THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 126/2014

Not Reportable

In the matter between

BRADLEY SYSTER

FIRST APPELLANT
JUSTIN VAN REENEN

SECOND APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Syster & another v The State (126/2014) [2014]
ZASCA 215 (01 December 2014)

Coram:
Bosielo JA, Schoeman and Fourie AJJA

Heard:
25 November 2014

Delivered: 01 December 2014

Summary: Criminal appeal against convictions on rape and indecent
assault – Complainant a single witness – evaluation of her
evidence – the trial court making credibility findings
favourable to complainant – whether the appeal court free to
interfere with such – consent – whether the evidence
sufficient to sustain the convictions.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from: Western Cape High Court, Cape Town (Goliath J and
Cloete AJ sitting as a court of appeal):

The appeal is dismissed.

__________________________________________________________

JUDGMENT
___________________________________________________________

Bosielo JA (Schoeman and Fourie AJJA. concurring):

[1] The facts of this case are not only intriguing but appear more
fictitious than real. Paradoxically, they are largely common cause
between the protagonists. They are succinctly set out hereunder.

[2] The first appellant and the complainant, TS a 19 year old woman
are blood cousins. Notwithstanding this they had a secret love affair
going on for almost two years. The second appellant is a friend of the first
appellant. After midnight on 8 June 2006, the two appellants arrived at
TS‟s home. She opened for them and returned to her bed. She was alone
in bed.  The two appellants entered her bedroom. The first appellant went
and sat on her mother‟s bed in the same room whilst the second appellant
joined her in bed on the pretext that it was cold. They got engaged in
some chit-chat.

[3] In no time the second appellant started to touch her private parts.
She objected. He then forced his tongue into her mouth. She tried to push
him away but all was in vain. The first appellant then joined them in bed.
Whilst TS was sandwiched between them, they began to suck her breasts.
Once again she protested and tried to push them away. However, they
overpowered her and pinned her down. They both forcibly pulled both
her trousers and panty off and the first appellant had sexual intercourse
with her. After he had ejaculated he dismounted and the second appellant
who had been in the bedroom throughout, approached her with his
trousers at knee-level, ostensibly to have sexual intercourse with her but
he never did. Both the appellants then left her home.

[4] It is common cause that TS did not report this incident to her
mother who arrived at home in the early hours of the morning. Her
explanation is that she was still frightened and confused and further that
her mother had a heart ailment. She feared for her well-being. She
however reported the incident to her friend, Rowena Engelbrecht
(Engelbrecht) the next day. She was taken to the police station where she
laid a charge of rape. She was medically examined by Dr Anneria
Lombard on 10 June 2006 who completed a medical report, the J88
detailing her observations and findings. It suffices to state that Dr
Lombard concluded that „pasiënt is waarskynklik teen haar sin
gepenetreer agv. vaginale erosies & klein skeurtjies‟.

[5] TS maintained that the entire act of cuddling, fondling and kissing
by both appellants culminating in the sexual intercourse with the first
appellant was not with her consent.

[6] On the other hand, although admitting to all the acts of fondling
and kissing and the sexual intercourse by the first appellant, the
appellants deny that it was by force. They testified that TS never resisted
or protested and that she consented to all the acts.

[7] Emanating from these facts, both appellants stood trial in the
Regional Court, Malmesbury on one count of rape and 2 counts of
indecent assault. They were convicted on one count of rape and one of
indecent assault each. The first appellant was sentenced to imprisonment
for 10 years in respect of rape and 5 years for indecent assault whilst the
second appellant was sentenced to imprisonment for 8 years for rape and
5 years for indecent assault. The respective sentences for indecent assault
were ordered to run concurrently with the sentence imposed in respect of
rape.

[8] With the leave of the regional magistrate, both appellants appealed
against their convictions to the high court. Their appeal was dismissed on
27 May 2011. The appeal against conviction to this Court is with the
leave of the court below.

[9] The gravamen of the appellants‟ attack against their convictions is
that, both regional magistrate and the court below adopted a wrong
approach to the evaluation of evidence. It was submitted further that both
courts erred in attaching inadequate weight to the fact that TS was a
single witness, and further that she contradicted herself as well as the
statement which she made to the police. It was furthermore contended
that both the regional magistrate and the court below erred in not finding

her version to be improbable as compared to that of the appellants, which
it was submitted was reasonably possibly true.

