About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2024
>>
[2024] ZAECMKHC 60
|

|

Mazosiwe v S (CA&R102/23) [2024] ZAECMKHC 60 (11 June 2024)

IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
Case No: CA&R102/23
In the matter between:
KHOLO
MAZOSIWE
Appellant
and
THE
STATE
JUDGMENT
ZILWA AJ
[1]
The
Appellant was arraigned in the Regional Court in Kingwilliamstown
on charges of Rape in contravention of s 3 of
the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act
[1]
and he was
sentenced to 5 years direct imprisonment. He was also declared unfit
to possess a firearm in terms of s 103
(1) of Firearms Control
Act
[2]
.
[2]
This appeal comes before us with leave granted by the Court
a
quo
in respect of both convictions and sentence. The
Appellant is currently on bail pending this appeal.
[3]
A brief
expos
é
of the facts as narrated by the complainant is that:
3.1
The complainant (‘
Ms
ATS
’) and the Appellant (‘
Mr
Mazosiwe’)
were not strangers to
each other. In fact, they were friends and in a common circle of
friends most of the time. They would at times
socialize and, it would
seem, they got along very well.
3.2
Some days prior to 24 January 2019 the complainant and her cousin
(‘
Ms SJ’)
ended up in the company of the
Appellant. There was an arrangement that after the complainant had
written her learner driver’s
license, on 24 January 2019, the
three of them would meet.
3.3
It is common cause that on this day they indeed met and the three of
them celebrated the
complainant’s passing of her learners
driver’s license at the King's Club situated in
Kingwilliamstown. They indulged
in tots of tequila which were on
special on the day. They left the King Club and proceeded to
McDonald's food outlet.
3.4
Ms SJ was thereafter dropped off at the homestead of the complainant.
This was done at the
latter’s request when she registered her
wish to spend a night at the Appellant’s place as the latter’s
parents
were away for a week.
3.5
The Appellant and the complainant proceeded to the former’s
homestead. Some passion
and romantic chemistry developed between them
and that ultimately resulted in the two of them engaging in
consensual sexual intercourse
which included oral sex. During the
course and in the middle of sexual intercourse, the complainant
decided to discontinue the
sexual act because it crossed her mind
that they are friends and that they are not supposed to have engaged
in sexual intercourse.
She told him to get off her as she is no
longer willing to continue with the sexual act.
3.6
The Appellant adhered to her request and got off her. He laid next to
her and at that time
no one uttered a word. After approximately 20 to
30 seconds after having stopped briefly, the latter continued and
violently violated
her.
3.7
It is this continuation of sexual penetration that is in dispute that
prompted the complainant
to lay a charge of rape against the
Appellant, as this continued sexual penetration took place against
her will, so she contended.
[4]
On the other hand, the Appellant’s sequence of events is
somewhat different.
It can be summarized as follows:
4.1
The first consensual sexual act was stopped by fatigue which was
caused by their intoxication
and the fact that it was hot. After they
had mutually stopped, he proceeded to the kitchen to get some water
and brought some for
the complainant.
4.2
The complainant was still lying in bed naked when he came back, and
they continued to sit
on the bed and had a conversation for a brief
moment. There were no signs that the complainant was upset. After
their conversation,
they started kissing and he continued to finger
the complainant before engaging in sex for the second time.
4.3
While busy with the sexual act, the complainant tapped him on his
shoulder and verbally
asked him to stop. He immediately got off and
shortly thereafter, the complainant asked him to take her home. The
Appellant complied.
He took the car keys and drove the complainant
home.
[5]
The Appellant’s grounds of appeal are that:
5.1
The Presiding Magistrate erred in finding the State’s case to
have been proved beyond
reasonable doubt in that:
a)
he erred in finding that all the elements
of the offence had been proved beyond reasonable doubt;
b)
he erred in holding that the Appellant’s version was so
inherently improbable that
it stands to be rejected out of hand as
false beyond a reasonable doubt.
5.2
The Presiding Magistrate erred, in the light of the common cause
facts, in not finding that
there was an interruption and not a
cessation and that sexual petting and intercourse resumed.
5.3
The Presiding Magistrate erred in not finding that the rape cannot be
sustained absent a
finding that:
5.3.1
the State proved its case beyond a reasonable doubt;
5.3.2   the
complainant had withdrawn her consent when sexual intercourse
resumed; and
5.3.3   the
Appellant was aware (i.e., had knowledge) that the complainant had
changed her mind.
5.4
The Presiding Magistrate misdirected himself in having regard to the
dicta
of the SCA in Venter v S
2021 ZASCA 21
(18 March 2021)
and cases there cited that “
rape is one of the most invasive
and horrendous criminal acts”
as informing his decision on
the guilt of the Appellant and/or whether the State has discharged
the onus of proving all of the elements
of the offence, whereas the
said
dicta
are relevant and properly considered in connection
with the imposition of an appropriate sentence.
