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[2018] ZAGPJHC 690
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S v Ndebele (A207/2016) [2018] ZAGPJHC 690 (26 June 2018)

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REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO.: A207/2016
In
the matter between:
THE
STATE
Appellant
and
NGWAKO
HERALD NDEBELE
Respondent
JUDGMENT
MALUNGANA
AJ
BACKGROUND
[1]
This is an appeal in
terms of section 310 (1) of the Criminal Procedure Act 51 of 1977
(the CPA) by the appellant, relating to a
question of law, against
the judgment handed down by the Regional Court Magistrate,
Johannesburg.
[2]
The respondent, Harold
Ngwako Ndebele, was indicted in the Regional Court, Johannesburg, and
charged with rape of a 7 year old schoolchild
in contravention of
section 3 read with sections 1, 55, 56 (1), 57, 58, 59, 60 and 61 of
the Criminal Law Sexual Offences and Related
Matters Amendment Act 32
of 2007, read with the provisions of section 51 (1) and Schedule 2 of
the Criminal Law Amendment Act 105
of 1997 as amended. The
respondent, who was legally represented throughout the trial, pleaded
not guilty and was subsequently acquitted
of the charge of rape on 27
January 2015.
QUESTION OF LAW
[3]
Aggrieved by the
acquittal of the respondent, the appellant lodged an application to
appeal the said judgment, on the basis of a
question of law
formulated as follows:
3.1.
Whether the trial court
was correct in applying the principles governing the cautionary rule
to the evidence of a single witness,
notwithstanding the fact that
the witness is a child or a victim of a sexual offence.
3.2.
Whether the court a quo
should have weighed all the evidence before it, and then decided if
the state has succeeded in proving the
guilt of the respondent beyond
a reasonable doubt.
3.3.
Whether the court a quo
was correct in finding that there was no corroboration for the
evidence of the complainant victim as the
medical evidence was
compromised by the examination of S, her aunt.
3.4.
Should the court not
have found that corroboration may be found in independent evidence.
3.5.
Should the court a quo
not have found that the evidence of the complainant was not that of a
single witness when independent corroboration
was found in the
evidence of Dr Babar and the photo identity parade compiled by the
defence.
3.6.
Whether the trial court
adhered to the prescripts of section 59 of the Sexual Offences and
Related Matters Act 32 of 2007 (the Sexual
Offences Act) when it
found that the complainant never reported the fact that the
respondent had raped her.
EVIDENCE
[4]
The complainant
testified that at about 13:00, and at the complainant’s school
premises, the respondent entered the complainant’s
classroom
while she was waiting for her grandmother to pick her up. According
to the complainant, the respondent took her behind
some boxes, pushed
her to the floor, opened her dress, put his fingers into her vagina,
and then had sexual intercourse with her
without her consent. They
both quickly dressed up and stood at the back of the table when her
grandmother arrived. In cross examination
she denied the respondent’s
version that she was picking up papers and was on her way to throw
them into the dustbin when
her grandmother came to fetch her. She
further testified under cross examination that when they arrived
home, her grandmother instructed
S to check her private parts during
which she revealed to her that the respondent was the one responsible
for the injuries sustained
by her. She was subsequently taken to the
doctor by her mother for medical examination. Whilst at the doctor’s
room she told
him that the respondent touched her body and put his
private part into hers. She denied that she was mistaking the
respondent for
another person. It is common cause that the defence
requested a photo ID parade. The complainant identified the
respondent from
the 5 photos shown to her. The complainant used
anatomically correct dolls to demonstrate exactly what the respondent
did to her.
[5]
The complainant’s
grandmother, L (L) testified that she arrived at the school to pick
up the complainant at about 1:00 in
the afternoon. She could not find
the complainant at the usual spot where she usually picks her up.
This prompted her to look for
her around the school premises.
