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[2022] ZAKZPHC 59
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Masondo v S (498/19) [2022] ZAKZPHC 59 (5 August 2022)

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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
AR
No: 498/19
In
the matter between:
SANDILE
SAM MASONDO
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from:
The Regional Court,
Pietermaritzburg (Mrs V. Jamuna sitting as the court of first
instance)
1.
The appeal against conviction is upheld.
The conviction and sentence is set aside.
2.
The order of the trial court is replaced
with the order: 'Not guilty and discharged'.
JUDGMENT
Delivered
on:5 August 2022
Mngadi
J:
[1]
The appellant appeals by virtue of an automatic right of appeal
having been convicted
and sentenced to life imprisonment by a court
of a regional division, against both conviction and sentence. The
appellant was charged
before the regional court with one count of
rape in contravention of section 3 of the Criminal Law (Sexual
Offences and Related
Matters) Amendment Act 32 of 2007 (the Act). The
regional magistrate convicted the appellant as charged on the count
of rape. The
court having found no substantial and compelling
circumstances sentenced the appellant to life imprisonment.
[2]
The charge of rape was read with the
provisions of section 51(1) Part 1 of Schedule 2 of the Criminal Law
Amendment Act 105 of 1997
(the CLAA).
The charge alleged that on or about 2
April 2017 and at or near France Location in the regional division of
KwaZulu-Natal, the appellant
did unlawfully and intentionally commit
an act of sexual penetration with complainant (L... D...] by
inserting his genital organ
into her genital organ and her anus
without the consent of the said complainant. The complainant was
eleven (11) years old. Section
51(1) and Schedule 2 of the CLAA was
applicable, in that the complainant was 11 years old at the time of
the commission of the
offence. The appellant, who was legally
represented, pleaded not guilty to the charge. The appellant in terms
of s115 of the Criminal
Procedure Act No. 51 of 1977 (the CPA)
disclosed the basis of his defence in an oral statement made by his
legal representative.
He stated he was with two of his friends,
namely; M[....]3 and T[....].
They
were from a tavern to another place to buy cigarettes.
It was at about 2am.
The route passed next to the
complainant's home. His
sister
and
the
complainant's
uncle
were
in
a
love
relationship
and
they
were
staying at
the complainant's home.
He also had a love relationship with the
complainant's mother.
He
stated that he decided to go and give stokvel money to his sister and
he asked his friends to wait for him at the gate at the
complainant's
home. He knocked enquiring about his sister. The complainant told him
that his sister, her mother and her uncle were
not present. He
noticed that doors of one structure and of the kitchen were not
closed. He told the complainant to close the doors
that were not
closed. He went back to his friends and they went away. He stated
that he knew the complainant because he had a relationship
with her
mother. He denied that he raped the complainant and he stated that he
did not enter the house.
[3]
The State lead evidence from the
complainant, the complainant's ten (10) years old brother[S] the
complainant's uncle T[....] M[....]
and the medical practitioner, Dr.
Akino.
The
birth certificate of the complainant and the medical examination form
(j88) were handed in as evidence. The appellant testified
for the
defence and he did not call any witnesses. Both the complainant and
her brother S.. were subjected to a competency enquiry
and the
regional magistrate found them to be competent witnesses.
They gave their evidence in camera and
through an intermediary.
[4]
The
learned
regional
magistrate
found
that
the
complainant
testified
in
a
clear, concise and satisfactory manner.
She found the evidence of the
complainant was consistent with that of her younger brother [S...]
that of her uncle and that of the
medical practitioner in relation to
the report that the complainant made. The regional magistrate, in
addition, held it was not
in dispute that the complainant was in fact
raped on that morning both vaginally and anally.
She said the only issue in dispute was
whether the appellant sexually penetrated the complainant on the
morning in question both
anally and or vaginally, in other words, she
said, whether or not it was the appellant who raped the complainant
on the night in
question.
[5]
The complainant testified as follows.
She was sleeping with her younger
brother S and another younger brother.
Her brother S woke her up and he told
her that there was a person
knocking
at
the
door.
The
person
who
was
knocking
she
recognised
as
the
appellant pushed the door open before she could open it.
He came in the room.
He asked her where was her mother and
his sister.
She
told him that her mother was in the neighbour's house and she did not
know where his sister was.
The
appellant asked her why they did not switch off the light in the
kitchen.
She
asked her brother S.. to accompany her to go to the kitchen to switch
off the light.
