The Pretoria high court has overturned an Ekurhuleni businessman’s rape conviction, citing intoxication-induced memory gaps in the complainant’s evidence.
The court also raised concerns about the woman accepting R23,000 from the alleged rapist’s brother a day after the incident.
Last week, the court overturned Pule Mokou’s conviction and sentence handed to him by the Benoni magistrate’s court in February 2023, claiming the magistrate erred in convicting him beyond reasonable doubt.
Delivering judgment last Thursday, judge FMM Reid said the Benoni court should have examined the woman’s evidence, as it was fraught with inconsistencies. The high court found the woman’s memory was poor and her account contained inherent improbabilities.
The matter stems from a 2017 incident in which the woman claimed that Mokou, his girlfriend and another man known as Lucky had assaulted and kidnapped her outside a golf club where they had all been drinking.
She said they took her to Mokou’s house, where she alleges she was raped by both men.
However, Mokou and his girlfriend rejected this, saying they slept together in their bedroom while the complainant was in the garage with Lucky. His girlfriend corroborated his claim that he did not leave their bedroom.
Mokou also told the court that he and the complainant were previously in a relationship.
Judge Reid said the state bears the onus of proving the guilt of an accused beyond a reasonable doubt.
“A court does not look at the evidence implicating the accused in isolation; it must consider all the evidence, both for the state and for the defence.”
The woman had also received R23,000 from Mokou’s brother after the incident. The evidence regarding this payment was contradictory, said Reid.
“The magistrate a quo ought to have found that this gave the complainant a possible motive to falsely accuse the appellant, particularly given that the appellant is a businessman of means."
Reid found that Mokou’s version was consistent.
“The objective medical evidence did not support her version, and her conduct after the incident, including accepting money and consuming alcohol and food at the appellant’s home, was inconsistent with that of a person who had been brutally raped.”
Reid found the magistrate who presided over the matter should have found that the state did not discharge the onus of proving Mokou’s guilt beyond a reasonable doubt.
Reid said the woman had admitted to having consumed alcohol. Therefore, her memory of the events was “conspicuously deficient”.
“The magistrate a quo accepted the version of the complainant, stating that she was ‘not evasive, hesitant and contradictory in her evidence’ and that her evidence was ‘by and large corroborated by the defence except the question of kidnapping and rape’. With respect, I am of the view that the magistrate misdirected himself in this regard materially."
Reid said during cross-examination the woman would say, “she did not know” or “I could not remember” what happened.
The record revealed she had said this on no less than 18 occasions.
“The magistrate appears to have overlooked the significance of these deficiencies. When a witness’s memory is so impaired, the reliability of her account is necessarily called into question. The fact that a witness cannot remember crucial details is not a neutral factor; it goes to the very core of the reliability of the evidence.”
Reid said her version of how she was allegedly kidnapped from the golf club was inherently improbable, as there were other people there.
Sowetan
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