THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case No 156/03

In the matter between:

PETRUS LIEBENBERG

Appellant

and

THE STATE

Respondent

Coram:

FARLAM, JAFTA AND MLAMBO JJA
Heard:

19 MAY 2005
Delivered:
31 MAY 2005

Summary:
Evidence – adequacy of proof - accused raising an alibi

entitled to acquittal if there is a reasonable possibility that

alibi evidence is true.

REASONS FOR JUDGMENT

JAFTA JA/

JAFTA JA:
[1] This appeal was heard on 19 May 2005 and at the conclusion of the
hearing the following order was made:
‘1.
The appeal is allowed
2.
The order of the High Court is set aside and replaced by the following:
(a)
The appeal is allowed.
(b)
The convictions and sentences are set aside.’
It was stated at the time the order was made that the reasons therefor would
follow. These are the reasons.

[2] The appellant was convicted of rape and robbery by the regional court
at Tulbagh. He was sentenced to eight years’ imprisonment for rape and two
years’ imprisonment for robbery. An appeal to the Cape High Court was
dismissed but the appellant was later granted leave by the court a quo to
appeal against conviction to this Court.

[3] As the appellant raised the defence of an alibi, most facts were not in
dispute. It was common cause that the only point in issue was the identity of
the complainant’s assailant.

[4] The facts of the case may be summarised as follows. On 12 May 1995
the complainant (a 47 year old female) was walking alone on a street at
Obiqua Crescent in Tulbagh when she was suddenly grabbed from behind
and a knife was placed on her throat by a male person who threatened to

rape and kill her. The assailant touched her bosom and took a sum of
R157,00 which she had kept there.

[5] The assailant raped the complainant three times and sodomised her
once. He also forced her to perform indecent acts on him. After raping her
and while she was looking for her trousers the assailant urinated on her
before leaving the scene. He left with the money he had earlier taken from
her, her own jacket, a telegram card and a sum of R12,50 which were in the
jacket. The incident occurred at 21h40 and it took about 20 minutes.

[6] The complainant could not find her trousers and she went to her home
dressed only in a T-shirt and underwear. She remained there for about four
hours before she went to the police station to lay a charge. As she did not
know the assailant she gave a detailed description of him to the police. She
said he had a deep rough voice, he was shorter than her in height, dark in
complexion with a handsome face. She further said he had a wing-shaped
nose (‘n vlerkieneus) and a posture which slightly bent forward. Regarding
his clothing, she said he wore a green jersey, a light-coloured pair of
trousers, white running shoes and a small white hat.

[7] At the police station the complainant first spoke to a male officer who
referred her to a female officer for the purposes of obtaining a detailed
statement about the incident. Meanwhile constable Manie Baron had left to
look for the suspect after indicating that he knew the person who fitted the

description given by the complainant. About 15 minutes later and while the
complainant was still making her statement to sergeant Lillian Lottering (the
female officer), Baron came back with the suspect. At that stage the
complainant and Ms Lottering were in an office near the charge office where
Baron had brought the suspect. When the complainant heard the suspect’s
voice, she peeked in the direction of the charge office and identified him to
Ms Lottering as her assailant.

[8] Apart from the complainant’s evidence, the prosecution led evidence
of Ms Lottering, Baron and sergeant Kamfer. They confirmed that the
complainant gave them the description referred to above in respect of her
assailant. They also stated that she arrived at the police station at 07h00.
Baron said he found the appellant lying on a bed and dressed in clothes
similar to those described by the complainant. He said the white running
shoes were placed near the bed. Ms Lottering stated that she visited the
scene with the complainant and they recovered her trousers (mangabroek).

[9] The appellant vigorously protested his innocence from the time he
was arrested. He told Baron that he was in the company of his girlfriend, Ms
Ann Jumat. Shortly after his arrest he demanded that samples be taken from
him for medical examination with a view to determine whether he
committed the offences in question. Saliva and blood samples were taken

but no evidence relating to them was led at the trial. He also demanded that
an identification parade be held but this was not done.