The
appellant said her brother S must sleep, children of his age are
asleep and the elder one must go to switch off the light.
The appellant walked away.
[6]
The complainant testified that she
proceeded to the kitchen.
She
switched off the light.
She
went out of the kitchen.
Whilst
she was closing the kitchen door, the appellant emerged. He told her
to sit down.
She
was in front of the kitchen door locking it.
She told the appellant to get out
because she wanted to go back to sleep.
The appellant refused to get out of the
kitchen.
He
again told her to sit down.
She
then sat down on the bench. The appellant remained standing.
The appellant again asked her where was
her mother and his sister.
He
told her that he wanted to do something to her but she must not tell
any person about it.
She
told him that she shall tell her mother if it is something wrong. The
complainant testified that it was dark in the kitchen
but she knew
that she was talking to the appellant because she knew his voice.
The appellant told her to undress.
She told him that she did not want to.
He pushed her onto the floor.
He pulled up her skirt.
He took off her panty.
He pulled his pants down to his knees.
She could see because he was using a
torch from his cell phone.
He
knelt between her thighs.
He
inserted his penis into her vagina.
He
jumped on top of her until he finished.
He told her to stand up and she refused.
He made her stand up and hold onto the
wall.
He
then inserted his penis into her anus.
He made some movements.
He finished and he dressed up.
He gave her the panty and he told her to
dress up.
He
then went away.
She
remained behind and she dressed up. She went back to the bedroom.
She told her brother S that the
appellant raped her.
S
kept on disputing everything she told him.
S after sometime said he was joking, he
saw what happened to her.
[7]
The complainant testified her uncle
arrived.
S
went to her uncle and he told him that the
appellant raped her.
Her uncle came to her and he asked what
happened.
She
told him that the appellant raped her.
Her uncle told her to wait for those
still asleep for them to go to the clinic.
They eventually went to the clinic.
They referred her to the hospital. She
went to the hospital.
A
doctor examined her.
He
asked her what happened and she told him.
She testified that when she went to
switch off the light at the kitchen, the appellant was at the gate to
her home with his two
friends talking.
They were at the gate about 4 metres
from her.
She
could not see who were they and she could not hear what they were
talking about.
She
saw the appellant closing the gate; he then walked straight to her
home. He came straight to her in the kitchen.
All the time she was busy locking the
kitchen door and she was on the doorway trying to lock the door when
the appellant told her
to sit down.
The
incident took place at about 5 o'clock in the morning.
It was visible and there was some light.
It was at dawn one could see things.
There was light on in the yard from a
light fixed at the corner of the structure forming the house.
The light at the time was on and it
assisted her to see the appellant walking straight from the gate.
From that lighting she could
see in the kitchen but not that clearly.
The appellant's phone from its light
assisted her to see.
The
cell phone was on and he placed it on the bench. He placed it on the
bench when he was about to undress.
She
was on the floor facing up and crying when he got on top of her.
[8]
The complainant testified that when the
appellant told her to sit down, she walked into the kitchen.
The door
was open.
She sat
on
the bench.
The
appellant
closed
the door.
When the appellant inserted his penis
into her vagina, she felt pain and she told him that it was painful.
The appellant did not say anything.
She testified that in the room in which
they were sleeping the light was on.
The
appellant pushed the door and he entered.
She saw that it was the appellant.
She knew the appellant because her
mother was the appellant's friend.
The
appellant and her mother used to talk and hug. She last saw the
appellant two days before the incident.
S woke her up.
The door was closed with a latch and the
light was on.
They
used a pair of scissors to latch the door.
The kitchen door was closed.
The appellant did not ask why the door
was not closed.
She
checked the time when she got into her bedroom after the incident.
She checked it on her mother's cell
phone.
Her
mother left her cell phone behind with her.
She did not fall asleep
after
the
incident.
Her
uncle
arrived
soon
after
the
incident
and
he
told
her
it
was
after 5 o'clock.
Her
mother was in
the
neighbour's house,
which
was across the driveway from her home.
She had gone to help the neighbour for
preparing for a function the following day. The neighbour's house was
nearby.
She
could shout to the neighbour from her home. She confirmed that the
appellant after he told her to switch off the light in the
kitchen,
he walked away.
She
saw him walking out of the gate, she saw him talking to his friends
outside the gate, and they were five.
She remembered that two of them were
M[....]2 and T[....].
She
said it not M[....]3 and T[....].
