The Supreme Court of Appeal (SCA) has granted leave to appeal their convictions to two men, separately convicted of rape, citing procedural irregularities and concerns over aspects of the evidence.
In one matter, the court found there were reasonable prospects that another court could reach a different conclusion, pointing to discrepancies between the complainant’s account and the medical evidence, as well as the absence of DNA findings.
In a separate case, the SCA ruled that the Mthatha High Court committed a procedural misdirection by dealing only with the conviction on appeal, and not the sentence.
The matter has been sent back to the high court to be heard afresh before a new bench.
The judgment, delivered by appeal judge Wendy Hughes, stressed that appeal courts are required to consider both conviction and sentence together.
“The high court was tasked … to deal with an appeal on both conviction and sentence. Unfortunately, the high court dealt only with the conviction,” Hughes said.
“This was a procedural misdirection … as a grave injustice was committed by failing to address the sentence at all.”
The case relates to the rape of a nine-year-old girl in the Eastern Cape. The appellant, who cannot be named to protect the identity of the complainant, pleaded guilty in the Bizana Regional Court and was sentenced to life imprisonment in July 2022.
His appeal to the Mthatha High Court was dismissed.
Before the SCA, he argued that his plea statement did not fully cover all elements of the offence, including intention, and raised concerns about how the plea had been handled.
Court papers show that during sentencing, a medical report had not initially been formally submitted into evidence and was later read into the record.
The SCA did not make a finding on the merits of the conviction, instead ruling that the high court must properly consider both conviction and sentence together before the matter can proceed further.
“This would prevent the appeal from being heard … on a piecemeal basis,” Hughes said.
In the second case, the SCA granted leave to appeal against a rape conviction after finding that aspects of the evidence required closer scrutiny.
The appellant had been sentenced to 20 years’ imprisonment, with the high court previously granting leave to appeal only against his sentence.
He then approached the SCA for leave to appeal against his conviction.
The court found that issues raised by the appellant — including inconsistencies between the complainant’s version and the medical evidence, as well as the absence of DNA evidence — were arguable and warranted further examination.
Closer scrutiny is required … against the backdrop of the available medical evidence
Judge Mpho Catherine Mamosebo said these factors could not be dismissed outright.
“However, the ground based on the lack of DNA evidence seems to be stronger,” she said.
She added that the evidence would need to be carefully reassessed, particularly where there were differences between witness testimony and medical findings.
The court also considered claims that the defence’s cross-examination of the complainant had been limited, as well as alleged inconsistencies between witnesses.
“Closer scrutiny is required … against the backdrop of the available medical evidence,” Mamosebo said.
She concluded that there were reasonable prospects that another court could come to a different conclusion.
“This appeal must therefore succeed,” she said.
Both matters will now return to the lower courts for further proceedings.
Daily Dispatch
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