De Wet v S (CA&R 90/2017) [2018] ZANCHC 13 (29 January 2018)

De Wet v S (CA&R 90/2017) [2018] ZANCHC 13 (29 January 2018)

The appeal court found that the complainant's evidence was inconsistent, unsatisfactory, and lacked independent corroboration on the critical issues of penetration and consent. The trial court erred in relying on probabilities that were not supported by the evidence and in treating reports to third parties as corroboration. The complainant's shifting versions, lack of physical evidence of violence, and failure to immediately lay a complaint undermined her credibility. The appellant's version was not excluded as a reasonable possibility. The convictions for rape and attempted rape could not be sustained on the evidence, and both convictions and sentences were set aside.

Citation
[2018] ZANCHC 13
Parties
Appellant: Joshua De Wet; Respondent: The State
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
29 January 2018
Case Number
CA&R 90/2017
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld; convictions and sentences set aside.
Judges
Olivier, Erasmus
Legal Topics
Sexual Offences, Rape, Attempted Rape, Consent, Credibility of Witnesses
Criminal Law Sexual Offences Rape Attempted Rape Consent Credibility of Witnesses

Case Brief

Summary, issues, holding and outcome

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Parties

Joshua De Wet

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the complainant's evidence was sufficiently satisfactory and corroborated to support convictions for rape and attempted rape.
  2. 2 Whether the appellant's version excluded the reasonable possibility of guilt.
  3. 3 Whether the trial court erred in its factual findings regarding penetration and consent.

Ratio Decidendi

The appeal court found that the complainant's evidence was inconsistent, unsatisfactory, and lacked independent corroboration on the critical issues of penetration and consent. The trial court erred in relying on probabilities that were not supported by the evidence and in treating reports to third parties as corroboration. The complainant's shifting versions, lack of physical evidence of violence, and failure to immediately lay a complaint undermined her credibility. The appellant's version was not excluded as a reasonable possibility. The convictions for rape and attempted rape could not be sustained on the evidence, and both convictions and sentences were set aside.

Court Disposition

Appeal upheld; convictions and sentences set aside.

Orders

  • The appeal succeeds.
  • Both convictions and sentences are set aside.