[9]
The complainant testified that she found
it difficult to lock the kitchen door.
It resulted in the appellant finding her
still busy locking the door.
She
was locking the door with latch.
She
struggled to lock the door because of poor light..
In the kitchen and at the gate, it was
not that dark.
In
the kitchen, once the door was closed, it was completely dark.
The appellant used the cell phone torch
to light in the kitchen.
He
did not switch on the light in the kitchen.
The cell phone directed the light to
her.
The
appellant in the kitchen tried to call her mother.
He wanted to find out where was she and
his sister.
The
cell phone rang but her mother did not answer it because she had left
her cell phone with her, and she told the appellant.
When she was back in her bedroom, she
saw the missed call made by the appellant in the kitchen to her
mother. She testified that
she was not influenced by her mother to
say the appellant raped her. She said she had no idea whether her
mother and the appellant
were lovers or not.
When what was recorded in the j88 as
what she told the doctor that her mother's boyfriend grabbed her
whilst she was switching off
the light, chased away her brother who
heard her cries and raped her, she said she told the doctor what
happened.
[10]
S testified as follows. He was sleeping. He heard someone knocking.
He woke up the complainant. The appellant appeared.
He asked him
where was his mother and others. He told him that they were not
present. The appellant asked him why they had not
switched off the
light in the kitchen. He wanted to switch off the light in the
kitchen, the appellant stopped him. The appellant
said the elder one
referring to the complainant should go and switch off the light. The
appellant then went away. The complainant
woke up. She went to the
kitchen to switch off the light.  She did not return from the
kitchen. He woke up to see what was
going on. He found the appellant
on top of the complainant.
He
was bumping on top of her. He observed through a whole between the
doors of the kitchen. In the kitchen there was light. The
light came
from a cell phone torch. The appellant was carrying the cell phone in
his hand. He did not remember in what position
was the appellant and
the complainant. The complainant was lying down but he did not
remember where faced. The appellant faced
down. The complainant when
the appellant bumped on her, she was not doing anything. He observed
and he did not do anything. The
appellant got up and fastened his
belt and he left. He ran back to the bedroom. The complainant came
and told him that the appellant
raped her. He told her that he saw.
His uncle arrived and he told him. S testified that the appellant did
not enter the bedroom
where he knocked. He stood outside and he asked
where was their mother was. The door was open. He S opened the door.
The complainant
told him to open the door. He said in the kitchen, he
did not remember whether any person was crying. He told his uncle
that the
complainant was raped but he did not know what rape means.
[11]
In the middle of the evidence of S, the
court conducted an inspection
in loco
and made the following findings.
The incident took place in an L shaped
structure.
In
the structure there is a bedroom in which the complainant and S were
sleeping.
On
the opposite end is the kitchen.
From
the bedroom door to the kitchen door it measured five footsteps. The
gap in the kitchen door is about 10 cm.
Through the hole, one could see part of
the kitchen.
One
could see the top part of a person lying on the floor on the spot S
said the appellant was lying on top of the complainant.
Through the
hole, one could not see the bench in the kitchen.
S during the inspection in loco said he
could not remember whether he saw any movement made by the person on
top of the complainant.
It
was noted that there were no electric lights fixed on the outside of
the structure of the home. From the bedroom, one could see
at the
gate to the property.
No
light came from a neighbouring property.
[12]
T[....] M[....] testified as follows.
He returned on 2 April 2017 to the
complainant's home at 4 o'clock. He worked as a taxi driver. He
parked the vehicle in the yard.
S
came
to
him
and
he
told
him
the
appellant
raped
that
complainant.
He
phoned
the
complainant.
The
complainant
confirmed
that
the
appellant
raped
her.
The complainant told him that when she
entered the kitchen, the appellant entered with her, he grabbed her,
he placed her on the
floor, and he raped her.
M[....] testified that he later took the
complaint to the hospital.
He
said he had warned the appellant not to visit their home at night,
but the complainant's mother did not heed the warning.
He did not have a problem about the
relationship between the appellant and the complainant's mother.
He assumed that they were in a love
relationship.
[13]
The Doctor Akintunde Akinola testified
as follows.
He
obtained the MBCHB degree in 1999 from the University of Lagos in
Nigeria.
He
has been practising as a medical practitioner in South Africa since
2007.