Eventually she went to her classroom. The door was closed. The
complainant was in the classroom
with the respondent standing behind
a table. The minor child looked shaky and scared. She noticed that
there were cardboard boxes
piled up and behind them was a blanket. At
that stage the respondent gave the complainant a dustbin to go and
empty outside the
classroom. She asked the respondent what he was
doing with the minor child alone in the classroom. His response was:
“
what do you
think I could be doing with K?
”
Unsatisfied with his response she proceeded to look for the school
principal. One of the teachers informed her that the
principal was
not present at school. She told the teacher about her encounter in
the classroom and left for home with the complainant.
On her way
home, she noticed the complainant’s movements seemed strange.
On her arrival at home she instructed her daughter,
S, to check what
was wrong with the complainant. On examining the complainant, S found
some whitish or cream substance on her vagina.
She used toilet paper
to wipe it. Thereafter the complainant went with her mother to the
police station and Hillbrow clinic. She
refuted the respondent’s
entire version about the incident and the meeting with her at the
gate. Instead she reiterated that
she found the respondent with the
minor child in the classroom, and that she does not normally wait for
the minor child outside
the premises as asserted by the respondent.
[6]
The complainant’s
mother, M (M) testified that she met with her mother and the
complainant at Alexander clinic. She proceeded
to the police station
and took the child to Hillbrow medical legal clinic. At the clinic,
the child was examined and some whitish
substance was found in the
child’s private parts. When asked about what happened to the
child’s underwear, M replied
that it was placed into a box
which was used during the examination. She also gave the tissue with
the whitish substance to the
investigating officer who put it into
the said box, from where it was taken to the lab.
[7]
She testified that she
went with the child to school with several police officers. The child
was asked to identify the respondent
because there were several
groundsmen working there. He could not be found that day. The
following day they went back. They waited
for a while because the
respondent was not yet there, and as soon as he arrived the child
pointed him out.
[8]
Under cross
examination, she revealed that the child was crying and told her that
the respondent said he was going to kill her if
she tells anybody
about what had happened. She testified further that the child was the
one who told the doctor about what the
respondent did to her, and
that fact that it had happened before. She also testified that the
complainant’s grades had dropped
dramatically and that she
hardly ate, without an explanation.
[9]
Dr Mohammed Babar
testified that he was on duty on 20 June 2013 at Hillbrow Health
Clinic. According to him, the complainant came
to the clinic in the
company of her mother and the SAPS. The complainant told him that a
known male undressed her in a classroom,
touched her body and then
put something in her vagina. She further disclosed to him that the
same man did this to her many times
in the past. During the
examination, the child seemed afraid and was crying. He reported that
the complainant’s orifice was
swollen, the hymen was con
probation and oval shaped. There were bumps at four, seven and ten
o’clock. There were bruises
at six o’clock. The vaginal
examination revealed a whitish discharge. The cervix was not examined
due to the age of the child.
He took samples and sealed them with the
seal number 07D7AA1992XX. Clinical examination indicated vaginal
penetration by a blunt
object multiple times. When asked what could
have caused the swelling, he replied that it could be a trauma or
infection. He testified
that the bumps in the hymen are caused by
repeated blunt force trauma. The bruising was caused by a recent
trauma. He postulated
that the vaginal infection may be caused by
poor hygiene, but most probably by a blunt object because of the
repeated vaginal penetration.
He remarked on the report that the
complainant’s hygiene was good. When asked to give an example
of what a blunt object could
be, he replied that it can include a
finger, penis or stick.
[10]
When asked whether the
complainant had mentioned the name of the respondent, his reply was
that they do not write the name on the
J88, and if she did name him,
he would write it in the clinic file. He further explained that the
sister on duty takes the history,
then the doctor on call would write
down the results of his examination. He further testified that the
bruising, at number nineteen
was called a fresh injury. He took the
swabs and sent it for DNA testing.