[10] At the trial the appellant denied having been at the scene when the
offences were committed. He called Ms Jumat who confirmed his alibi. She
stated that at about 21h40 she and the appellant were at a place described as
Nico’s place together with other people. They left that place after 22h00 and
went to various other places. She only parted from the appellant at about
01h00, long after the commission of the offences.

[11] The trial court found that the defence version could not be rejected as
false but went on to find that the appellant had the opportunity to leave Ms
Jumat’s company unnoticed and during that time he went to rape and rob the
complainant before coming back to rejoin her. In this regard the trial court
said:
‘Ek verwerp nie sy getuienis dat hy en sy meisie die aand saam was nie, dit doen ek
allermins. Wat ek doen, is dat ek hier bevind dat die beskuldigde laat die aand inderdaad
toe hy by Eerstelaan was, ‘n geleentheid gehad het om vir ‘n tyd lank weg te glip, vir 10
tot 20 minute, en in daardie tyd het hy dan by Obiekwalaan, wat naby die dansplek in
Eerstelaan was, die klaagster verkrag. Ek bevind dus dat sy weergawe met gemak
verwerp kan word, in die lig van die sterk getuienis aan die kant van die Staat.’

[12] The key findings made by the trial court are confusing and to a large
degree ambivalent. On the one hand, it found no basis for rejecting the alibi
evidence and yet it found that in the light of the strong evidence led by the

prosecution, the alibi could easily be rejected, on the other.  It also found
that despite a reasonable possibility of the alibi evidence being true, the
appellant left his companions and went to commit the offences before he
rejoined them.

[13] In my view, there is no factual basis for the findings made by the trial
court. If Ms Jumat’s evidence is accepted, as it should be, it was impossible
for the appellant to have left for the scene, commit the offences and come
back to rejoin his companions. Ms Jumat said the appellant was out of her
sight for about three to five minutes at the stage he went to buy drinks,
whilst they were at a place called Henkas in First Avenue. Consequently, he
could not have gone away for more than 20 minutes when making allowance
for the time he would have spent in going and coming back from the scene.
Even if it is accepted that the appellant did leave at that stage (which I do
not), it was long after the commission of the offences at 21h40.

[14] The approach adopted by the trial court to the alibi evidence was
completely wrong. Once the trial court accepted that the alibi evidence could
not be rejected as false, it was not entitled to reject it on the basis that the
prosecution had placed before it strong evidence linking the appellant to the
offences. The acceptance of the prosecution’s evidence could not, by itself
alone, be a sufficient basis for rejecting the alibi evidence. Something more
was required. The evidence must have been, when considered in its totality,

of the nature that proved the alibi evidence to be false. In S v Sithole and
others 1999 (1) SACR 585 (W) the test applicable to criminal trials was
restated in the following terms at 590g-i:
‘There is only one test in a criminal case, and that is whether the evidence establishes the
guilt of the accused beyond reasonable doubt. The corollary is that an accused is entitled
to be acquitted if there is a reasonable possibility that an innocent explanation which he
has proffered might be true. These are not two independent tests, but rather the statement
of one test, viewed from two perspectives. In order to convict, there must be no
reasonable doubt that the evidence implicating the accused is true, which can only be so
if there is at the same time no reasonable possibility that the evidence exculpating him is
not true. The two conclusions go hand in hand, each one being the corollary of the other.
Thus in order for there to be a reasonable possibility that an innocent explanation which
has been proffered by the accused might be true, there must at the same time be a
reasonable possibility that the evidence which implicates him might be false or
mistaken.’
See also S v Van Aswegen 2001 (2) SACR 97 (SCA).

[15] Where a defence of an alibi has been raised and the trial court accepts
the evidence in support thereof as being possibly true, it follows that the trial
court should find that there is a reasonable possibility that the prosecution’s
evidence is mistaken or false. There cannot be a reasonable possibility that
the two versions are both correct. This is consistent with the approach to
alibi evidence laid down by this Court more that 50 years ago in R v Biya
1952 (4) SA 514 (A). At 521C-D Greenberg JA said:

‘If there is evidence of an accused person’s presence at a place and at a time which makes
it impossible for him to have committed the crime charged, then if on all the evidence
there is a reasonable possibility that this alibi evidence is true it means that there is the
same possibility that he has not committed the crime.’