From
2013 to date he has been dealing with sexually abused children and
adults, seeing between 45 and 55 cases a month. On 2 April
2017 at
10:15, he examined the complainant and recorded the examination in
the prescribed medical examination form U88) which he
identified in
his handwriting and bearing his signature. He testified that the
complainant reported to him that 'around 05:00 on
2 April 2017 she
answered the door and she was confronted by the mother's boyfriend.
He demanded that she switch off the lights
and grabbed her into the
kitchen and forcefully kissed her.
And
he made her lie down and chased a sibling who came at her cries.
He then removed her panties and inserted
his penis into her front and her back.'
The doctor testified that he examined
her and the examination revealed the following; a whitish powdery
substance on her skirt,
a whitish fluid stain on her panties, her
weight was above average,
she
had multiple pustules which are small tiny balls or abscesses on her
body and there excoriation marks/abrasions which are signs
of
scratching, healing septic wounds as a result of infection and she
had scabies an infection by small insects causing bacteria
infection.
The doctor testified that other
significant findings were that redness was noted on the inner labia
minora, abrasions on the posterior
fourchette, annular shaped hymen
with traverse diameter measuring 12mm, redness on the complete hymen,
whitish fluid coming out
from the vagina, abrasions on the perineum.
He testified that due to the above noting he concluded that there was
evidence of blunt
hymeneal penetration.
[14]
The doctor testified that he examined
the anal orifice. There were no stains around anus; redness noted
around the anus; a fissure
(crack) noted at 6 o'clock position; a tag
(excess skin) noted at 12 o'clock; tears noted at 11, 12 and 6
o'clock of the anal orifice.
There
was a reflex dilatation of up to five millimetres noted on the anus
which means when you put pressure on the bum it opened
up to 5mm.
He concluded that the finding were
compatible with blunt anal penetration.
He testified abrasions, tears and cracks
pointed at something that happened recently. The redness he could not
describe as recent,
ongoing or chronic.
Redness may be caused by trauma,
irritation or infection. He stated that on a child of eleven (11)
years a hymeneal opening of not
more than 8 mmm is expected.
He testified the samples for DNA
examination were collected using the evidence collection kit with
serial number 13 D7AA2730 that
was handed to the police as recorded
in the medical examination form.
[15]
The appellant testified as follows. On 2 April 2017, he was with
M[....]3 and T[....] that night.
He was woken up at night when there
was burglary in a neighbour's residence at midnight. The appellant
repeated the contents of
the statement in which he disclosed the
basis of his defence. He stated that he did not enter the bedroom. He
spoke only to the
complainant. He then left and joined his two
friends who waited for him at the gate. He parted ways with them when
he left to his
home. He did not return to the home of the complainant
and he did not rape the complainant. He denied that he had a love
relationship
with the complainant's mother. He could not explain why
in the statement of the basis of defence it stated that he had a love
relationship
with the complainant's mother. He said they were close
friends. I He said it was door to another room and thyat to the
kitchen
which were not properly closed.
[16]
The record of the proceedings indicates after the appellant testified
his legal representative
requested the court to call M[....]3 and
T[....] as court witnesses.
The
learned regional magistrate summarily refused the request indicating
that M[....]3 and T[....] were defence witnesses and they
should be
called by the defence.
The
court advised the State to assist the defence to subpoena the
witnesses. The prosecutor stated subpoena
could
be
issued
if
full addresses
were
furnished
because
the
investigating officer tried to get hold
of the mentioned persons but failed.
The
matter was postponed for
the
purpose.
On
resumption
after
two
weeks,
the
appellant's
legal
representative stated that they could
not get hold of the said witnesses.
The
defence case was then closed.
[17]
The hearing of an appeal against
findings of fact is guided by the principle that in the absence of
demonstrable and material misdirection
by the trial court, its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows
them to be clearly wrong.
See
S v
Hadebe and Others
1998 (1) SACR
422(SCA)
p426b.
The
conviction of the appellant, whether he had sexual intercourse with
the complainant, and if so, whether it was without the consent
of the
complainant, is based on the evidence of the complainant. It was the
evidence of a single witness and a child. The evidence
of the
complainant as evidence of a child is required to be approached with
great caution. See
R v Manda
1951
(3) SA 158
(A) at 162H. The danger inherent in relying upon the
uncorroborated evidence of a child must not be underrated. The
imaginativeness
and suggestibility of children are only two of a
number of elements that require their evidence to be scrutinised with
care, amounting
perhaps to suspicion. The trial court must fully
appreciate the danger inherent in the acceptance of such evidence,
and where there
is a reason to suppose that such appreciation was
absent, a court of appeal may hold that the conviction should not be
sustained.
