Mothusi v S (CA 35/2017) [2018] ZANWHC 38 (13 September 2018)

Mothusi v S (CA 35/2017) [2018] ZANWHC 38 (13 September 2018)

The appeal succeeded because the trial court misdirected itself in its evaluation of the evidence and the approach to cross-examination. The defence presented a reasonably possibly true version supported by multiple witnesses, including evidence that the bathroom door could not be locked and that the complainant's conduct after the incident was inconsistent with that of a rape victim. The trial court failed to properly assess the credibility and reliability of the defence witnesses and placed undue emphasis on peripheral aspects and the appellant's apology. The State's case was not corroborated by medical evidence or independent witnesses, and the probabilities did not favour the State....

Citation
[2018] ZANWHC 38
Parties
Appellant: Ontoetse Anthony Mothusi; Respondent: The State
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
13 September 2018
Case Number
CA 35/2017
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence After Leave Granted by Petition
Outcome
Appeal upheld; conviction and sentence set aside.
Judges
Gura, Kgoele
Legal Topics
Rape, Consent, Single Witness Evidence, Reasonable Doubt, Cross Examination, Credibility Assessment
Criminal Law Rape Consent Single Witness Evidence Reasonable Doubt Cross Examination Credibility Assessment

Case Brief

Summary, issues, holding and outcome

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Parties

Ontoetse Anthony Mothusi

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence After Leave Granted by Petition

Legal Issues

  1. 1 Whether the sexual intercourse between the appellant and the complainant was consensual.
  2. 2 Whether the trial court correctly assessed the credibility and probabilities of the State and defence versions.
  3. 3 Whether the trial court misdirected itself in its approach to cross-examination and the evaluation of defence evidence.

Ratio Decidendi

The appeal succeeded because the trial court misdirected itself in its evaluation of the evidence and the approach to cross-examination. The defence presented a reasonably possibly true version supported by multiple witnesses, including evidence that the bathroom door could not be locked and that the complainant's conduct after the incident was inconsistent with that of a rape victim. The trial court failed to properly assess the credibility and reliability of the defence witnesses and placed undue emphasis on peripheral aspects and the appellant's apology. The State's case was not corroborated by medical evidence or independent witnesses, and the probabilities did not favour the State....

Court Disposition

Appeal upheld; conviction and sentence set aside.

Orders

  • The appeal against conviction and sentence is upheld.
  • The conviction and sentence are set aside.