[10] On the other hand, counsel for the respondent submitted that the
version of TS was correctly accepted as it was corroborated not only by
her friend (Engelbrecht) to whom she reported the incident and Dr
Lombard, but importantly, by the version of both appellants. It was
contended that the appellants‟ version when evaluated against that of TS
is so inherently improbable that it cannot be reasonably possibly true.
Counsel for the respondent submitted that as both the regional magistrate
and the court below had made factual and credibility findings in favour of
the state, absent any proof that such findings are clearly or demonstrably
false, that this court, sitting as a Court of Appeal, cannot interfere with
such findings.

[11] At the heart of this appeal is the correct approach to the evaluation
of evidence in a criminal trial.

[12] I pause to observe that both the regional magistrate and the court
below gave detailed and well-reasoned judgments. Both judgments show
clearly that both the regional magistrate and court below were aware that
insofar as the actual sexual intercourse is concerned, TS was a single
witness; that she did not report to her mother when she arrived home that
morning; that there were contradictions between her evidence in court
and the statement which she had made to the police.

[13] In dealing with the fact that TS is a single witness, both the
regional magistrate and the court below found that her version was amply
corroborated by the evidence of both appellants. Save for the issue of
consent which they relied on, they both did not dispute her evidence. In
addition, support for her version can be found in the fact that she reported
the incident to her close friend, Engelbrecht the next day as well as the
medical report by Dr Lombard. As a result, both the regional magistrate
and the court below found that there is no indication that her evidence
was untruthful. I am unable to find any fault with the finding.

[14] Contrary to this, the regional magistrate and the court below found
the appellants‟ versions regarding consent to be so inherently improbable
as not to be reasonably possibly true.

[15] It is common cause that in evaluating the evidence, the regional
magistrate considered the merits and demerits of both the state‟s and
defences‟ version as well as the inherent probabilities of the case.
Counsel for the appellants criticised the regional magistrate for this
approach. In particular, he submitted that the appellants‟ version could
only be rejected if it was found to be false beyond reasonable doubt. It
suffices to say that this submission seductive as it may be at first blush is
fallacious.

[16] The State relied largely on the evidence of TS, the complainant.
Contrary to the submission on behalf of the appellants, she is not a single
witness. Her version of the events of that fateful night which forms the
subject matter of the charges against the appellants is corroborated by the
two appellants themselves. The only aspect of her evidence which they

disputed is her evidence that she did not consent to the actions in issue.
Further support of her version can be found in the evidence of
Engelbrecht and Dr Lombard, whose evidence was never criticised.

[17] The correct approach to the evaluation of evidence in a criminal
trial was enunciated by this Court as follows in S v Chabalala 2003 (1)
SACR 134 (SCA) para 15:
„The trial court‟s approach to the case was, however, holistic and in this it was
undoubtedly right: S v Van Aswegen 2001 (2) SACR 97 (SCA). The correct approach
is to weigh up all the elements which point towards the guilt of the accused against all
those which are indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabilities on both sides and, having
done so, to decide whether the balance weighs so heavily in favour of the State as to
exclude any reasonable doubt about the accused‟s guilt. The result may prove that one
scrap of evidence or one defect in the case for either party (such as the failure to call a
material witness concerning an identity parade) was decisive but that can only be an
ex port facto determination and a trial court (and counsel) should avoid the temptation
to latch onto one (apparently) obvious aspect without assessing it in the context of the
full picture presented in evidence….‟
This salutary approach was also adopted in S v Trainor 2003 (1) SACR
35 (SCA) para 9.

[18] Grappling with the perennial debate on the difference between
proof beyond reasonable doubt and proof on a balance of probabilities,
this Court enunciated the correct approach as follows in S v Phallo &
others 1999 (2) SACR 558 (SCA):
„On the basis of this evidence it was argued that the State had, at best, proved its case
on a balance of probabilities but not beyond reasonable doubt. Where does one draw a
line between proof beyond reasonable doubt and proof on a balance of probabilities?
In our law, the classic decision is that of Malan JA in R v Mlambo 1957 (4) SA 727
(A). The learned Judge deals, at 737F-H, with an argument (popular at the Bar then)