See
Manda
at
163E.
The
full appreciation of the risks associated with the evidence results
in the correct approach on the issue of probabilities.
[18]
The learned regional magistrate in her
judgment indicated that the onus was on the State to prove its case
against the appellant
beyond reasonable doubt and that there was no
onus on an accused to persuade the court of his innocence.
If the version of an accused is
reasonable possible true, he is acquitted.
The court gives the benefit of the doubt
to the accused. The court does not have to believe the accused's
version and does not have
to find that it is the truth. The regional
magistrate properly warned herself of the applicable multiple
cautionary rules relating
to evidence of children and evidence of
single witnesses. In case of a single witness, evidence to be
accepted, it is required
to be clear, concise and satisfactory in all
material respects. She stated the court in assessing evidence of
children must approach
it with caution owing to dangers inherent in
such evidence.
[19]
The learned regional magistrate at the
commencement of her judgment stated that it is not disputed that the
complainant was raped.
In
my view, this constitutes a material misdirection.
The appellant pleaded not guilty to the
charge. The plea placed in dispute all the elements of the charge.
The appellant made no admissions in
terms of section 220 of the CPA.
During
the trial at no stage was it placed on record by the defence that it
was admitted that the complainant on the date in question
was raped.
Unfortunately, the misdirection tainted
the entire approach to the evidence by the trial court.
It diluted the caution that was required
to be exercised.
I·resulted
in an assumption that the complainant was a credible reliable witness
whereas credibility was crucial in the determination
of issues.
In addition, it resulted in the
probabilities being viewed in favour of the State.
If it is accepted that the complainant
is truthful in that she was raped, it follows that she is probable
truthful in her evidence
that the appellant is the person who raped.
[20]
It is not enough to pay lip service to
the cautionary rules.
The
evidence of children in particular poses a peculiar risk.
It must be demonstrated that the
necessary caution was exercised in the approach to their evidence.
It must be shown that the evidence was
closely scrutinised, its unsatisfactory features were noted and
proper weight given to them.
Evidence
tending to corroborate or support the evidence must itself be
properly scrutinised.
The
evidence of S and that of the complainant is contradictory on whether
the appellant entered their bedroom or not.
S being nine years old late at night is
very unlikely to have woken up on his own to see what was delaying
the complainant in the
kitchen.
Further,
S stated the appellant whilst on top of the complainant had his cell
phone with its torch on in his hand whereas the complainant
stated
that the cell phone was placed on the bench.
S if he actually witnessed the rape, he
would not have failed to see that the complainant
was
crying,
if she was crying.
S testified
that he saw
the appellant on top of the complainant
raping her and fastening his belt and leaving. There is no
explanation why S did not see
the appellant causing the complainant
to stand up and hold the wall and raping her from behind. The
behaviour of Snot to report
immediately what he saw and to dispute
everything the complainant who was supposed to be in a distressed
condition was telling
him is inexplicable. The inspection
in
loco
revealed that the bench in the
kitchen could not be seen through the hole.
The complainant stated that she was
pushed onto the floor from the bench.
It
appears that S could only see through the hole far from the bench.
The complainant in the inspection
in
loco
was not invited to point out in
the kitchen the spot on which she was raped. The complainant in her
evidence said there was light
affixed to the outside wall and that
light provided lighting in the yard, in the gate and in the kitchen
but on inspection
in loco
it
was established that there was no light affixed outside the building.
The complainant could not explain why
locking the kitchen door from outside, something she was used, gave
so much problem to her.
When asked she said it was due to poor
lighting
She
also could not explain why she went back to the kitchen when she had
switched off the light in the kitchen and she was outside
not far
from her bedroom.
When
she saw the appellant coming straight to her from the gate, she could
have left the door and get into her bedroom. The complainant

testified of a discussion she had with the appellant in the kitchen
before he raped her, but in her report to her uncle and to
the
doctor, she reported of an attack, which took place unexpectedly and
quickly.
The
complainant had an opportunity to cry out for help but she did not do
so.
When
the appellant left after he told the complainant to close the doors
or to switch off the kitchen light, there is no indication
that he
knew that the complainant would be delayed in locking the kitchen
door for him to come back and find her.
It also makes no sense that in the
course of attacking the complainant the appellant would be phoning
the complainant's mother.
