THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 859/10
In the matter between:

BONGI BIYELA

Appellant

and

THE STATE

Respondent

Neutral citation:  Bongi Biyela v The State (859/10) [2011] ZASCA 43
(29 March 2011)

Coram:
CLOETE JA, SHONGWE JA AND TSHIQI JA

Heard:
14 February 2011

Delivered:
29 March 2011
Summary:
Rape – Sexual intercourse with a girl under the age of 16 –
Apparent age pleaded – Actual age not proven by the state – Injuries also not

conclusive – Court faced with two mutually destructive versions – No basis to
reject accused’s version.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Bertelsman and
Matojane JJ sitting as court of appeal):
The appeal succeeds. The conviction and sentence are set aside.

JUDGMENT

TSHIQI JA (CLOETE AND SHONGWE JJA concurring)

[1] This appeal concerns two issues.  The first issue is whether the sexual
intercourse between the appellant and the complainant was consensual. The
second issue is whether the appellant had the requisite mens rea when he
engaged in sexual intercourse with the complainant, a girl under the age of 16
years.1

[2] The appellant was charged in the Regional Court, Pretoria, for having
raped the complainant, alleged to have been a 15 year old girl. He pleaded
not guilty.  He admitted in terms of s 220 of the Criminal Procedure Act 51 of
1977, that he did have sexual intercourse with the complainant but pleaded

1 The age of consent is 16 years. The Sexual Offences Act 23 of 1957 regulated the position
at the time of the offence.

that it was consensual and further that he was under the impression that she
was between 18 and 20 years old.

[3] The appellant was convicted and sentenced to 15 years’ imprisonment.
He appealed to the North Gauteng High Court against both the conviction and
sentence. His appeal (per Bertelsman and Matojane JJ) was dismissed. In
dismissing the appeal, the court below tabulated five factors that in its view,
cumulatively dispelled any doubt on the reliability of the evidence of the
complainant.  These will be considered at length herein below. The present
appeal is brought with leave of this court.  Because the appellant was in
custody and because there appeared to have been a miscarriage of justice,
the President ordered that the record of the proceedings and the heads of
argument in the court below should be lodged with this court immediately and
could be supplemented in due course if necessary. The appeal was argued
on 14 February 2011. This court upheld the appeal, set his conviction and
sentence aside and stated that the reasons would follow. The order was
issued urgently because it became apparent that the continued detention of
the appellant, as a result of the present conviction and sentence, was not in
the interests of justice.2 This judgment contains the reasons for the order.

[4] The sexual intercourse between the appellant and the complainant
took place in an outside room at the appellant’s home in Mamelodi West,

2 In certain instances it becomes necessary to grant an order prior to giving judgment when
the outcome of the appeal is not in doubt and the interests of the litigant demand an
immediate resolution.  See: AD & another v DW & others (Centre for Child Law as amicus
curiae; Department for Social Development as intervening party) 2008 (3) SA 183 (CC);
Arwah Abdi & another v Minister of Home Affairs & others (734/2010) [2011] ZASCA 2
(15 February 2011).

Pretoria, in the early hours of the morning, on 29 June 1997 around five am.
The previous evening both the appellant and the complainant had gone to two
night clubs together with four other friends, in the appellant’s motor vehicle.
The four friends were: two females, the complainant’s cousins and two men,
their respective boyfriends. There was no existing intimate relationship
between the appellant and the complainant when they left their respective
homes in Mamelodi. The complainant had joined the group with the blessing
of her aunt, her mother’s sister, Sharon who had asked the two cousins to
take care of her. She was allowed entrance into both clubs and was not
questioned about her age.

[5] In communicating what had occurred from the time the group arrived at
the second club until the sexual intercourse took place, the complainant was
at pains to paint a picture suggesting that she was not acquainted with the
appellant and had no desire to do so. She stated that at the second club she
simply sat and talked to her cousins. According to her nothing happened
between her and the appellant. According to the appellant, on the other hand,
a close relationship started developing between him and the complainant at
this club. He stated that they talked and danced and that he even professed
his love for her. His version was corroborated by one of the state witnesses
Given Makhanya, the boyfriend of one of the cousins and was further
corroborated by Tony Letswalo, the other cousin’s boyfriend, who testified as
a defence witness. Her version was not corroborated.