[6]
There are well-established principles that govern the hearing of
appeals against findings
of fact.
[3]
An appeal court’s powers to interfere with the findings of fact
by the court
a
quo
is limited.
[4]
In the
absence of demonstrable and material misdirection by the trial court,
its findings of facts are presumed to be correct.
Such findings will
only be disregarded if the record shows them to be clearly wrong
[5]
:
‘
In
the absence of any misdirection, the trial Court’s conclusion,
including its acceptance of a witness’s evidence,
is presumed
to be correct. In order to succeed on appeal, the appellant must
therefore convince the Court of appeal on adequate
grounds that the
trial Court was wrong in accepting the witness’ evidence - a
reasonable doubt will not suffice to justify
interference with its
findings. Bearing in mind the advantage which a trial Court has of
seeing, hearing and appraising a witness,
it is only in exceptional
cases that the Court of appeal will be entitled to interfere with a
trial Court’s evaluation of
oral testimony.’
[7]
In order to determine whether the trial court materially and
demonstrably misdirected
itself, it is necessary to evaluate the
evidence as reflected in the typed record of the proceedings against
the trial court’s
findings.
[8]
As
the Court of appeal, I am quite alive to the fact that I should
proceed on the basis that the factual findings of the trial court
are
correct. This entails that I must defer to the trial court as it was
the one that was steeped in the atmosphere of the trial
and had the
opportunity of observing the witnesses testify, and drawing
inferences from their demeanour. In
Powel
and Wife v Streatham Nursing Home
[6]
Lord Wright put this
in
clearer terms as follows:
'Not to have seen the
witnesses puts appellate judges in a permanent position of
disadvantage as against the trial judges, and,
unless it can be shown
that he has failed to use or has palpably misused his advantage, the
higher court ought not to take the
responsibility of reversing
conclusions so arrived at, merely on the result of their own
comparisons and criticisms of the witnesses
and of their own view of
the probabilities of the case.'
[9]
At the same time, care should be taken not to overstate the
indubitable duty of the Court
of appeal to show deference to the
factual findings of the trial court and, as a result, render the
rights of appellants on appeal
illusory. In this regard, the
Constitutional Court dictum in the case of
Bernert
v Absa Bank Ltd
[7]
is authoritative. The Court reasoned as follows:
'What must be stressed
here, is the point that has been repeatedly made. The principle that
an appellate court will not ordinarily
interfere with a factual
finding by a trial court is not an inflexible rule. It is recognition
of the advantages that the trial
court enjoys which the appellate
court does not. These advantages flow from observing and hearing
witnesses as opposed to reading
"the cold printed word".
The main advantage being the opportunity to observe the demeanour of
the witnesses. But this
rule of practice should not be used to "tie
the hands of the appellate courts". It should be used to assist,
and not
to hamper, an appellate court to do justice to the case
before it. Thus, where there is a misdirection on the facts by the
trial
court, the appellate court is entitled to disregard the
findings on facts and come to its own conclusion on the facts as they
appear
on the record. Similarly, where the appellate court is
convinced that the conclusion reached by the trial court is clearly
wrong,
it will reverse it.'
[10]
The following facts are common cause:
10.1
the parties engaged in full consensual sexual intercourse, including
oral sex.
10.2
sexual intercourse was interrupted (on complainant’s version
because she asked the Appellant to stop
and on the Appellant’s
version because he needed a rest).
10.3
the Appellant stopped the full sexual intercourse when instructed to
do so.
10.4    the
complainant remained naked on the bed after full sexual intercourse
had stopped.
10.5    the
Appellant and the complainant continued to lie on the bed, side by
side while completely naked.
10.6    it is
the complainant’s version that she did ask him (i.e. not tell
or demand him) to take her home, which
he did.
Whether the
complainant had withdrawn her consent
[11]
The Appellant argued that the Court
a quo
erred in finding
that the evidence of the complainant (who was a single witness
regarding the rape incident) was clear and satisfactory
in every
material respect, and as such found her to be a credible witness,
when regard is had to the following:
11.1
because the complainant is a single witness, her evidence can only be
accepted as decisive, if it is found
to be clear and satisfactory in
every material respect.
[8]
11.2
that the version which the complainant gave to her friends, the
doctor and police, does not establish consistency,
and as such
adversely affects the credibility of the complainant.
11.3
the trial court erred in relying on the uncorroborated evidence of
the complainant, and erred by accepting
the evidence of the
complainant without the degree of caution required by the
circumstances.