[11]
The respondent, in his
evidence, denied the charge of rape. His testimony, to some extent,
differed with the version which his legal
representative had put to
the state witnesses. He testified that he was busy chatting with a
teacher, Ms Moodley, about the manner
in which the children were
cleaning the classroom. Whilst he was busy sweeping the floor, a
child came in and said he was being
called. He saw an old lady
outside the school fence. She asked him who was responsible for
cleaning the classroom. He responded
that he was the one. He
testified that he is not sure if it was the same grandmother who was
in court. The grandmother confronted
him and demanded to know why he
was allowed to work with young girls in the classroom. She also told
him that he is one of the
people who would one day rape their
children. She then started shouting at the children demanding to know
who the respondent was.
She grabbed two children and went to the
class of Ms N. The respondent proceeded to the same class and
explained to Ms N what the
grandmother had said to him. Regarding his
arrest, he testified that the police officer arrested him after the
complainant pointed
at him. He was then taken to the Alexander clinic
where his blood was drawn.
[12]
He testified that the
children at school called him ‘uncle Harold’, others call
him ‘Pappa N’, because he
also has a child, N, who
attends the same school. He testified that the school employed about
eight female and eight male cleaners,
all of whom are black. It was
put to him that during the child’s testimony, his attorney
stated that he would testify that
the complainant was seen going to
empty the bin. He replied ‘yes’. He later stated that he
knew nothing about the dustbin.
[13]
Caroline Mbetse
(Mbetse) employed by the SAPS forensic science laboratory was called
by the defence. She testified that she was
called to evaluate and
compile the DNA report. After receiving a sexual assault kit
containing the swabs and the panties as well
as the tissue, she
examined the items. The swabs and panties tested positive for semen.
After the results were evaluated, no DNA
result was obtained from the
items. She explained that it could be because there was not enough
male DNA from the samples, alternatively
the male could have been
sperming, in which case semen would be present, but sperm would not.
[14]
In cross examination,
she was asked whether the fact that no male DNA could be found, would
exclude rape. Her answer was that it
does not exclude rape. Perhaps
the victim urinated or washed or there was drainage, while the child
was walking.
[15]
On the respondent’s
version, the complainant’s version was a complete fabrication.
In his evidence in chief he denied
that he knew the girl because
there were so many children at the school. Insofar as the
probabilities are concerned, if the respondent’s
version is
true, then the complainant’s version was a fabrication. It
should be observed that in this case no motive to fabricate
the story
was disclosed by the respondent during the trial.
EVALUATION
[16]
The complainant was
subjected to extensive cross examination concerning the identity of
the respondent. Few stones were left unturned
in the effort to
discredit her. The complainant was asked about how she was raped and
she explained this in graphic detail with
reference to anatomically
correct dolls. She also identified the respondent in the photo ID
parade. No inconsistencies were revealed
throughout this extensive
cross examination. She was unwavering and stuck to her version.
[17]
L explained how she
found the complainant with the respondent in the classroom. Her
evidence is consistent with the complainant’s
testimony that
she was found in the classroom with the respondent standing at the
back of the table. The grandmother was justifiably
upset when she
could not be offered a reasonable explanation as to what the
respondent was doing with the child alone in the classroom,
behind a
closed door. Her evidence accords with that of the complainant in all
material respects.
[18]
The respondent’s
attorney put the respondent’s version to the complainant. The
respondent would tell the court that
the complainant was on her way
to empty the dustbin when her grandmother came. In this regard, the
complainant’s grandmother
testified that the respondent sent
the complainant to empty the dustbin after she caught them in the
classroom. Regrettably, the
magistrate did not deal sufficiently with
the shortcomings of the respondent’s evidence in this regard.
[19]
The only aspect where
the complainant, on the one hand, and grandmother and mother on the
other hand, differed was that the grandmother
and mother testified
that the complainant told her that she was afraid to report the
respondent because he threatened to kill her.