[6] Makhanya’s version of what happened at the club was as follows:

‘We then entered into the said nightclub and then we started to jive and then we were
seated at that time two by two.
Just a minute. At what time did you leave Jamini? --- We did not in fact stay at Jamini
because the girls said that the place was boring.
Yes, and then? --- And then we grooved, enjoy ourselves and Bongi was busy then
speaking to this Refilwe and she had all the time she was just enjoying herself
dancing, Bongi embraced her’.

[7] Letswalo’s version was as follows:
‘Bongi and Refilwe enjoyed themselves. They were talking and dancing with each
other.  They even hugged each other’.

[8] After leaving the club, according to Makhanya and Letswalo, the
complainant requested to drive the appellant’s motor vehicle. They did not
accede to her request and Makhanya drove the vehicle. This in itself is
unusual if her version is true. It is unusual that she would request to drive a
vehicle belonging to someone she met on that day for the first time and with
whom she was not acquainted. Her behaviour in that regard is rather
consistent with the version by Makhanya and Letswalo which suggests that on
the contrary, she was close and comfortable with the appellant at the club.

[9] It is not in dispute that after the group arrived back in Mamelodi, the
two cousins and their boyfriends alighted and both the appellant and the
complainant remained in the vehicle. They are the only witnesses who could
testify as to what occurred thereafter.

[10] According to the complainant, she was asleep in the car when they
travelled back to Mamelodi. She did not see the appellant dropping off her
cousin Sharon and her boyfriend but only woke up when the appellant was
dropping off the second couple in Mamelodi West. She asked them not to
leave her in the car with the appellant and asked the appellant to drop her at
her home in Mamelodi East. The appellant refused and said that he would not
be coming back to Mamelodi West to drop off the couple but that he intended
to drop the complainant at her home in Mamelodi East at a later stage.

[11] The appellant’s home was in Mamelodi West. If he had indeed
intended to drop the complainant at her home in Mamelodi East, and then go
back to his own home, he would have had to go back to Mamelodi West. It is
incomprehensible how he would have said that he would not return to
Mamelodi West after dropping off the complainant. It is also strange that both
her older cousins, who had been asked to take care of her, left her in the car
alone with the appellant and did not question the fact that the appellant
dropped them off first in Mamelodi West. The probable inference, I dare to
venture, is that already that stage, it was clear to everyone in the group that
the complainant chose to remain with the appellant in his motor vehicle.

[12] After the appellant had dropped off the second cousin and her
boyfriend, the complainant was left alone in the vehicle with the appellant.
They proceeded to a petrol filling station. According to her it was at the filling
station that he told her that he could not take her home because he had to go
to work. She stated that there were petrol attendants at this filling station and

also agreed in response to the prosecutor that she did not inform them that
the appellant did not want to take her home. Apart from the fact that she did
not raise the appellant’s change of heart with any of the petrol attendants, she
also did not ask the appellant to leave her there or simply get out of the car. It
does not seem that she made an issue at all about the appellant’s sudden
change of heart. Her behaviour is inexplicable. She had the perfect
opportunity to either leave his car and seek assistance or shelter. Strangely,
she did neither.

[13] After they left the filling station they proceeded to the appellant’s home.
She stated that at the gate she again asked the appellant to take her home.
He refused and told her he would take her home in the morning. Her account
of what occurred at the gate, and why she did not escape whilst the appellant
was busy opening the gate, leaves one with a distinct impression that she did
not intend to do so.  At best her evidence in that regard is vague.

[14] Initially, she stated that the appellant stopped her whilst she was trying
to get out of the car by holding her and took out a knife and stated his
intention to use it if she did not co-operate. When questioned whether they
were in or outside the car at this stage she stated that they were inside the car
and she was trying to get out. It is not clear what she meant when she said
she was trying to get out of the car. She stated that he turned around and
grabbed her hand. She then stated that she then got in the car and the
appellant locked it. It is not clear at what stage she got out of the car, because

earlier on she had stated that they were not outside but inside when he
restrained her from trying to get out of the car.

[15] Her further evidence is that the appellant left the car and went to open
the gate. Her evidence on why she did not open the door and run or scream
for help is again confusing and vague. She initially stated that after he left the
car to open the gate he did not lock the doors again. When asked what she
did when the appellant was opening the gate she again stated that she was
trying to get out of the car. Later on she suggested that the car was locked.
She was clearly undecided whether to state that the door was locked or
unlocked.