11.4
the presiding Magistrate failed to have any or adequate regard to the
contradictions between the police statements
of the complainant and
the witness, Ms SJ, which were material and unexplained, more
particularly:
11.4.1
in court the complainant emphasized that she “
had blacked
out” (
i.e. lost consciousness) when the Appellant’s
grip around her neck increased (i.e. that he strangled her) whereas:
11.4.1.1
in her statement to the police (Exhibit ‘B’) she
indicated
that she ‘thought she may have passed out from the
strangling, but
she was not sure
; and
11.4.1.2
when examined by Dr Venter she also did not mention to him that
strangulation
caused her to lose consciousness (that it caused a
“
blackout
”).
11.4.2
in her statement to the police (Exhibit “B”)
it is
recorded that the complainant told the police that the Appellant “
bit
her boobs as well as her clitoris
” whereas, when she
testified in court and when she was examined by Dr Venter, she made
no mention that the Appellant “
bit her boobs and clitoris
”.
11.4.2.1
it must be accepted that if she had informed Dr Venter about assault

on her, he would have recorded such allegations and would have
examined her to confirm her allegations.
11.4.2.2
in assessing the credibility of the complainant’s version of

violent rape following consensual sex, the presiding Magistrate
failed to have any or proper regard to the evidence of Dr Venter
(a
state witness found to be a credible witness) that he would have
expected to find evidence of bite marks on examination. That
evidence
was simply ignored.
11.4.2.3
in her evidence in court the complainant stated that while she was
on
her way home, she sent her cousin a message that “
Kholo had
raped me
”, whereas according to her cousin, the complainant
forwarded her a message stating that “
I regret everything.
Kholo had raped me”
. The complainant when testifying in
court denied that she informed her cousin that she regretted what had
happened.
11.4.2.4
in court, the complainant stated that after the Appellant had left

the room, she “
started to cry hysterically and telephoned a
friend to inform him of what happened
”.
11.4.2.4.1
no mention of this can be found in her statement to the police (nor
is there evidence
that she told this to her cousin). The state failed
to place evidence before the court to confirm that she had,
immediately after
the rape incident, contacted a friend and told him
what had happened.
11.4.2.4.2
no evidence was placed before the court to explain why the
complainant’s friend
was not called to corroborate her version.
11.4.2.4.3
on the complainant’s version one would have expected her to
make a report to
the police. She did not do so.
[12]
For no apparent reason the Presiding Magistrate had no or proper
regard to the unchallenged fact
that the complainant’s
prescribed medication (Lyrica and Triptyiline) had side effects,
inter alia,
confusion, dizziness and memory impairment which
are exacerbated by alcohol.
[13]
On the other hand, the complainant’s evidence that she suffers
from post-traumatic stress
disorder (PTSD) was accepted without
medical evidence to support such diagnosis and that evidence was
treated as corroboration
for the rape.
[14]
It was submitted that the evidence of the complainant's cousin, Ms
SJ, does not corroborate the
complainant’s version. Ms SJ did
not, and was in no position to, testify to whether the further
intercourse was consensual
or not. This is understandable because she
was no longer present at the time. She made no contribution, and her
evidence was that
the complainant “
had told her what
happened
”. She did not elaborate.
Whether the
Appellant was aware that the complainant had withdrawn her consent
[15]
When dealing with sexual assault cases, certain principles and
decisions cannot be ignored and
are pivotal. In
Otto
v S
[9]
the
Supreme Court of Appeal held:
“
The
onus rests on the State to prove all of the elements of the offence
of rape, including the absence of consent and intention.
[10]
That is so even where, as in this case, the version put to the
complainant by the Accused’s legal representative was a denial

of any sexual contact with her.”
[16]
To sustain the conviction the State had to prove, beyond a reasonable
doubt, that the Appellant
was aware that the complainant had
withdrawn her consent. According to the record the State failed to do
so.
[17]
Even if the evidence supports a finding that the complainant had
indeed withdrawn her consent,
there is no evidence to support the
finding that the Appellant was aware that the complainant had changed
her mind. The basis of
the Magistrate’s rejection of the
Appellant’s evidence of a genuine belief that the complainant
had not withdrawn her
consent is not clear. The Magistrate’s
exposition of the facts was that the complainant repeatedly asked the
Appellant to
stop and that the latter well knew that he was being
asked to stop but he continued, nevertheless. Unfortunately, the
evidence
suggests the converse.
[11]
[18]
Whether there really was a mistake (which excludes “
intention
”)
is a question of fact which can be determined by considering the
Appellant’s true state of intelligence, his background
and
psychological disposition and his conception of the relevant events
and circumstances.
[12]
[19]
The test to determine “
intention
”
is subjective, i.e., it is not whether a “
reasonable
person
”
in the accused position would have made a mistake. The test being
subjective, it requires taking into account the considerations

present at the time. The question is whether “
the
accused had mistakenly believed that the complainant had
consented
”
[13]
.
