Petrus Liebenberg v The State

On 12 May 1995, the complainant (a 47-year-old female) was walking alone on a street at Obiqua Crescent in Tulbagh at approximately 21h40 when she was grabbed from behind by a male person who held a knife to her throat. The assailant threatened to rape and kill her, touched her bosom, and took R157.00 she had kept there. The assailant raped the complainant three times, sodomised her once, forced her to perform indecent acts on him, and urinated on her before leaving with her money, jacket, telegram card, and R12.50. The incident took about 20 minutes. The complainant went home and four hours later went to the police station to lay a charge at approximately 07h00. She gave a detailed description of her assailant to the police. Constable Manie Baron left to look for the suspect and returned 15 minutes later with the appellant. The complainant identified the appellant by his voice and identified him to Sergeant Lillian Lottering. The appellant was convicted of rape and robbery by the regional court at Tulbagh and sentenced to eight years' imprisonment for rape and two years' imprisonment for robbery. An appeal to the Cape High Court was dismissed. The appellant raised an alibi defence, calling Ms Ann Jumat who testified that at 21h40 she and the appellant were together at Nico's place with other people, left after 22h00, and only parted at 01h00.

• What is the proper approach for courts when dealing with alibi evidence in criminal trials?
• What is the standard of proof required to reject alibi evidence?
• Can a conviction stand if the trial court accepts that alibi evidence cannot be rejected as false but still convicts based on strong prosecution evidence?
• What constitutes a violation of the right to a fair trial in the context of material alterations to the timing of alleged offences?
• What are the implications of inordinate delays in prosecuting criminal appeals on the constitutional right to appeal?

1. The appeal is allowed. 2. The order of the High Court is set aside and replaced by the following: (a) The appeal is allowed. (b) The convictions and sentences are set aside. 3. The late filing of the appeal record and the appellant's heads of argument is condoned.

Where an accused raises an alibi defence and the trial court accepts that the alibi evidence cannot be rejected as false, the accused is entitled to an acquittal even if the prosecution has led strong evidence to the contrary. There is only one test in a criminal case: whether the evidence establishes guilt beyond reasonable doubt. An accused is entitled to acquittal if there is a reasonable possibility that an innocent explanation proffered might be true. Once a trial court accepts alibi evidence as possibly true, it must find there is a reasonable possibility that the prosecution's evidence is mistaken or false - both versions cannot be reasonably possibly correct simultaneously. Acceptance of prosecution evidence alone cannot be a sufficient basis for rejecting alibi evidence; something more is required. The evidence, when considered in its totality, must prove the alibi evidence to be false. A material alteration to the date and time of alleged offences after trial would deny an accused the opportunity to present evidence regarding the altered timeframe and would violate the right to a fair trial.

The Court made significant observations about the unacceptable delays in prosecuting the appeal. The appellant was convicted on 22 September 1995 and the Cape High Court dismissed his appeal on 9 February 1996, but he was only informed three months later. He experienced difficulties contacting the Legal Aid Board for four years. His application for leave to appeal was only lodged on 22 May 2002, the record was only received by the SCA registrar on 24 April 2003, and the appeal was only heard on 19 May 2005. The Court stated that these inordinate delays are not only unacceptable but constitute a serious breach of the appellant's constitutionally entrenched right of appeal to a higher court. The Court noted that without explanation for the delays after May 2002, it was impossible to determine who was responsible or whether fault could be attributed. The Court also commented that the appellant vigorously protested his innocence from arrest, demanded samples be taken for medical examination (which were taken but never led in evidence), and requested an identification parade (which was never held), suggesting deficiencies in the investigation.

This case reaffirms and clarifies the approach South African courts must take to alibi evidence in criminal trials. It reinforces the principle that where alibi evidence is raised and cannot be rejected as false, the accused must be acquitted even if the prosecution has led strong evidence. The case serves as an important reminder that there is only one test in criminal trials - whether guilt is established beyond reasonable doubt - and that strong prosecution evidence alone cannot overcome a reasonable possibility that alibi evidence is true. The judgment also highlights concerns about systemic delays in the criminal justice system and the importance of protecting constitutional rights to appeal, particularly for legally aided appellants. The case demonstrates the courts' willingness to intervene where trial courts make fundamentally flawed findings regarding the assessment of conflicting evidence.