The complainant did not
state this in her evidence. I do not, however, find any material
contradiction between the grandmother’s
and mother’s
evidence and that of the minor child. There is rather, corroboration
of the complainant’s version as to
the precise location where
the grandmother found the respondent and the complainant.
[20]
Her mother’s
evidence confirms what Dr Babar found on examination of the
complainant. She also confirmed that the complainant
identified the
respondent, by name, as the “known person” who raped her.
The strongest evidence that supports the complainant’s

reliability is that of Dr Babar. He testified that the complainant
told him that someone known to her undressed her in the classroom,

touched her body and put something in her vagina. His findings that
the urethral orifice was swollen, that fresh bruising was present,

that there were bumps at four, seven and ten o’clock was
consistent with the recent repeated vaginal penetration by a blunt

object, probably a penis. This supports the version of the
complainant that she was raped.
QUESTIONS OF LAW
[21]
The evidence above
contrasts with the magistrate’s finding that there is no
medical corroboration for what the complainant
alleges. It is
difficult, in my view to imagine how a person of the complainant’s
age, who has been raped would be able to
give accurate evidence and
have perfect recollection of what happened to her. Despite this, the
evidence of the complainant was
given in a detailed and precise
manner, which evidence was corroborated by her grandmother, her
mother and Dr Babar in the material
respects required.
[22]
In handing down the
judgment, the court a quo cautioned itself on the evidence of a
single witness. It then came to the conclusion
that the DNA did not
link the respondent to the rape. The magistrate also found that there
was a contradiction between the complainant’s
testimony in
relation to what she told her grandmother and what she testified, in
relation to whether she told her grandmother
that the respondent
would kill her if she reported him. He therefore came to the
conclusion that the complainant was a single witness
whose evidence
was uncorroborated.
[23]
The judicial approach
to contradictions between two witnesses, and contradictions between
the versions of the same witness, is,
in principle, identical. In
neither case is the aim to prove which of the versions is correct,
but the aim is to satisfy oneself
that the witness could err, either
because of a defective recollection or because of dishonesty. See
S
v Malafadiso en Andere
2003 (1) SACR 583
(SCA). It seems clear from the judgment that the
magistrate did not find that the complainant was dishonest.
[24]
The trial court in
evaluating the evidence of the present case, did not expressly state
that it was applying the cautionary rule
in relation to sexual
offences. It stated that it did so as the child was a single witness,
whose evidence was uncorroborated.
However, the magistrate, in fact
applied such rule in relation to a sexual offence, due to the fact
that he found that there was
no corroboration of the complainant’s
version. Although not expressly stated, the magistrate, in fact,
applied the cautionary
rule to three issues, i.e. the fact that the
complainant was a single, young witness, in a sexually related
matter. He was wrong
in all three instances.
[25]
It is settled in our
law that in evaluating evidence, all the trial court has to ask
itself is whether the evidence presented to
it by a young witness is
trustworthy. For the evidence of such a witness to be trustworthy
would depend on a number of factors
such as the child’s power
of observation, recollection and the power of narration of the
specific events at hand. See
Woji
v Santam Insurance
1981
(1) SA 1020
.
[26]
It is also trite that
an accused can only be convicted if the evidence of identity
establishes his guilt beyond a reasonable doubt.
See
S
v Van der Meyden
1999 (1) SACR 447
at 450 A-B
.
Although this case involves the identity of the respondent, the
magistrate did not find that the complainant’s identification

was the reason for the acquittal.
[27]
In my view, the
reasoning underpinning the judgment of the court below reveals a
fundamental misconception as to the proper test
that finds
application when a trial court evaluates the evidence at the end of
the trial.
[28]
There is sufficient
evidence in corroboration of the complainant’s version. The
complainant was able to identify the respondent
with a degree of
exactitude. In her own testimony she told her grandmother, S, her
mother and Dr Babar that the respondent had
interfered with her
sexually. On the date of the respondent’s arrest, she also
identified the respondent after waiting at
the school for his
arrival. Dr Babar’s conclusion was that there was recent
repeated vaginal penetration by a blunt object
such as a penis and
that it appeared not to be the first time. Ms Mbetse also explained
why the male DNA was not identified, but
said that the presumptive
tests showed signs of semen. The complainant has identified no other
person besides the respondent who
had sexual intercourse with her.
