead that evidence through no fault of the appellant, the conviction and sentence may be set aside in the interests of justice rather than requiring the impossible task of leading evidence from deceased witnesses. The case illustrates the court's willingness to remedy potential miscarriages of justice even where procedural difficulties arise due to circumstances beyond the parties' control. It also highlights the importance of carefully scrutinizing complainant testimony for material contradictions in sexual offence cases.