Shusha v S (609/10) [2011] ZASCA 171 (29 September 2011)

Shusha v S (609/10) [2011] ZASCA 171 (29 September 2011)

The Supreme Court of Appeal found that the magistrate had misdirected himself by rejecting the appellant's version solely on the basis of improbability, without identifying any inherent improbabilities that rendered the version false beyond reasonable doubt. The court reiterated that in criminal cases, the accused's version must be rejected only if it is so improbable that it cannot reasonably be true. The evidence did not establish such improbability, and the probabilities relied upon by the magistrate did not bear upon the issue of consent. The medical evidence was inconclusive and did not support either party. The appellant's version was not inherently improbable, and there remained a...

Citation
[2011] ZASCA 171
Parties
Appellant: Simphiwe Raymond Shusha; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 2011
Case Number
609/10
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence
Outcome
Appeal upheld; conviction and sentence set aside.
Judges
Heher, Cachalia, Shongwe, Theron, Majiedt
Legal Topics
Assessment of Evidence, Standard of Proof, Consent in Rape, Inherent Improbabilities
Criminal Law Assessment of Evidence Standard of Proof Consent in Rape Inherent Improbabilities

Case Brief

Summary, issues, holding and outcome

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Parties

Simphiwe Raymond Shusha

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Conviction and Sentence

Legal Issues

  1. 1 Whether the appellant's version of events could be rejected on the basis of inherent improbabilities.
  2. 2 Whether the state proved beyond reasonable doubt that the sexual intercourse was not consensual.
  3. 3 Whether the magistrate applied the correct standard of proof in assessing the evidence.

Ratio Decidendi

The Supreme Court of Appeal found that the magistrate had misdirected himself by rejecting the appellant's version solely on the basis of improbability, without identifying any inherent improbabilities that rendered the version false beyond reasonable doubt. The court reiterated that in criminal cases, the accused's version must be rejected only if it is so improbable that it cannot reasonably be true. The evidence did not establish such improbability, and the probabilities relied upon by the magistrate did not bear upon the issue of consent. The medical evidence was inconclusive and did not support either party. The appellant's version was not inherently improbable, and there remained a...

Court Disposition

Appeal upheld; conviction and sentence set aside.

Orders

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