[20]
In light of the undisputed evidence of Dr Venter and Ms Fielding that
it was reasonable possibly true that
any delay on the part of the
Appellant in responding to a request to stop following prior
consensual oral and penetrative sex,
was due to alcohol and the
commonsense and expert evidence that the Appellant may have taken a
while to get the message. I will
elaborate on this issue later in
this judgment.
[21]
The clinical psychologist, Ms Fielding
[14]
,
in assessing the Appellant’s “
general
functioning and personality style
”
considered:
21.1
the Appellant’s true state of mind (his degree of intelligence,
background and psychological disposition);
and
21.2
the Appellant’s conception of the relevant events and
circumstances.
and found it to be highly
unlikely that the Appellant would have ignored the complainant’s
call for him to stop having sex
with her. Why would the Appellant not
have done so given that he had already had full sexual intercourse
with the complainant and
hoped to start a relationship with her?
According to Ms Fielding, the Appellant genuinely, honestly and
bona
fide
believed that the complainant did not withdraw her consent.
[22]
On sentence the Appellant argued that the Magistrate misdirected
himself in:
22.1
imposing a sentence of five years direct imprisonment as the sentence
is shockingly inappropriate and harsh.
22.2
attaching insufficient weight to the Appellant’s personal
circumstances and erred in overemphasizing
the interests of society,
complaint, and the gravity of the offence. No regard was had to the
unusual circumstances and the common
cause facts of consensual
intercourse.
22.3
failing to consider the Appellant as suitable candidate for a
sentence of correctional supervision, in terms
of Section 276(1)(h)
or (i) of the CPA.
22.4    failing
to exercise his sentencing discretion properly so as to reflect an
appropriate balance between the seriousness
of the particular offence
and the need to avoid lengthy imprisonment.
Discussion
[23]
What underpins the State’s case, it appears, is that the
complainant withdrew her consent
as she was entitled to do so, and
that the Appellant, against her wishes, continued and violently
assaulted her. The State’s
case is further that all that
happened after the Appellant had conducted an extended campaign to
pursue the complainant to form
a romantic relationship with her and
have her as his girlfriend. It is clear that he had his eye on her
since they had been youngsters
at a school in Kingwilliamstown.
[24]
It also bears mentioning that this case falls within the
category of alleged sexual violence committed in the context of an
intimate
interaction between the Appellant and the complainant.
Consequently, it can be particularly difficult to navigate given
their relationship
(dating back to their high school days),
familiarity coupled with the fact that the parties would sometimes
hang out together prior
to an allegation of rape by the complainant.
[25]
This alleged rape followed after the consumption of alcohol, namely,
six shots of tequila and
one or two beers according to Ms SJ who
testified on her behalf. All of that was on top of medication that
had a side-effect of
impairing cognition, memory and also had to do
with the memory loss and even hallucinations. All of this was
followed by full sexual
intercourse in which the complainant was a
willing participant, which stopped without any difficulty. The
complainant, on her version,
had changed her mind because it had just
dawned on her that they were only friends and that this was not the
right thing to do.
After this first episode, on the complainant’s
version, when the sexual conduct had stopped, she continued to lie
naked on
the bed, she didn't get up, she didn't get dressed, she did
not leave the room, but she allowed the Appellant to rejoin her on
the bed and lie next to her naked.
[26]
It appears, if the complainant’s version is anything to go by,
that what happened next
was that the Appellant had a sudden change of
personality. He went from cultivating a romantic relationship with a
girl he has
had his eye on, to a proverbial sex craved monster and an
out-of-control violator of woman’s rights, who violently
assaulted
her private parts, and bit her. But again, he stopped
nevertheless, without completing the sex act, when the complainant
demanded,
forcefully, that he stop. The Appellant then took the
complainant home in his car when, on the complainant’s
evidence, she
was in fear of her life and terrified. This was then
followed by profuse and excessive apologies from the Appellant. This
is improbable,
in my considered view.
[27]
Against all of this, the Appellant is in full agreement with the
complainant with regard to the
first sexual escapade. Their versions
are in all respects similar. He differed from her when she came to
explain that he turned
into a proverbial sexual monster. He said that
consensual intercourse resumed after a break, but then ultimately
stopped when she
tapped him on the shoulder and spoke to him face to
face during the sex act, asking him to stop, he stopped. He agreed
the sex
act was interrupted and never completed. As to subsequent
events, it is difficult to know what should be made of them as it
amounts
to speculation, in my view. The accusation of rape, an
explanation for the week which elapsed before reporting the assault,
the
social media campaign labelling the Appellant as a rapist. There
could be a few possibilities which can suggest themselves including,

but not limited to, the fact that the Appellant may have upset her by
not stopping immediately or soon enough for her liking. In
this
regard, Ms Fielding's evidence is illuminating but it appears that
the Magistrate had a scant regard to it notwithstanding
her vast
experience and the fact that there was no opposing expert evidence.
