- The Supreme Court of Appeal found that the complainant admitted she could not remember what happened due to alcohol and blackouts.
- The court identified contradictions, missing witnesses, and inconclusive medical evidence as serious weaknesses.
- Pholosi has been granted leave to appeal his conviction before a full bench of the High Court.
The Supreme Court of Appeal has found that a rape conviction may not be safe after the complainant admitted under oath that she cannot remember what happened during critical parts of the night in question.
Judge PA Koen captured the central weakness, saying. “She conceded… that she actually did not remember what happened on the day in question.”
The complainant, a 14-year-old girl, testified that on 26 May 2017, she met friends at a taxi rank before heading to Lefty’s Place and later to Jemma’s Tavern, where she drank alcohol. She acknowledged that she was underage at the time.
She told the court that she later experienced a blackout, her last clear memory being of drinking in a vehicle at the taxi rank. She said she woke up in an unfamiliar house, naked from the waist down, with Pholosi on top of her, attempting to rape her. She said he covered her mouth when she tried to scream and continued until he had raped her. She was later dropped off at Jemma’s Tavern.
Pholosi denied her account entirely. He testified that they met outside the tavern, spoke, and left together with others. He said the complainant willingly accompanied him to his brother’s house, where they kissed and attempted to have intercourse, but he was unable to and stopped when she asked him to. His version was corroborated by Mojalefa Pharedi, who confirmed that they later travelled together.
Memory gaps undermine reliability
The appeal court found that the complainant’s own evidence introduced a significant weakness into the State’s case. She admitted to drinking, blacking out at points during the night, and being unable to recall large portions of the evening.
Her memory gaps extended to key events, including how she moved between locations, how she got into the vehicle at certain points, and what occurred during parts of the journey. At one point, she acknowledged that she simply did not know what had happened, due to her level of intoxication.
Judge Koen described her account as “incomplete… interspersed with blank episodes,” raising doubt about whether it could be regarded as clear and satisfactory in every material respect.
Single witness evidence and contradictions
The complainant was the only witness to the alleged rape. The court emphasised that while a conviction can rest on a single witness, that evidence must be reliable when viewed as a whole and must be approached with caution.
The court also identified contradictions within her evidence. She gave conflicting accounts about whether she had clothing for an overnight stay, saying in one instance that she fetched it from home and in another that she already had it with her. She was unable to explain the inconsistency.
Her account also included the claim that her friends jumped out of a moving vehicle on the N12, which the court regarded as improbable. She could not recall whether she had spoken to the appellant outside the tavern or whether she had hugged him, attributing her memory lapses to alcohol.
Taken together, these contradictions, her intoxication, and her memory gaps significantly weakened the reliability of her evidence.
Medical evidence does not resolve the dispute
The trial court relied on the medical findings of Dr Gloria Mphela, who observed her and recorded that sexual assault was “highly suspected.”
The appeal court found that this conclusion was not decisive on the question of whether rape had actually been proved. Critically, the distinction between sexual assault and sexual penetration had not been properly explored at trial.
The defence expert, Dr Adriaan Steyn, testified that the injuries recorded were consistent with the appellant’s version of events. He explained that a rape would likely have caused more extensive injuries, including greater bleeding, swelling, and additional trauma, none of which were present.
The court found that this evidence raised a real doubt as to whether the offence had been established beyond a reasonable doubt.
Failure to call key witnesses
The State failed to call several witnesses who were central to the complainant’s account, including her friends, Mr Gathatsi, and Rebecca Mtuane, all of whom were present shortly after the incident.
No explanation was offered for their absence. The court held that these witnesses could have shed important light on her condition, conduct, and whether she had made a first report of the alleged assault.
Judge Koen held that an adverse inference could be drawn from this, suggesting their evidence may not have supported the State’s case.
Delayed report and surrounding circumstances
The complainant did not report the alleged rape at the first reasonable opportunity. She interacted with several people throughout the morning, including a security guard at SASSA, but did not disclose the allegation until the following day and only after concerns were raised about pregnancy and disease.
The court found that while a delayed report is not in itself decisive, it is an important factor where consent is in dispute and must be weighed carefully.
The court also noted that the complainant had defied her mother’s instructions and consumed alcohol, factors that may have influenced how events were later recalled and described.
Reasonable doubt and outcome
Having weighed the totality of the evidence, the court concluded that another court could reasonably arrive at a different verdict.
Judge Koen held, “Another court could reasonably conclude… that the State has not proved the guilt of the appellant beyond a reasonable doubt.”
The appeal was upheld. The order of the High Court in the North West was set aside and replaced with an order granting Pholosi leave to appeal his conviction before a full bench of the High Court.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
