Man who appealed against rape conviction twice cleared by SCA

A man slapped with a hefty jail term for raping his ex-girlfriend has had both his conviction and sentence overturned by the Supreme Court of Appeal (SCA) after two lower courts rejected his appeal despite “unsatisfactory” evidence by his accuser.

Abel Sekoala and his friend Ramasa Johannes Rathebe were both found guilty on 11 counts of rape in the Pretoria North regional court and each sentenced to 10 years behind bars, with three years suspended.

They sought leave to appeal in the regional court and when this was dismissed, successfully petitioned the Pretoria high court to appeal “only against their convictions on all counts”.

The high court not only dismissed their appeal but increased their sentence to 20 years each.

This stemmed from a 2010 incident that happened at Sekoala's home. Summarising the facts, justice Yvonne Mbatha said Sekoala and the complainant had been in a relationship for a couple of years before it ended in 2009. They saw each other again in February 2010 when the woman visited Sekoala.

A day before the incident, “a telephonic conversation took place between the complainant and Rathebe. It was disputed as to who called who and who invited the complainant to Sekoala’s house,” Mbatha said.

“It was also in dispute whether later on that day Sekoala called the complainant or whether she called him. Nonetheless, in the early evening on the day of the incident, the complainant arrived at the place of residence of Sekoala.”

According to the state, the complainant said Sekoala invited her to his house to discuss their relationship and on her arrival, asked her to cook pap for him as the side dishes were already prepared.

Sekoala then asked to borrow money from her and when she told him she only had R100, told her that “if she wanted to remain in a relationship with him she should have brought more money with her”.

“Sekoala then grabbed her by both arms, and pushed her out of the house. She cried in pain. On hearing her screams Rathebe intervened and discouraged Sekoala from chasing the complainant away, as it was late at night.

“Later, the complainant and Rathebe accompanied Sekoala to drop off his friends at their homes with his motor vehicle. According to the complainant, the main reason for Sekoala’s aggression was that she did not have sufficient money on her to give him.”

When they returned, Sekoala told the woman he no longer wanted a relationship with her and that in fact, Rathebe was the one who wanted her. He then went to his bedroom and called Rathebe there to discuss something before retiring for the night. 

Shortly after that announcement, a naked Sekoala apparently returned from his bedroom and forcefully took the woman to another bedroom where he raped her and then called Rathebe to do the same, while holding her down.

“The complainant estimated that she was raped by each of them about five or six times. At the end of her ordeal, which lasted until sunrise, Sekoala took her to his bedroom where he continued to rape her without a condom.

“Thereafter, Sekoala admonished her not to tell anyone about what they did to her. The admonishment was repeated again in the presence of Rathebe. She said that she had no choice but to agree not to tell anyone, because she was locked in, as the keys were hidden in the house. The following morning when the housekeeper arrived she managed to escape.”

The woman said she was then instructed to take a taxi to town and did not go to a police station. On her way home she “cried a lot because she loved Sekoala”. A day later, she decided to open a case against the duo as she “felt she could not live with what had happened because it would hurt her for the rest of her life”.

Corroborating her version was her neighbour, Susan Baloyi, who was aware of the relationship and revealed she had been called by the woman three times, first to let her know she was going to see Sekoala, then to inform her he was chasing her away and finally to report the alleged incident to her.

Sekoala denied the allegations. He claimed the woman had called to inform him she was on her way to his home, to his surprise.

“The uninvited complainant arrived at his residence and found him in the company of his two friends and Rathebe. They were all sitting outside his house. The complainant did not greet them but went straight into the house.

“He immediately followed her into the house and asked what she wanted. She told him she wanted to talk about their relationship as they could not end it the way they did. On entering the house Sekoala unequivocally told the complainant she was not welcome and instructed her to leave his house.”

Rathebe intervened and reprimanded Sekoala. Sekoala did not dispute that the trio later drove his friend's home and that he called Rathebe to his bedroom when they returned but said it was to witness him telling the woman their relationship was over.

According to him, the tearful woman eventually accepted the end of the relationship but asked for “one thing”, that they have sex one last time. The next morning, she did the household chores and asked if there was anything else she could do for him.

On the issue of the money loaned to Sekoala, he claimed that he asked for R60, which she gave him, and then another R100, which she promised to bring to him at his workplace the next morning. To his surprise, he later learnt she had opened a rape case against him.

Summarising the regional and high courts' judgments, Mbatha said “the trial court accepted the version of the complainant against their versions. It also accepted the evidence of Baloyi, as corroboration of the complainant’s version. In addition, it found that the medical evidence confirmed that the complainant had been raped.”

In his appeal, Sekoala submitted that “his guilt was not proven beyond a reasonable doubt because the trial court misdirected itself” by finding that the woman's version was not contradicted, “failing to approach the evidence of the complainant with caution, as it was the evidence of a single witness” and ignoring his version of events.

The state said the courts had treated the woman's evidence with caution and that “both the trial court and high court were correct in finding that the state had proved Sekoala’s guilt beyond a reasonable doubt”.

The SCA said it was not persuaded by this.

“The fact that the trial court did not allude to this trite principle nor evaluated the evidence in line with the principle, confirms that it was not applied. In fact, the trial court failed to assess the factual evidence,” it said.

“The trial court restated the evidence in great detail but failed to evaluate it. It also failed even to establish if the complainant might have any bias adverse to Sekoala and his erstwhile co-accused. The trial court should not have ignored the fact that Sekoala and the complainant were in a love relationship and that the complainant was not ready to part ways with him. The evidence shows that the complainant was a jilted lover who still had very strong feelings for Sekoala.”

The court also noted that Rathebe's “unchallenged evidence” was ignored by the trial court, despite the state prosecutor conceding “that there was nothing that he could challenge on the credibility of Rathebe as a witness”.

The SCA also challenged the woman's claim that she was raped until sunrise as this “could not have been humanly possible”.

“The exaggeration of her evidence became apparent when she was interviewed for a pre-sentencing report where for the first time she proffered that condoms were stuffed in her vagina. This never appeared in her statement to the police, in her report to the doctor, evidence-in-chief nor under cross-examination.”

Mbatha said that while she was mindful of the trauma faced by sexual assault victims, “the inconsistencies, the contradictions and the overall unsatisfactory nature of the evidence by the complainant had to be carefully examined”.

“In that regard the trial court erred in convicting Sekoala on evidence that was unsatisfactory in so many respects and ultimately unreliable. Equally, the high court, in finding that the complainant was consistent and frank and in dismissing the appeal, erred.”

Sekoala's appeal was upheld and his conviction and sentence set aside.

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