[16] Alive to the difficulty presented by the alibi evidence, counsel for the
State argued that the complainant made a mistake as to the exact time during
which the offences were committed. She urged  us to determine the correct
time by calculating time backwards from 07h00 which was the approximate
time at which the complainant arrived at the police station. She submitted
that if it is accepted that the complainant spent about four hours after the
incident before she went to lay a charge, then she must have been attacked at
03h00 in the morning.

[17] The approach proposed by counsel is not without difficulties. The
complainant was adamant that the offences were committed at 21h40 and
that she arrived at the police station at 02h00. She only conceded that she
arrived there at 07h00 when it was pointed out to her that the other witnesses
say she arrived at that time. Moreover, the medical report which was handed
in by consent and the contents of which were admitted as correct reflected
that the complainant was examined by the doctor at 05h15.

[18] Of importance is the fact that a change in respect of the date and time
would substantially alter the case which the appellant faced at the trial. It

may well be that had the appellant’s attention been drawn to the fact that the
offences were committed at the time suggested by counsel, he could have
produced evidence showing that he was not at the scene even at that time. If
the change is effected now, he would be denied that opportunity. This would
unquestionably prejudice him and render the whole trial unfair. As a result
his right to a fair trial would be violated.

[19] Before concluding this judgment I deem it necessary to comment on
the delays implicit in the prosecution of this appeal. Although this Court
issued the order that led to the appellant’s release immediately after hearing
the matter, the time taken by his appeal to get to this Court is unacceptably
long. The appellant was tried within a reasonable time from the date on
which the offences were committed. He was convicted and sentenced on 22
September 1995. His unsuccessful appeal to the Cape High Court was
prosecuted shortly thereafter and on 9 February 1996 that court delivered its
judgment thereon. In his application for leave to appeal, the appellant alleges
that he only became aware of the judgment of the Cape High Court three
months after it was delivered. It is not clear why it took three months to
inform him of the outcome of his appeal.

[20] After becoming aware of the Cape High Court’s decision, the
appellant states that he sought advice from the registrar of that court who
referred him to the advocate who represented him at the appeal. On the

advice of his former advocate, he contacted the Legal Aid Board (‘the
Board’) seeking assistance in pursuing a further appeal. He states that he
tried to contact the Board without success for a period of four years. He then
contacted the Director of Public Prosecutions who referred him back to the
registrar. He directed a written request for leave to appeal to the registrar. It
appears that an advocate was appointed to act for him at the request of the
court. Eventually his formal application for leave to appeal was lodged with
the court a quo on 22 May 2002 and heard on the next day. He was there and
then granted leave to appeal.

[21] It appears from the date stamp that the record of the proceedings was
only received by the registrar of this Court almost a year later, on 24 April
2003. The appeal was set down for hearing on 19 May 2005. There is no
explanation for the delay in lodging the record. Nor is there any explanation
for the delay in prosecuting the appeal. It may be pointed out that at the
hearing of the appeal before us, the appellant was represented by an
advocate appointed by the Board. We were also informed by the registrar of
this Court that the cause for the delay in setting the matter down for hearing
was that no heads of argument were filed on behalf of the appellant until 16
November 2004. As soon as the heads of argument were filed, the matter
was set down for hearing.

[22] The inordinate delays involved in this matter are not only
unacceptable but are also a serious breach of the appellant’s constitutionally
entrenched right of appeal to a higher court. Without an explanation for the
delays which occurred after May 2002, it is impossible to determine who
was responsible for them and whether any fault can be attributed to such
person.

[23] In the circumstances the conviction could not be upheld and for these
reasons the order referred to in para 1 above was issued. When the matter
was heard we were prepared, in the special circumstances of this case, to
condone the late filing of the record and the heads of argument. By oversight
this was not reflected in the order issued which is accordingly amended by
the addition of a further paragraph that reads as follows:
‘3.
The late filing of the appeal record and the appellant’s heads of argument is
condoned.’

____________________
C N JAFTA
JUDGE OF APPEAL

Concur:

Farlam JA
Mlambo JA