Pholosi v The State

The appellant, Mr Tebogo Pholosi, was convicted in the Regional Court of contravening section 3 of the Criminal Law Amendment Act (Sexual Offences and Related Matters) 32 of 2007 (rape) for allegedly penetrating the vagina of a 14-year-old female complainant with his penis. He was sentenced to 16 years' imprisonment. The trial court refused him leave to appeal his conviction. The appellant then petitioned the North-West Division of the High Court, Mahikeng in terms of section 309C(2) of the Criminal Procedure Act for leave to appeal. The High Court (Hendricks JP and Mfenyana J) dismissed the petition. The appellant then appealed to the Supreme Court of Appeal with its special leave. The complainant had been under the influence of alcohol on the night in question, had blacked out at times, and only reported the alleged rape the following morning after concerns were raised about possible disease or pregnancy. The appellant denied that penetration occurred and claimed any sexual contact was consensual. The defence adduced expert medical evidence and a corroborating witness whose evidence was consistent with the appellant's version.

• Whether the appellant had reasonable prospects of success on appeal against his conviction.
• Whether the High Court correctly dismissed the petition for leave to appeal in terms of section 309C(2) of the Criminal Procedure Act.
• Whether the evidence of a single child witness was clear and satisfactory in all material respects.
• Whether the State discharged the onus of proving guilt beyond a reasonable doubt.
• Whether an adverse inference should be drawn from the State's failure to call material witnesses.

The appeal was upheld. The order of the North-West Division of the High Court, Mahikeng dismissing the petition was set aside and substituted with an order granting the appellant leave to appeal against his conviction to a full bench of the North-West Division of the High Court, Mahikeng.

In an appeal against a High Court's refusal of a petition for leave to appeal under section 309C(2) of the Criminal Procedure Act, the test is whether the appellant has reasonable prospects of success in the envisaged appeal. The enquiry postulates a dispassionate decision, based on the facts and the law, whether a court of appeal could reasonably arrive at a conclusion different to that of the trial court. Where multiple grounds exist upon which another court could reasonably reach a different conclusion — including concerns about the reliability of a single child witness, equivocal medical evidence, absence of first-report evidence, improbabilities and contradictions in the State's evidence, and unexplained failure to call material witnesses — the appellant has reasonable prospects of success and leave to appeal must be granted.

The court noted that the complainant's age had never been properly investigated, save for reliance on an uncertified copy of her birth certificate, and that if she was under 16, the appellant could have been convicted of contravening section 15 of the Act (consensual sexual penetration with a child) as a competent verdict under section 261(1)(g) of the CPA. The court also noted that whether the complainant could have validly consented given her state of inebriation was not investigated. The reasons expressed in the judgment are not prescriptive nor dispositive of any issues relevant to the merits of the appeal on conviction, which the full bench would be required to decide.

This case provides important guidance from the Supreme Court of Appeal on the test to be applied when considering whether leave to appeal should be granted following the dismissal of a petition under section 309C(2) of the Criminal Procedure Act. It clarifies that the SCA's role in such appeals is limited to determining whether reasonable prospects of success exist, not whether the conviction was correct. The judgment also reinforces principles regarding the evaluation of single child witness evidence, the caution required where a complainant has been intoxicated and suffered memory blackouts, the importance of first-report evidence in sexual offence cases, and the potential adverse inferences to be drawn from the State's unexplained failure to call available material witnesses.