Nowhere did the Magistrate say that her expert testimony
was in
anyway helpful.
[28]
As I have indicated, the complainant’s cognition and memory
were impaired by alcohol and
drugs. In this regard Dr Venter who had
a very impressive Curriculum Vitae, who testified on behalf of the
State and who qualified
himself as an expert, when confronted with
what one Professor De Cloete said about the effects of the two drugs
said he agreed
100% with the Professor when he said these drugs had
the above-mentioned side effects.
[15]
[29]
It is not difficult to glean that the Magistrate obviously liked the
complainant as a witness,
and he found her to be a single witness
whose evidence was satisfactory in all material respects. That being
the case, the issue
then becomes as to on what conceivable basis the
Magistrate was entitled to reject the Appellant’s version as
false beyond
a reasonable doubt. There are lots of formulations in
the authorities of the test to be applied. In the case of
National
Employers’ General Insurance Co. Ltd v Jagers
[16]
,
sitting
as a Full Bench, Eksteen AJP had an occasion of stating the
following:
“
it
seems to me, with respect, that in any civil case, as in any criminal
case, the
onus
can ordinarily only be discharged by adducing credible evidence to
support the case of the party on whom the
onus
rests. In a civil case the
onus
is obviously not as heavy as it is in a criminal case, but
nevertheless where the
onus
rests on the plaintiff as in the present case, and where there are
two mutually destructive stories, he can only succeed if he
satisfies
the Court on a preponderance of probabilities that his version is
true and accurate and therefore acceptable, and that
the other
version advanced by the defendant is therefore false or mistaken or
falls to be rejected. In deciding whether that evidence
is true or
not the Court will weigh up and test the plaintiff’s
allegations against the general probabilities. The estimate
of the
credibility of a witness will therefore be inextricable bound up with
the consideration of the probabilities of the case
and, if the
balance of probabilities favours the plaintiff, then the Court will
accept his version as being probably true. If however
the
probabilities are evenly balanced in the sense that they do not
favour the plaintiff’s case anymore than they do the

defendant’s, the plaintiff can only succeed if the Court
nevertheless believes him and is satisfied that his evidence is
true
and that the defendant’s version is false.”
[30]
The above exposition is a useful test in my view. It is my view that
the Magistrate had an imperfect and
selective understanding of the
factual evidence. He seemed not to have had regard to what Dr Venter
said and as a result thereof
he started at a low ebb. For instance,
he started his judgment on the first page by explaining that there
was an arrangement that
after the complainant had written her
learners driver’s license on 24
th
January, the three
of them would meet. It is common cause that on this day they indeed
met and the three of them celebrated the
complainant’s passing
of her learner’s driver’s license at the King Club. This
is incorrect. The correct version
is that the complainant had passed
her driver's licence some days before, the Appellant had helped with
transport, the three of
them went off to celebrate at the Spur
restaurant. At Spur they arranged to meet on a later occasion at the
King Club because tequila
shots were on special. This is not nit
picking, in my respectful view. This is important because it is part
of the Appellant’s
case that he was pursuing the complainant
romantically. So, this is an important step that the Magistrate left
out.
[31]
The Magistrate went on to say:
“
During
the course of sexual intercourse, the complainant decided to
discontinue the sexual act and alerted accused to the decision,
but
the accused having stopped briefly continued, albeit now as per
complainant’s version. It is this continuation of sexual

penetration that is apparently in dispute.”
[32]
This is a misstatement of the complainant's own version.
[33]
On the issue of alcohol consumption, the Magistrate held that the
complainant should be forgiven
for contradictions. The complainant
indicated that she had two tequilas whereas her cousin testified that
she had six and the Appellant
said six or more and other ciders and
further alcohol. The Magistrate said that she should be forgiven
because she was an impressive
witness. He said her evidence was
satisfactory in all material respects. In my view, a contradiction on
the amount of alcohol consumed
in the circumstances of this matter is
very material. It goes to the effect that the alcohol might have had
when combined with
the two drugs. Interestingly, the Magistrate found
that the alcohol evidence was inconclusive, and no reliance can be
placed on
it i.e., alcohol mixed with the drug.
[34]
Another material contradiction was between the complainant’s
evidence and her police statement.
She told the police that the
Appellant began fingering her in and around her vagina without her
permission. This is inconsistent
with her evidence that the first
sexual episode was consensual.
[35]
The question still remains as to why the Magistrate decided to reject
the Appellant’s version.
There must be a good reason to find
that his evidence was false. One wonders as to what does not have the
ring of truth (as the
Magistrate puts it) in the Appellant’s
evidence, if regard is had to the background of an evening out at the
King Club with
tequila shots, then going off and stopping for food,
and then getting rid of the cousin since the complainant wanted some
time
with the Appellant, going off to the Appellant’s house
where the parents were absent, engaging in petting in the lounge,
moving into the bedroom, getting completely naked, each undressing
themselves, having full consensual sex in which the complainant
was a
willing participant, for her to say at some point - this is not
right, we are just friends, better stop.