[16] Even if one accepts in the complainant’s favour that the doors were
locked while she remained in the car, there is no explanation why she failed to
simply open the doors and get out. There was no evidence that it was not
possible to open the locked doors from inside. The only inference is that she
simply sat in the car and failed to utilise yet another opportunity she had to
escape from the car, or alert neighbours or the occupants inside the
appellant’s home that she was being held against her will.  Her evidence does
not explain this failure.

[17] Another opportunity for the complainant to escape or seek assistance
presented itself when according to the complainant the appellant left her alone
in the room and went to an outside toilet. Again her evidence is vague. She
initially stated that she tried to scream. When asked how she tried to scream

she stated that she did so by shouting ‘Help.’ This she did whilst standing
somewhere in the room. She could not explain why she did not go to open a
window and scream. Her response was that she did not think of doing so.
She was confronted with a version she had given in another court where she
had stated that she did not scream because she had flu (it seems that the
proceedings had commenced before a different magistrate and had started de
novo before the one who convicted the appellant). She could not explain this
contradiction but simply responded that she did scream.

[18] What is uncontroverted is that the lights in the main house were on
when the appellant parked the car inside the yard. The question why the
complainant did not regard this as a possible sign that there were people in
the main house, who could possibly come to her assistance, remained
unresolved.

[19] Then there is the layout of the appellant’s home. The uncontroverted
evidence of the appellant suggests that the yard was small and that his room
was close to the main house. His room was also close to another room
occupied by his cousin. These rooms were separated by a toilet which was
built in between the two rooms and the doors of these rooms faced each
other. At such a close proximity, either the cousin or the mother would have
heard the complainant had she attempted to seek their attention.

[20] The complainant left the appellant’s home that same morning. The
appellant gave her money for transport and she left for home. After she

reported that she had been raped by the appellant, she was accompanied to
the police station and was referred to Dr Rubeira, a district surgeon. The
appellant was later arrested at his home.
[21] Dr Rubeira testified during the trial and was cross-examined at length
on her clinical findings.  Her completed medical report (J88) reflected ‘age or
apparent age’ as ’15 years’ and noted the complainant’s general health,
physical and mental state as follows:
‘Build was consistent with age. Mental state-depressed. General health-good’.

[22] It further stated that the following was noted on examination:
‘Urethral area red. Hymen torn & bulging. Post fourchette with abrasion. Digital
exam-painful. Patient bleeding. The above injuries are consistent with those caused
by forced entry’.

In his judgment the magistrate relied on the contents of the J88 and the
evidence of Dr Rubeira to support his conclusion that the complainant was
indeed raped. In doing so the magistrate misconstrued the evidence of the
doctor in two respects. The first area of misdirection pertains to the age of the
complainant. The age of the complainant was crucial because the appellant
was faced with a competent verdict of having had sexual intercourse with a
girl under the age of sixteen years ie ‘statutory rape’.3 From the onset the
appellant disputed the age of the complainant. His legal representative
informed the court that he would testify that her apparent age was 18 to 20
years. He confirmed this to the court.

3 Section 261 (1) of the Criminal Procedure Act 51 of 1977.

[23] In his summation of this evidence, the magistrate states that ‘she
indicated that she observed that this youngster was 15 years of age, and not
only that, she indicated further that the 15 years she observed, or which was
revealed to her was [consistent] with the build of the complainant’. With
respect to the magistrate, this was not the evidence of the doctor. What
occurred was that the J88 was introduced into evidence. The doctor was
taken through what she had recorded in the J88. No attempt was made to ask
her to explain what she meant pertaining to the age vis-a-vis the bodily frame
of the complainant. She was also not specifically asked to express her opinion
on her age. No other expert evidence was led to verify her age. Instead the
learned magistrate persisted with his view, based on his observation that the
complainant was ‘small’ and ‘frail’. In this regard he erred.

[24] Where proof of age is essential to the guilt of an accused, the court
has to be satisfied beyond a reasonable doubt on this score.4 In terms of s
337 of the Criminal Procedure Act5 the court can estimate the age of a person
in criminal proceedings only if no or insufficient evidence is available at the
proceedings. In this matter s 337 was not applicable because the district
surgeon was available.6

[25] What posed a further complication in this matter was the fact that the
complainant was close to attaining the age of 16. She was born on 8 August

4 R v Matipa 1959 (2) SA 396 (T); S v Matseletsele 1976 (3) SA 821 (O); DT Zeffert, AP
Paizes and A st Q Skeen: The South African Law of Evidence, p398
5 Section 337 substituted by s 99(1) of Act 75 of 2008; see also ss 14 – 16 of the Child Justice
Act of 2008; S v Reynders 1972 (1) SA 570 (C) at 572B; S v Swartz 1970 (2) SA 240 (NC)
6 S v Tsankobeb 1981 (4) SA 614 (A) at 629B.

