Evidence and the role of indictments

In S v Makayi [2021] 2 All SA 907 (ECB), charges must adequately reflect the nature, extent and seriousness of the criminal conduct, enable the case to be presented in a clear and simple way, and provide the court with an appropriate basis for the sentence requested.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Criminal law and procedure – rape - Evidence and the role of indictments: The accused in S v Makayi [2021] 2 All SA 907 (ECB) was charged with having raped a 6-year-old girl and pleaded not guilty. The indictment referred to his having intentionally committed an act of sexual penetration with the complainant by inserting his penis into her vagina and anus without her consent.

The complainant’s testimony did not include an allegation of penetration or sexual intercourse. The accused flatly denied the allegations against him. After their evidence had been adduced, the court invited argument on the question of intent. The prosecution pressed for a conviction on the main count, contending that the complainant’s honest and reliable description of the manner in which the accused had placed her on top of him and the manner in which he had moved, was sufficient to prove that the accused had the requisite intent to rape, and the evidence was sufficient for a conviction of rape on the basis of dolus eventualis.

It was held, by Stretch J, that s 144(3)(a) of the Criminal Procedure Act 51 of 1977 states that an indictment shall be accompanied by a summary of the substantial facts of the case that, in the opinion of the Director of Public Prosecutions (the DPP), are necessary to inform the accused of the allegations against him. The purpose of the summary is to fill out the picture presented by the indictment. While the prosecution is not bound by the summary of substantial facts, where the evidence, which the state intends to lead is so vastly different from that reflected in the summary of substantial facts, it is expected from the prosecution to either supplement the summary, and/or present an opening address. Prosecutors should decide on and draw up charges based on available evidence which will, inter alia, adequately reflect the nature, extent and seriousness of the criminal conduct and which can reasonably be expected to result in a conviction, provide the court with an appropriate basis for the sentence requested, and enable the case to be presented in a clear and simple way. The Prosecution Policy of the National Director of Public Prosecutions, in Item 7, states that prosecutors should fairly present the facts of a case to a court, disclosing information favourable to the defence even though it may be averse to the prosecution case. The summary of substantial facts in this case was misleading in its particularity. An opening outline by the prosecutor, indicating that the state’s case would be that the accused made movements up against the complainant’s body while the two of them remained fully clothed, would have solved that problem.

The court also rejected the prosecutor’s attempt to rely on intention to rape in the form of dolus eventualis.

The final issue was that of the competent verdict of sexual assault. The testimony of the complainant, who was a single witness, was less than satisfactory. The medical evidence also did not corroborate her version.

Finding that the prosecution had failed to prove its case beyond a reasonable doubt, the court acquitted the accused.

Merilyn Rowena Kader
Legal Editor at LexisNexis