[36]
The Magistrate found Dr Venter's evidence as credible when he
indicated that his evidence was
accepted in all respects
[17]
.
He went on to say the complainant’s evidence - that it was
possible she took the medication the same month - be ignored,
as was
Dr Venter’s evidence that he prescribed both drugs on 18
January. So, the Magistrate found that there was no evidence
that the
drugs were having any effect on the complainant at the time because
she didn't seem wobbly on her feet, and she didn't
seem impaired.
Clearly, the Magistrate did not understand the part about the loss of
memory and that she may have suffered hallucinations,
and that her
cognitive faculties might have been affected. He ignored that and he
said even if there was an impact, it is not known
whether the drugs
were in her bloodstream at the time. However, Dr Venter testified
unequivocally that these drugs have a long-lasting
effect in the
bloodstream. It was common cause that he prescribed them on 18
January 2019. The complainant went to the doctor because
she was
suffering from migraines, and she felt that something needed to be
done about it. In all likelihood, she got the script,
went to the
pharmacy, got the drugs and drank them and that was on 18 January and
some 3 days later the offence happened. It is
improbable that the
complainant could not have taken the medication whereas her condition
needed attention.
[37]
Mr
Vena,
counsel
for the State argued that there was no evidence that the complainant
did take the drugs and mix them with alcohol. As I
have indicated
earlier, this is improbable and outlandish. He further argued that
there was no reason for the Magistrate to venture
into the side
effects that may be caused by those drugs mixed with alcohol. He
sought to bolster his argument by arguing that even
the Appellant did
not observe these side effects on the complainant. My view is that
this argument cannot be sustained considering
that even the Appellant
was under the
influence
of alcohol
[18]
and, secondly, he is not an expert in observing such side effects.
[38]
It is further so that the Magistrate did not take heed to the fact
that Dr Venter said that there
were no marks on the breasts, as the
complainant alleged that she had been bitten by the Appellant during
the alleged violent rape.
The doctor went further, and he was quite
clear that had the complainant been bitten, the marks would have
remained for a period
of five days, and he would have seen them when
he examined the complainant. Surely, had the Magistrate had some
regard to that,
that would have, certainly, affected the credibility
of the complainant. That is a material misdirection, in my view, and
it should
not be to the State’s benefit but the defense. This
fact was correctly conceded by
Mr Vena
. He further conceded
that it becomes material in the sense that the Magistrate did not
take this into account in his reasoning
because he found the
complainant to be an unblemished witness.
[39]
Mr Vena
further tried to persuade us on the issue of the
complainant suddenly changing her mind and asked the Appellant to
take her home
after the second sexual episode. His argument is that
the Appellant should have noticed some awkwardness and had he asked
himself
what the cause was, he would have established that it was
because of the consent that was withdrawn. I have some difficulty
with
this analogy and
Mr Vena
correctly conceded that there
can be many inferences that can be drawn from that. Even though he
argued that his preferred inference
is that there was something wrong
happened, he did not rule out the following inferences or scenarios
as reasonably possible:
39.1
That the Appellant could have been fed up with being stopped midway
and did not have a problem when the complainant
wanted to be taken
home; or
39.2
That, since the Appellant had been eyeing the complainant for years,
now that it came to fruition on that
particular evening – his
dreams were being fulfilled, everything was happening but somewhere
during the course of all that
she said, ‘
no stop
,
I
don’t want this anymore’.
If regard is had to Ms
Fielding’s evidence, this may well have impacted on him quite
seriously, and probably would on any
youngster who feels ‘have
I done something wrong, what have I done’ – so he
withdraws. He wonders whether he
has ruined his newly born
relationship, without having raped or done anything wrong. It can be
reasonably possibly true that the
Appellant sat with his head
hanging, he did not know what to say or do but when he suddenly
received a message saying, ‘
you raped me’,
he
reacted as he did.
[40]
In addition to the above scenarios, Ms Fielding suggested a further
scenario under cross-examination
which unfolded as follows:
“
PROSECUTOR:
What is wrong, ja. Okay. And in this case the accused person told the
court himself whilst he was giving
evidence- in- chief. That is his
version that I would not say it was a little bit longer than the one
of the victim but he said
that whilst we were busy the second time
having sex, the victim tapped me on my shoulder and said stop. And I
got off her. Then
I asked the accused, did you ask her why you said I
must stop because this is the lady that you have been wanting to have
a relationship
with for a very long time and we are both enjoying
did. Did you because I would expect that from a man want to please
the woman
that he loves, baby, what is wrong, why do you want me to
stop? He said no, he did not ask it. Okay, you do not know.