The appellant’s counsel submitted that the learned magistrate
totally disregarded the evidence
of Dr Babar and concluded that the
findings of the doctor were compromised by the examination of the
complainant by S. Counsel
for the appellant argued that there was no
basis for such conclusion, and a statement to that effect was never
put to Dr Babar
during his testimony.
[29]
The respondent’s
counsel embraced the judgment of the trial court and agreed with the
learned magistrate that the complainant
was a single witness, whose
evidence was not corroborated. He also pointed out contradiction
between the grandmother and the complainant
as highlighted in the
judgment of the court a quo. He submitted that an adverse inference
should be drawn as the State did not
call S. He argued that the State
did not prove that it was ‘uncle Harold’ who put his
private part into her vagina.
He further submitted that none of the
DNA could be linked to the respondent. In my view the contentions
advanced by the respondent’s
counsel are unsustainable in the
context of the present case.
[30]
It is trite that a
court is entitled to treat a single and/or child witness with a
certain amount of caution. This does not elevate
the position to that
of applying the cautionary rule. See
S
v M
1992 (2)
SACR 548
. The court
need only to find that the evidence was trustworthy and that the
truth has been told. See
S
v Sauls and Others
1981 (3) SA 172
(A)
where it was held that:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness. The
trial judge
will weigh his evidence, will consider its merits and demerits and,
having done so will decide whether it is trustworthy,
and whether,
despite the fact that there are shortcomings or defects or
contradictions in the testimony he is satisfied that the
truth has
been told… The presiding officer when evaluating the evidence
of a single witness should not allow the exercise
of caution to
displace the exercise of common sense.
”
[31]
In
DPP
v S
2000 (2)
SA 711
(T)
, it was
found that it cannot be said that the evidence of children in sexual
and other cases where there are single witnesses obliges
the court to
apply the cautionary rules before a conviction can take place. The
Court held that “
It
is so that children lack the attributes of adults and the younger
they are, the more it would be so. However, it cannot be said
that
this consideration requires that the court should apply the
cautionary rule as a matter of rote
”.
[32]
The only requirement
placed on the State is that the guilt of the accused should be proven
beyond a reasonable doubt. In
S
v Artman and another
1968 (3) SA 339
(A)
,
Holmes JA held at page 341B “
She
was however a single witness in the implication of the appellants.
The fact does not require the existence of implicatory corroboration:

indeed in that event she would not be a single witness. What was
required was that her testimony should be clear and satisfactory
in
all material respects
”.
[33]
In
S
v Jackson
1998 (1) SACR 470
(SCA)
at
477C-D, the SCA adopted the guidelines laid down by Lord Taylor in
R
v Makanjoula
1995 3
All ER 730
CA when dealing with sexual offence cases, the third of
which is particularly important. It reads as follows: “
In
some cases, it may be appropriate for the judge … to exercise
caution before acting upon the unsupported evidence of a
witness.
This will not be so simply because the witness is a complainant of a
sexual offence nor will it necessarily be so because
a witness is
alleged to be an accomplice. There will need to be an evidential
basis for suggesting that the evidence of the witness
may be
unreliable. An evidential basis does not include mere suggestions by
cross-examining counsel.
”
[34]
The SCA held at page
476E “
In my
view, the cautionary rule in sexual assault cases is based on an
irrational and out-dated perception. It unjustly stereotypes

complainants in sexual assault cases (overwhelmingly women) as
particularly unreliable. In our system of law, the burden is on
the
State to prove the guilt of an accused beyond reasonable doubt –
no more and no less. The evidence in a particular case
may call for a
cautionary approach, but that is a far cry from the application of a
general cautionary rule
.”
