Recent Case: Law of evidence

• Citation: (2023) 36 SACJ 329
• DOI: https://doi.org/10.47348/SACJ/v36/i2a8
• Published date: 14 November 2023
• Pages: 329-340
• Author: Visser, J.
• Date: 14 November 2023

Law of Evidence

JO-MARÍ VISSER

University of the Free State

1 Judicial treatment of evidence in rape cases

In S v SJ 2023 (1) SACR 380 (ECB), the Eastern Cape local division of

the high court in Bhisho was cal led upon to decide an appeal against

convictions and sentences imposed in the Zwelitsha regional court. T he

appellant, the complainant’s biological father, was charged with and

convicted of ve counts of rape, allegedly committed between 2013

and 2016, when the complainant was 18 to 21 years of age (atpara [1]).

At trial, the complainant testi ed that the appellant had raped her

vaginally with his penis several times during the four-year period,

including once when her half-sister visited her. She testied that he

had waited until her half-sister was asleep before raping her again. The

rapes continued until she eventually reporte d the matter to her maternal

aunt, who arranged for police intervention and medical examination

(atparas [3]-[7]). During cross-examination of the complainant, she

was confronted with the information that she had indicated in her

police afdavits that the appellant raped her on 23 July 2016. Since she

had categorically stated in her examination-in-chief that the appellant

had not raped her in July of that year, she conceded to having made a

mistake in failing to point this out in her testimony (atpara [8]).

The complainant’s half-sister, 15-years-old at the time of providing

testimony in the case, conr med her visit with the complainant and

explained that on the night in question, she was pretending to be

asleep, and witnessed the appellant raping the complainant. She

testied that she heard the complainant ask the appellant to stop, and

the appellant threatening to assault the complaina nt (atparas [10], [19]).

The maternal aunt of the complainant also testied and conrmed that

the complainant had sent her a text message in which she revealed her

father had been raping her (atparas [11]-[12]).

The medical evidence in the case was provided by the physician

from the relevant hospital where the complainant was examined.

The medico-legal examination report indicated no visible bruising

and conrmed that the complainant’s hymen had been perforated

(atpara[9]).

The appellant testied and denied al l allegations against him, in sisting

that the claims of rape had been fabricated by the complainant and her

aunt, ostensibly after a quarrel had broken out between himself and

the complainant (atparas [13], [16], [18]).

Recent cases 329

https://doi.org/10.47348/SACJ/v36/i2a8

(2023) 36 SACJ 329

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