MS
FIELDING:
I think that, I would expect that he would say what is wrong. But I
would
also think that he would be in quite a state of shock and kind
of maybe not want to talk about it straightaway and do what she
wanted. If she said, I want to go home that he would say, okay, well,
I will take you home. Hoping that tomorrow they could sort
it out or
sometime, you know, that this is not the end of the relationship.
PROSECUTOR:
And also the version of the state is, I am sorry of the accused is
that the victim was supposed to
sleep over. She brought her bag with,
her clothing that she was going to wear the following day and on that
night she said no,
take me home. And he did not ask why must I take
you home because this is the lady that she loves and would assume
that you would
want to see that she is happy, he would want to please
her. What is wrong, why do you want to go home, that was never asked
from
his victim.
MS
FIELDING:
One could also say that if he wanted to please her and she said she
wants
to go home and he was very aware of not abusing her and doing
what is right, that is the first thing he would do then is take her

home.
PROSECUTOR:
Okay.”
[41]
During cross-examination of Ms Fielding, the Prosecutor sought to
pigeonhole the Appellant’s
apology to refer to the alleged
rape. Ms Fielding maintained that the apology was referring to the
failure to stop timeously and
resulting to the complainant being hurt
emotionally. This episode resulted in the Magistrate interjecting and
referring the parties
to the transcribed record of the complainant’s
evidence. It went as follows:
“
COURT:
Yes, I do have the transcribed record here so if you are talking in
chief, she …[inaudible]
in chief. So you are referring to the
messages in chief, Ms Hasheni?
PROSECUTOR:
Yes, evidence of
the victim in chief and the response of the accused. And the same
response as the ask the accused during cross
examination
…[inaudible].
COURT:
Thank
you, in chief this was this was her evidence.
“
The
message said that what you did was rape. And that I asked you to stop
and you did not stop. And then I told him that I never
want to see
him again. After that I went to sleep and when I had woke up he had
replied. He replied and said that he knows what
he did was wrong and
that he asked, that I asked him to stop and he did not stop. Then he
sent a series of messages that said that
he regrets doing what he did
and he is sorry for hurting me.”
MS
FIELDING:
Sorry for?
COURT:
Hurting me.
“
He
went on to say he took it too far and that he is heartbroken broken.
And then the messages went on to say that he wishes me joy
and
happiness and that he is sorry for not protecting me and honoring me.
She replied and I asked him did you come? In other words
did you
ejaculate and he replied no.”
And then she blocked
his number thereafter. That was the actual context of the text
message she referred to in chief according to
her evidence.
MS
FIELDING:
I suppose the question that I would be
asking is when he said what I did was wrong, was he referring to not
stopping immediately
or was he referring because there were the two
things that went before. She said it was rape. He said I am sorry, I
did not stop
when you asked me to. Now when he said it was wrong, did
he mean and his regret, was that to do with not stopping when she
asked
him to immediately or was it to do with the rape accusation
.
Being a very sensitive person, and as I said, I just looked at my
notes here. That he would question his own perceptions if they
differ
from people he values. And can cause inappropriate guilt and consent
self-disgust. That is under 4.2.3. The sixth point
there. So my
pictures of this person why is being woke, very sensitive to being a
good person and very caring of women and very
aware of things like
ant kind of abuse. Now someone accuses him of that he is going to
overeact. So he is going to say she is thinking
I have done this
terrible thing. He said, I did not stop, you are right I did not
stop. But or he is saying, I am sorry I raped
you. I think this has
to be
but all I am pointing out
is it could be either that he was responding to
.
COURT:
It could be either, yes.”
(underlined
for emphasis)
[42]
What is clear from the debate is that there is doubt whether the
Appellant was apologizing for
not stopping soon enough for the
complainant’s liking or for the alleged rape. This remains
unclear to sustain conviction,
in my view.
[19]
[43]
Ms Fielding’s expert testimony, which was never disputed, on
the state of mind of the persons
engaged in a sexual act becomes
relevant in establishing intention. Her evidence in chief unfolded as
follows:
“
MS
FIELDING:
No. He is not an aggressive person, he would not be physically
aggressive.
MR
KOEKEMOER:
And if she had
asked him to stop, would he be the type of person who would ignore
that and just carry on?
MS
FIELDING:
I wrote those words down because I found it
quite interesting that she said he ignored her and he said he did not
know.
As a sex therapist which is
part of my training, there are times in the human sexual response
where the ability to respond to external
stimuli is shut off by the
actual response of the body at the time. And the brain can only deal
with a certain of stimulation and
so I do understand that it is quite
possible that she I want to stop. And he if he was at an intense
moment of physical and there
is evidence in the literature, and he
was at an intense moment, he would not immediately get the message
and that may take time.