[35]
In
S
v Jackson
supra at page 476G and 477A-E, the court stated that “
In
formulating this approach to the cautionary rule under discussion
I respectfully endorse the guidance provided by the Court
of
Appeal in
R
v Makanjuola R v Easton [1995]
3
All ER 730
(CA)
,
a decision given after the legislative abrogation of the cautionary
rule in England. Although the guidelines in that judgment
were
developed with a jury system in mind, the same approach, mutatis
mutandis, is applicable to our law. At p 732 f to 733
a Lord Taylor
CJ stated:
‘
Given
that the requirement of a corroboration direction is abrogated
in the terms of s 32(1), we have been invited to
give guidance
as to the circumstances in which, as a matter of discretion, a
judge ought in summing up to a jury to urge
caution in regard to
a particular witness and the terms in which that should be done.
The circumstances and evidence
in criminal cases are infinitely
variable and it is impossible to categorise how a judge should
deal with them. But it
is clear that to carry on giving
'discretionary' warnings generally and in the same terms as were
previously obligatory would
be contrary to the policy and
purpose of the 1994 Act. Whether, as a matter of discretion, a judge
should give any warning
and if so its strength and terms
must depend upon the content and manner of the
witness's evidence, the circumstances
of the case and the
issues raised.
The judge will often consider that
no special warning is required at all. Where, however, the
witness has been shown to be
unreliable, he or she may consider it
necessary to urge caution. In a more extreme case, if the
witness is shown to have lied,
to have made previous false
complaints, or to bear the defendant some grudge, a stronger
warning may be thought appropriate and
the judge may suggest it
would be wise to look for some supporting material before acting on
the impugned witness's evidence.
We stress that these
observations are merely illustrative of some, not all, of the
factors which judges may take into
account in measuring where a
witness stands in the scale of reliability and what response
they should make at that level in
their directions to the jury.
We also stress that judges are not required to conform to any
formula and this court would be
slow to interfere with the
exercise of discretion by a trial judge who has the advantage of
assessing the manner of a
witness's evidence as well as its
content.’
Lord Taylor CJ then
formulated eight guidelines, the third of which is particularly
important for our purposes. It reads as
follows (see p 733 c-d):
‘
(3) In
some cases, it may be appropriate for the judge to warn the jury
to exercise caution before acting upon the unsupported
evidence
of a witness. This will not be so simply because the witness
is a complainant of a sexual offence nor will it necessarily

be so because a witness is alleged to be an accomplice.
There
will need to be an evidential basis for suggesting that the
evidence of the witness may be unreliable. An evidential basis

does not include mere suggestions by cross-examining counsel
.’
(My emphasis.)
”
[36]
In
S
v Mahlangu
2011 (2) SACR 164
(SCA)
,
at 171B-C the court said the following: “
The
court can base its findings on the evidence of a single witness, as
long as such evidence is substantially satisfactory in every
material
respect
or
if there is corroboration. The said corroboration need not
necessarily link the accused to the crime
”.
[37]
Section 59 of the
Sexual Offence Act provides: “
In
criminal proceedings involving the alleged commission of a sexual
offence, the court may not draw any inference only from the
length of
the delay between the allege commission of such offence and the
reporting hereof
”.
[38]
The magistrate was
accordingly wring in his judgment in finding that the child had
failed to tell anybody of the incident.
CONCLUSION ON
QUESTIONS OF LAW
[39]
In my view, the
respondent’s guilt was established by the evidence of the
complainant supported by that of the other State
witnesses.
Therefore, the complainant was not a single witness whose evidence
was uncorroborated by independent evidence. Dr Babar’s
evidence
corroborated that the complainant was raped. In the context of the
court a quo’s failure to correctly apply the
principle of the
cautionary rule in respect of the complainant’s evidence, the
judgment of the court below cannot stand.