1981 and was thus 15 years and two months old on 29 June 1997.  She was
clearly a border-line case.
[26] Proof of the complainant’s date of birth was not the only problem. The
other bone of contention was her apparent age. The appellant persisted in
stating that the complainant appeared to him to be older than 16. Both
Makhanya and Letswalo also persisted in this fashion. Makhanya insisted that
the complainant appeared to be 18 years old to him at the time. Even when
the magistrate repeated his assertion and stated that in his observation ‘she is
frail. She cannot be 18, 19. I saw her this year in 2001, not in 1997 when she
was far much younger’. Makhanya responded to this assertion and stated
that:
‘But according to my judgment as I saw her there she appeared to me to be 18’.

Letswalo, also testified that he estimated the complainant’s age to be 17 to 20
years. In addition to this he stated that she was wearing make-up ie mascara
and red lipstick. His further evidence, apparently to support his view, was that
his own girlfriend was 19 years old and the night club only allowed 18 year
olds entrance.

[27] Both these witnesses found it necessary to mention that the
complainant had asked to drive the car after they left the second night club to
drive back to Mamelodi. Her request would have suggested to the appellant
that she was old enough to have acquired a driver’s license or at least a
learner’s license.

[28] The magistrate further criticised the fact that Letswalo’s evidence,
stating that the complainant was wearing make-up, was not put to the
complainant during her cross-examination. This criticism was unwarranted.
The appellant’s legal representative did not anticipate that Letswalo would
testify. He reserved the right to call him only if the State chose not to call him,
and that is how Letswalo ended up testifying as a defence witness. At the time
he testified, the complainant had already testified.

[29] An accused may escape liability for engaging in sexual intercourse with
a girl under the age of 16 years if he can prove that he was deceived as to the
age of the girl; either by the girl or by a person in whose charge she was.7
The deception may be by words, conduct or appearance (R v T).8 The
accused must prove on a balance of probabilities that he was deceived,
whether inadvertently or fortuitously.9

[30] Several factors must, in my view, be taken in favour of a finding that
the appellant was deceived about the complainant’s age. The person in
charge of the complainant on the day permitted her to go to a night club with
older girls and their boyfriends. She wore make-up and she was allowed entry
into both clubs. In the club she enjoyed herself, danced and kept the company
of the appellant. She asked to drive the appellant’s motor vehicle. Her
appearance and behaviour, cumulatively, could quite easily have deceived the

7 Section 14(2)(c) of the Sexual Offences Act 23 of 1957 currently the Criminal Law (Sexual
offences and Related matters) Amendment Act 32 of 2007, applies.
8 1960 (4) SA 685 (T) at 687A.
9 R v V 1957 (2) SA 10 (O); S v F & others 1967 (4) SA 639 (W) at 641D; JRL Milton, MG
Growling, S Hoctor: South African Criminal Law and Procedure vol III, statutory offences
paras E3 – 6 and E3 – 12.

appellant. There is therefore no basis to reject his evidence that he was
deceived.

[31] The other misdirection by the magistrate pertains to the nature of the
injuries sustained by the complainant. In his further analysis of Dr Rubeira’s
evidence the magistrate states that ‘but she affirmed her observation that the
injury will only be caused by forceful penetration’. That is not what the doctor
said.  Her testimony was the following:
‘Now doctor, assuming hypothetically of course that there was penetration which was
not forceful, would you still have the same abrasions? --- You could. You could have’.

She confirmed this during cross-examination and stated:-
‘You already indicated that one cannot make the only inference that there was forced
entry in this specific instance.  Is that correct? --- That is correct, ja’.

The finding by the magistrate that the injuries could only have been caused by
forceful penetration was therefore a fundamental factual misdirection.

[32] Did the state discharge its onus? I have already dealt with the evidence
of what occurred between the complainant and the appellant in the second
night club. The complainant’s evidence remained uncorroborated whilst the
appellant’s evidence was corroborated by Makhanya, the second state
witness, and further by Letswalo. Their evidence is at odds with that of the
complainant.

[33] I have also alluded to the inexplicable failure of the complainant to
seize at least three opportunities to escape or ask for assistance if she wished
to do so. The first opportunity was at the filling station, the second one at the
gate at the appellant’s home and the third one in the room when the appellant
had gone outside leaving her alone. The evidence of Dr Rubeira pertaining to
her age and her injuries does not assist the state either.