that proof beyond reasonable doubt requires the prosecution to eliminate every
hypothesis which is inconsistent with the accused‟s guilt or which, as it is also
expressed, is consistent with his innocence. Malan JA rejected this approach,
preferring to adhere to the approach which „at one time found almost universal favour
and which has served the purpose so successfully for generations‟ (at 738A). This
approach was then formulated by the learned Judge as follows (at 738A-C):
“In my opinion, there is no obligation upon the Crown to close every avenue of
escape which may be said to be open to an accused. It is sufficient for the Crown to
produce evidence by means of which such a high degree of probability is raised that
the ordinary reasonable man, after mature consideration, comes to the conclusion that
there exists no reasonable doubt that an accused has committed the crime charged. He
must, in other words, be morally certain of the guilt of the accused.
An accused‟s claim to the benefit of a doubt when it may be said to exist must not be
derived from speculation but must rest upon a reasonable and solid foundation created
either by positive evidence or gathered from reasonable inferences which are not in
conflict with, or outweighed by, the proved facts of the case.”
(See also S v Sauls and others 1981 (3) SA 172 (A) at 182G-H; S v Rama 1966 (2) SA
395 (A) at 401; S v Ntsele 1998 (2) SACR 178 (SCA) at 182b-h.)
The approach of our law as represented by R v Mlambo, supra, corresponds with that
of the English Courts. In Miller v Minister of Pensions [1947] 2 All ER 372 (King‟s
Bench) it was said at 373H by Denning J:
“(T)he evidence must reach the same degree of cogency as is required in a criminal
case before an accused person is found guilty. That degree is well settled. It need not
reach certainty, but it must carry a high degree of probability. Proof beyond
reasonable doubt does not mean proof beyond the shadow of a doubt. The law would
fail to protect the community if it admitted fanciful possibilities to deflect the cause of
justice. If the evidence is so strong against a man as to leave only a remote possibility
in his favour, which can be dismissed with the sentence “of course it is possible, but
not in the least probable”, the case is proved beyond reasonable doubt, but nothing
short of that will suffice.”‟

[19] The combined version of the appellants is that TS consented to
both of them fondling her, kissing or sucking her breasts and eventually,

the first appellant having sexual intercourse with her. All this happened in
the full glare of all three. This is notwithstanding the fact that the first
appellant had a secret relationship with TS, who is her cousin. The second
appellant did not know of this relationship. If both TS and the first
appellant were so desperate to keep this relationship a secret, is it
probable that she would consent to the first appellant having sexual
intercourse with her, in full view of the second appellant? The answer
should be no as this would be a give-away. Another intractable question
is whether it is probable that the first appellant would allow the second
appellant to fondle and kiss his girlfriend? Furthermore, is it probable that
the complainant would act in this manner whilst her boyfriend was
watching? This sounds not only inherently improbable but incredulous.
As it was stated in Mlambo (supra) the state‟s evidence is to my mind, „of
such a high degree of probability that the ordinary reasonable man, after
mature consideration, can come to the conclusion that there exists no
reasonable doubt that the accused has committed the crime charged‟.

[20] Another hurdle which lay in the appellants‟ way is that the regional
magistrate made strong credibility findings in this matter. He found TS,
Engelbrecht and Dr Lombard to be credible and reliable witnesses. The
regional magistrate was not impressed by the two appellants. Evidently
this finding was based on his observations of all the witnesses who
testified before him. The appellants have not demonstrated that the
regional magistrate was demonstrably wrong on the credibility and
factual findings which he made.

[21] This Court held as follows in S v Pistorius 2014 (2) SACR 314
(SCA) para 30:

„It is a time-honoured principle that once a trial court has made credibility findings an
appeal court should be deferential and slow to interfere therewith unless it is
convinced on a conspectus of the evidence that the trial was clearly wrong (R v
Dhlumayo & Another 1948 (2) SA 677 (A) at 706; S v Kebana [2010] 1 All SA 310
(SCA) para 12.‟
This is so because of the fact that as the trial court was „steeped in the
atmosphere of the trial‟ it had the advantage of observing the witnesses as
they testified which the appeal court never had.

[22] Despite my diligent search I have not been able to find any
demonstrable or clear error on the part of the trial court to justify
interference with its credibility findings. Nor was one suggested to me by
counsel. To the contrary, the record proves that the trial court was correct
in its credibility findings. Given the conspectus of the evidence, I am
unable to find that the trial court erred in finding that the appellants‟
versions are so inherently improbable as not to be reasonably possibly
true. It follows that the appeal has no merit.

[23] In the result, the appeal is dismissed.

_________________

L O BOSIELO

JUDGE OF APPEAL

Appearances:
For Appellant
:
D Filand

Instructed by:
Hassan & Associates; Cape Town

Phatshoane Henney, Bloemfontein

For Respondent
:
E Kortje

Instructed by:

Director of Public Prosecutions; Cape Town

Director of Public Prosecutions, Bloemfontein