The complainant’s testimony was considered inadmissible.
A North West man who had been serving an 18-year prison term for attempted rape is set to walk free after his conviction and sentence were overturned.
April “Belele” Bunze was initially found guilty on 4 August 2021.
Rape case background
The complainant, who lived two houses away from Bunze, had testified that he often drank alcohol with her mother.
She told the court that Bunze sent her to buy a cigarette, and when she returned, he raped her.
She further stated that he threatened to kill her if she revealed what had happened.
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The girl’s mother took her to a clinic the following day after an aunt noticed she was struggling to walk.
The child initially claimed she had been injured by a tree branch.
Under cross-examination, the complainant, who was aged 13 at the time of the trial, later admitted she lied about telling her family that Bunze had attempted to rape her, saying she feared for her family’s safety.
Mother’s testimony and medical report
Her mother testified that on 1 May 2011, she had been resting in her bedroom while her daughter played outside.
Upon returning home, the child claimed she had been playing.
The following day, the mother suspected something was wrong.
On checking, she found injuries and instructed her daughter to remove her blood-stained clothing and place it in a plastic bag.
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She then took her to the clinic, although the girl still insisted that a tree branch had injured her.
The clothing was later handed to the police.
Dr David Leburu, who examined the child, reported that the medical findings did not indicate signs of rape.
Appeal arguments
In his appeal before the North West High Court in Mahikeng, Bunze argued that the trial magistrate overlooked major inconsistencies in the complainant’s testimony.
He said the medical report did not support the allegations, and he also challenged the attempted-rape conviction, saying he was not given prior warning that such a verdict was possible.
Bunze described his 18-year sentence as “shockingly inappropriate”.
His defence team also argued that the magistrate failed to properly determine whether the young witness understood the duty to tell the truth, making her evidence inadmissible.
North West High Court ruling
Acting Judge Winnie Malane found that the trial record clearly showed the complainant did not grasp the significance of taking an oath.
Malane highlighted that the lower court had also not established whether she understood the difference between truth and lies.
She emphasised that for a witness’s evidence to be reliable, they must be sworn in or be properly admonished.
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According to the judge, the trial court’s failure to conduct a full inquiry as required by Section 164 of the Criminal Procedure Act (CPA) left the complainant’s evidence without proper legal foundation.
She found that admitting such evidence would be prejudicial to Bunze and render his trial unfair.
Remaining evidence
With the complainant’s testimony excluded, only the evidence of the mother, the aunt, and the medical findings remained.
Malane said the state had to prove that this remaining evidence was strong enough to secure a conviction beyond reasonable doubt.
She pointed out that although the mother said the clothing was given to the police, there was nothing to show the items were ever forensically tested or that DNA results existed.
“The evidence of the mother was not consistent with the evidence of the complainant,” the judgment reads.
“This evidence on its own is not sufficient and cannot be enough for a conviction to stand.
“One must also be alive to the fact that the report was made only after the intervention of the aunt two days after the incident,” Malane continued.
The court concluded that the conviction and sentence could not be upheld and ruled that the appeal must succeed.
Malane further ordered Bunze’s immediate release.
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