[34] This then leads me to the issue of the knife which she introduced into
her evidence obviously to show coercion. The appellant denies that he was in
possession of a knife. Both Makhanya and Letswalo deny seeing a knife and
Makhanya said specifically that had the appellant produced a knife he would
have seen it.  Even on her own evidence, nothing much was done with the
knife. It was only shown to her with a threat that it might be used if she did not
co-operate.  Again she is a single witness in this regard.

[35] I now turn to the issue that arose during Makhanya’s cross-examination
by the defence, that the complainant had falsely incriminated the appellant for
fear of being reprimanded by her mother. Makhanya stated that he had been
told by Letswalo that the complainant had not wished to lay a charge of rape
against the appellant but did so because her mother was strict and also
because it was the first time she went out until late. It should be recalled that
Sharon, her aunt, had asked the two cousins to take care of the complainant.
It should also be recalled that these very cousins saw her dancing with the
appellant. They also left her in his car after they alighted. Letswalo was called
by the defence and he confirmed that the complainant had made the

statement to him. This evidence was not, as I have already stated, anticipated
by the defence, hence it was not put to the complainant when she testified.

[36] The magistrate rejected this evidence. His reasoning for rejecting it
boils down to this.  If the complainant was indeed scared that her strict mother
would scold her she would not have told Sharon, her aunt, that she had been
raped. This implies that if indeed she had consented to the sexual intercourse,
she would have kept quiet about it and her mother would not know. This
reasoning overlooks several important considerations. The obvious one is
exactly what the complainant conveyed to Letswalo and it is that the
complainant had to offer an explanation for coming back home the following
morning. In addition, her older cousins had left her in the appellant’s motor
vehicle and she probably feared that they would talk about it. There are other
countless reasons why a young virgin who, according to the evidence, had not
used protection would rather lie to her parents. These range from fear of
pregnancy to infection. In this matter it is not even necessary to speculate
because the complainant had confided in Letswalo why she incriminated the
appellant.

[37] The conclusion by the magistrate that the complainant had no reason
to commit perjury and that her evidence must therefore be true, was yet
another misdirection on his part. In R v Mthembu10 this approach was held to
be wrong. The court stated:
‘The magistrate in his reasons for judgment obviously takes the view that if the
evidence of the traffic inspector is accepted then the accused was guilty of driving to

10 1956 (4) SA 334 (T) at 335H–336B; Albert Kruger Hiemstra’s Criminal Procedure p24 – 4.

the danger of the public. In coming to the conclusion that that evidence is to be
accepted he said that the inspector either saw the accused drive as he says or he
has come to court to commit perjury. That is not the correct approach. The remarks
of the late MILLIN, J., in Schulles v Pretoria City Council , a judgment delivered on
the 8th June, 1950, but not reported, are very pertinent to this point; he says:
‘It is a wrong approach in a criminal case to say ‘Why should a witness for the
prosecution come here to commit perjury?’ It might equally be asked:
“Why does the accused come here to commit perjury?’ True, an accused is interested
in not being convicted, but it may be that an inspector has an interest in securing a
conviction. It is, therefore, quite a wrong approach to say ‘I ask myself whether this
man has come here to commit perjury, and I can see no reason why he should have
done that; therefore his evidence must be true and the accused must be convicted.’
The question is whether the accused's evidence raises a doubt”’.

[38] The court was also faced with a further dilemma. Makhanya was a
state witness. He contradicted the complainant’s evidence in all material
respects. The consequence of this was that the court was faced with two
mutually destructive versions of the two state witnesses whilst the version of
the defence, on the other hand, was corroborated by one of the state
witnesses and by a defence witness. This left the court with no option but to
accept the version of the appellant. In light of the above considerations there
was no reason why the magistrate rejected it and also no basis for the finding
by the court aquo that the appellant’s version was not reasonably possibly
true.

[39] It was in view of the above considerations that the appeal was upheld
and the conviction and sentence were set aside.

______________________
Z L L Tshiqi

Judge of Appeal
APPEARANCES
APPELLANT:
B Booysens

Instructed by Schürmann Joubert,

Pretoria;

Honey Attorneys, Bloemfontein.

RESPONDENT:

P Vorster

Instructed
by
the
Director
of
Public
Prosecutions,

Pretoria.