Athlete Lebohang Shange loses bid to overturn rape, assault conviction

“The facts demonstrate another man exercising his control over a woman whose crime was to fall in love with him.”

So said Mpumalanga High Court judge Takalani Ratshibvumo, rejecting athlete Lebohang Shange's appeal against his rape and assault with intent to cause grievous bodily harm conviction and sentence.

Shange was handed a 10-year sentence for the rape and a six-month term for the assault by the Evander regional court on April 13 2023, with the sentences to run concurrently. His leave to appeal was denied by the court, prompting him to turn to the high court. 

Summarising, Ratshibvumo said the crime stemmed from a weekend visit by Shange and his former partner, described as TC in court papers, to his family [for a] ceremony in Newcastle, KwaZulu-Natal, from September 13-15, 2019.

“When TC learnt there was no room for her to sleep in the family home they were visiting that Friday night she understood the cultural limitation placed on her as a woman not yet married to their son. The family house only had a space for her boyfriend to sleep.

“That night she slept in his car. The next day, Shange managed to arrange with an elderly woman from the neighbourhood for TC to sleep while the ceremony was under way. The weekend did not end as great as it started because as they were driving back they were involved in a [car] accident in the area of Embalenhle, Mpumalanga.”

While the car was damaged beyond repair, the occupants were uninjured and police escorted them to Embalenhle.

“According to the complainant, they reached the appellant’s [Shange] cousin’s place in Embalenhle in the early hours of the morning on September 15. After they arrived, the appellant proceeded to a room normally used by his cousin, which had two single beds, one of which belonged to his cousin’s roommate.

“Though his cousin’s roommate left the room upon their arrival, the complainant decided not to join the appellant in sleeping because it did not feel OK for her to sleep while the appellant’s friends could not sleep as there was not enough space for them. So she stayed awake seated in the living room with them.”

Later that day, Shange got up and went to where TC and his friends were sitting and shortly after, her cellphone rang and she answered it. This was the start of trouble between them as Shange demanded she hand over the phone, which she refused to do, before grabbing it and returning to the bedroom.

TC followed him to the room in a vain attempt to get it back but once they got to the room Shange “accused her of dating his friends, referring to the men with whom she was seated out there”.

“She tried to grab her phone from him and he hit her with open hands, fists and kicked her until she started bleeding through her nose. He also grabbed the wig she was wearing and kept it away from her and she would not leave the room without it.

“There was a noisy commotion in the room which attracted the attention of people in the house as they came to investigate. One of those was the appellant’s cousin. He cautioned them that they were making noise before leaving and locking the room’s door from outside.”

The argument continued once the door was closed and ended with her saying she wanted to break up with him. Shange did not take this well and threw her on the bed before throttling and raping her.

According to the court, he tearfully apologised afterwards “just as he has done in the past” before blaming her for what happened. TC managed to leave the room when a woman tenant unlocked it. This was the same woman who took her to the police station to report the matter.

Shange corroborated most of TC's version, except relating to their arrival in Embalenhle. There, he claimed, their issues arose when they went to the local pub later that same day and the couple disagreed on several issues, including a call he said he made to a woman friend which he said sparked the physical fight.

In his appeal, Shange argued the regional court had erred by “not properly taking into account the peculiar circumstances and background of this matter”, which included the reasonable doubt that existed in relation to TC's credibility as the sole witness and how this should've resulted in Shange receiving the benefit of the doubt and being acquitted on both charges.

Shange tried to poke holes in the forensic nurse Thabile Malaza's report, specifically with her note that the last consensual sexual encounter was on September 14 and “the number of consensual sexual partners the complainant had over the past seven days was one”. 

TC had previously denied this, saying their only sexual encounter was when he raped her. Shange claimed they had sex on the 13th and 14th.

"[Shange] now argues the complainant lied in her evidence when she testified she did not have sexual intercourse with him on those two dates as she confirmed to Malaza that she did. If the complainant lied on this aspect, so goes the argument, the court should have found she was not a credible witness.”

This argument was rejected because it had not been raised with TC for clarity, with his explanation he assaulted her in self-defence. 

“The court was alive to possible inferences that could be drawn from the common cause facts, now that these issues were not put to the complainant. It took into consideration the medical report, the gynaecological injuries noted therein and evidence by a police officer who saw the fresh injuries on the complainant’s face and found the case for the state was proved beyond reasonable doubt,” Ratshibvumo said.

“The complainant did not just have injuries on her face and neck but also bruises on the inner part of her vagina. Malaza found the injuries consistent with forced vaginal penetration. Malaza was steadfast in her opinion as a forensic nurse because even if there was a consensual sexual encounter between the complainant and the appellant on September 14 2019, it would not take away that he had forced sexual intercourse with her on September 15 2019. This would be based on her professional observation and the version relayed to her by the complainant.

“In an attempt to explain the [vaginal] injuries, [Shange] testified the complainant liked 'rough sex' which required no foreplay. This version was equally not put to her when she testified and was rightly rejected by the court.

“There is nothing that can be regarded as substantial and compelling circumstances presented before the [regional] court in this case. The facts demonstrate another man exercising his control over a woman whose crime was to fall in love with him.

“That she was raped soon after she was involved in a car accident in which the car was written off is aggravating, as it added to the trauma she was already subjected to.

“What makes it worse is the appellant was the driver of the car when they were involved in the accident. He should have been more considerate than he was if he cared.

“There is no reason to interfere with the sentence as there was no misdirection by the court in finding no substantial and compelling circumstances based on which it could deviate from the prescribed sentence. The appeal on sentence is also bound to fail.”

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