The
complainant made to a doctor a report that differed from her
evidence.
She
said the appellant said he wanted to have children with her; he
kissed her and he chased away her brother who came to her aid
when he
heard her crying.
[21]
It is part of the exercise of caution to
require that all available evidence be presented before court, if it
cannot be presented,
it must be explained on record why such evidence
is not available.
The
DNA evidence was crucial evidence.
Samples were collected from the
complainant.
There
was
no
explanation
for
the
failure
to
present
before
court
the
DNA evidence.
The
complainant agreed with the appellant that there were people who were
with the appellant.
The
complainant agreed that there was M[....]2 and T[....]. The appellant
said it was M[....]3 and T[....].
These
people were crucial witnesses.
The
State had a duty to disprove the alibi of the appellant. The evidence
of these witnesses would have indicated whether there
was any merit
in the alibi of the appellant. In the absence of evidence that would
have been available to the State, there is no
basis to reject the
appellant's alibi.
The
court well aware that it was faced with evidence of young children
and that no DNA evidence had been presented, could have acceded
to
the defence request to call the said witness as court witnesses as
part of its duty to approach evidence before relying on it
for a
conviction with caution.
[22]
The State relied heavily on the medical
evidence.
The
quality and strength of expert evidence is determined mainly by the
standing of the expert and the grounds given by the expert
for his
conclusions.
The
complainant suffered from severe scabies affecting her entire body.
Her private areas including the vaginal
area and the anal area would not be spared.
Scabies causes bacterial infection
resulting in itching and scratching.
It
may result in abrasions and lacerations.
Scratching is constant which results in
healing scars fresh scars or abrasions.
The doctor in his evidence gave no
reasons that the abrasions, tears or abrasions observed were not
related to scabies. The learned
regional magistrate similarly did not
in her judgment consider that the injuries observed by the doctor
could have been because
of scabies.
The
opening diameter of either anal orifice or the hymen is, in my view,
of no significance since the complainant was of a larger
size
compared to children of her age group.
In addition, an isolated forced
penetration would not necessarily result in orifice with a large
opening diameter.
There
were no injuries on the hymen.
There
was no evidence of any bloodstains on the complainant or on her
clothes. The alleged eyewitness S did not see the complainant
being
raped from her back which contradicts evidence of the complainant and
medical evidence suggestive of anal penetration.
[23]
The
State
bore
the
onus
to
prove
the
guilt
of
the
appellant
beyond
reasonable doubt. In terms of section
208 of the CPA an accused can be convicted of any offence on the
single evidence of any competent
witness.
It
is, however,
a
well-established judicial practice that the evidence of a single
witness should be approached with caution. It is required to
be clear
and satisfactory in every material respect. It is not the labels that
are given to the evidence by a judicial officer
that count.
Evidence as it appears on record must be
clear and satisfactory in all material respects.
The exercise of caution entails scrutiny
of the evidence, noting discrepancies and attaching due weight to the
discrepancies that
are found. See
R v
Mokoena
1932 OPD 79
at 80;
R
v Mokoena
1956 (3) SA 81
(A) at
85-86;
S v Webber
1971
(3) SA 754
(A) at 757-759;
Stevens v
S
[2005]n1 All SA 1 (SCA) para 17;
S
v Artman
&
another
1968 (3) SA 339
(A) at 340H;
S
v Oyira
2010(1) SACR 78 (ECG) para5.
[24]
The
evidence
looked
at
holistically
and
approached
with
caution
exhibited numerous unsatisfactory
features. It fell short of proving the guilt of the appellant beyond
reasonable doubt. It fell
short of being credible and reliable
evidence to form the basis of a conviction.
I am of the view that the conviction of
the appellant falls to be set aside.
[25]
I propose the following order:
1.
The
appeal
against
conviction
is
upheld,
the
conviction
and
sentence
is
set aside.
2.
The order of the trial court is replaced
with the following 'Not guilty and discharged'.
Mngadi
J
I
agree, it is so ordered.
Bezuidenhout
J
APPEARANCES
Case
Number
AR489/19
For
the Appellant                                  A

Hulley
Instructed
by                                         Pietermaritzburg

Justice Centre
PIETERMARITZBURG
For
the respondent                               D.

Naidoo
Instructed
by                                         Deputy

Director of Public Prosecutions
PIETERMARITZBURG
Heard
on                                               22

July 2022
Judgment
delivered on                         5

August 2022