It is self-evident on a
holistic and dispassionate reading of the judgment of the court below
that the court a quo adopted the
wrong test, hence its erroneous
judgment. It is beyond question that the court below committed a
serious misdiscretion in evaluating
the evidence which amounts to an
error of law.
SECTION 322 OF THE CPA
[40]
In terms of section 322
1) of the CPA, this court is entitled to set aside the judgment of a
trial court on the ground of a wrong
decision on any question of law
or on the ground that there was a failure of justice. Such a failure
should be the result of an
irregularity which led to the judgment
being set aside. Section 322 provides:
“
322.
Powers of court of appeal
(1)  In the case
of an appeal against a conviction or of any question of law reserved,
the court of appeal may—
(a) allow the appeal
if it thinks that the judgment of the trial court should be set aside
on the ground of a wrong decision of
any question of law or that on
any ground there was a failure of justice; or
(b) such judgment as
ought to have been given at the trial or impose such punishment as
ought to have been imposed at the trial;
or
(c) make such other
order as justice may require:
Provided that,
notwithstanding that the court of appeal is of opinion that any point
raised might be decided in favour of the accused,
no conviction or
sentence shall be set aside or altered by reason of any irregularity
or defect in the record or proceedings, unless
it appears to the
court of appeal that a failure of justice has in fact resulted from
such irregularity or defect.
…
..
(4)
Where a question of law has been reserved on the application of a
prosecutor in the case of an acquittal, and the court
of appeal has
given a decision in favour of the prosecutor, the court of appeal may
order that such of the steps referred to in
section 324 be taken as
the court may direct.
”
[41]
In
DPP
v Pistorius
2016
(2) SA 317
(SCA)
at
paragraph 44, it was held that the decision to reserve a question of
law should not be an academic one but should have a practical
effect
on the conviction of the accused, “
Under
s 324 of the CPA, referred to in s 322(4), where there has been a
misdirection of law, as has occurred in this case, proceedings
in
respect to the same offence may again be instituted before another
judge and assessors. Accordingly, it is a permissible option
for this
court to set aside the conviction of culpable homicide on count one
of the indictment and order that the accused be tried
de
novo
on that count.
However,
given the protracted nature of the trial that has already taken
place, the issues that were involved, the time that has
already
elapsed and the unfairness that may result if witnesses have once
again to testify, it would seem to me to be wholly impracticable
and
not in the public interest to follow that course
.”
[My emphasis]
[42]
In Court, in
Pistorius
,
thus felt that for those reasons, it was in a position to uphold the
appeal and give such judgment as it deemed appropriate, and
not refer
it back to start
de
novo
.
[43]
The Court finds that,
following the dictum in
Pistorius
,
it would not be in the public interest to remit the matter back. The
Court will therefore adopt the permissible option of setting
aside
the order of the court a quo and replacing it with this Court’s
order.
[44]
In the circumstances,
the following order is made:
1.
The appeal is upheld in
respect of the questions of law relied upon by the appellant.
2.
The order of the court
below is set aside, and replaced with the following order:
2.1.
The respondent is found
guilty of rape in terms of section 3 (rape) of Act 32 of 2007.
2.2.
The matter is remitted
to the regional magistrate for the imposition of the appropriate
sentence.
3.
The respondent is
ordered to appear on 9 July 2018, in Court 13 at the Johannesburg
Magistrate’s Court at 09H00, for that
court to determine the
further proceedings.
_______
_______
P
H MALUNGUNA
Acting
Judge of the High Court, Gauteng Local Division
I
agree
_______
_______
WEINER
J
Judge
of the High Court, Gauteng Local Division
Heard
on: 14 June 2018
Delivered
on: 26 June 2018
APPEARANCES:
Counsel
for the Appellant: Adv. JG Wassermann
Instructing
by: NPA
Counsel
for the Respondent: WB Ndlovu
Instructing
by: Ndlovu Attorneys