Or some other kind of intervention on her
part like pulling away or something to let him know wait, she wants
to stop. So that
is how I would understand that she would experience
herself as being ignored and he would still be thinking everything is
fine
. But that time would be
very short.”
(underlined
for emphasis)
[44]
It remains a concern as to why this material expert testimony was
never considered by the Magistrate
in the absence of the opposing
expert testimony suggesting the contrary. Clearly this is a material
misdirection especially when
this is considered against the
complainant’s version under cross-examination which went as
follows:
“
MR
KOEKEMOER:
And did he listen to what you asked him to do? Did he then got
off
you?
MS
SOKUTU:
Yes. He listened.
MR
KOEKEMOER:
If he wanted to
rape you, you agree, he could have carried on.
MR
SOKUTU:
He did not carry on so …[intervenes]”
[45]
A
proper approach to evaluation of evidence in a criminal matter,
bearing in mind that the onus is on the prosecution to prove its
case
against the accused beyond reasonable doubt, the current state of the
law is settled. What Nugent J said in
S
v Van der Meyden
[20]
on this score is instructive. The learned Judge said:
'The onus of proof in a
criminal case is discharged by the State if the evidence establishes
the guilt of the accused beyond reasonable
doubt. The corollary is
that he is entitled to be acquitted if it is reasonably possible that
he might be innocent (see, for example,
R v Difford
1937 AD 370
especially at 373, 383). These are not separate and independent
tests, but the expression of the same test when viewed from opposite

perspectives. In order to convict, the evidence must establish the
guilt of the accused beyond reasonable doubt, which will be
so only
if there is at the same time no reasonable possibility that an
innocent explanation which has been put forward might be
true. The
two are inseparable, each being the logical corollary of the other.
In whichever form the test is expressed, it must
be satisfied upon a
consideration of all the evidence. A court does not look at the
evidence implicating the accused in isolation
in order to determine
whether there is proof beyond reasonable doubt, and so too does it
not look at the exculpatory evidence in
isolation in order to
determine whether it is reasonably possible that it might be true.'
[46]
Van
der Meyden was cited with approval in
S
v Chabalala
[21]
in which Heher JA said:
'The correct approach is
to weigh up all the elements which point towards the guilt of the
accused against all those which are indicative
of his innocence,
taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides and,
having done so,
to decide whether the balance weighs so heavily in favour of the
State as to exclude any reasonable doubt about
the accused's guilt.'
[47]
The
concept of 'proof beyond reasonable doubt' has been a subject of
judicial discussion in numerous judgments made by our Courts.
I do
not find it necessary to rehash the principles appertaining thereto
in this judgment, suffices to reiterate that proof beyond
reasonable
doubt does not equate to proof 'beyond all shadow of doubt' or
'absolute certainty' as to the guilt of the accused.
[22]
[48]
The
common law crime of rape was abolished by the Criminal Law (Sexual
Offences And Related Matters) Amendment Act (‘Sexual
Offences
Act’)
[23]
that took
effect on 16 December 2007 when the legislature settled for an
extensive definition of rape. Section 3 thereof has the
following
provisions:
'Any person ("A")
who unlawfully and intentionally commits an act of sexual penetration
with a complainant ("B"),
without the consent of B, is
guilty of the offence of rape.'
[49]     I
need to highlight that for purposes of s 3, 'consent' is defined in s
1(2) of the Sexual Offences Act
as 'voluntary or uncoerced
agreement'. Section 1(3), in turn, lists instances where a
complainant would be taken not to have voluntarily
or without
coercion agreed to an act of sexual penetration.
[24]
[50]
In
analysing s 3 of the Sexual Offences Act, I first deal with the
concept of 'consent' as defined in s 1(2) with special reference
to
the word 'agreement'. In my mind, such a word suggests the meeting of
the minds of the willing participants to engage in penetrative
sexual
intercourse. The Sexual Offences Act explicitly requires that consent
must be 'given consciously and voluntarily, either
expressly or
tacitly by persons who have the mental capacity to appreciate the
nature of the act consented to. The consent to a
penetrative sexual
act must be based on true knowledge of the material facts relating to
the act in question.
[25]
[51]
Undoubtedly,
intention (
mens
rea
) is
a prerequisite for a conviction as it is an integral part of the
definition of the statutory crime of rape. X must know that
Y had not
consented to a penetrative sexual act.
[26]
The accused may 'escape [criminal] liability on the ground of absence
of knowledge of unlawfulness of his conduct if he [or she]
believed
the complainant . . . was consenting.
[27]
[52]
In my view, the Learned Magistrate paid little regard to the fact
that the complainant and the
Appellant were intoxicated, if regard is
had to the amount of alcohol they consumed on the day. The
complainant’s level of
intoxication was even higher if regard
is had to the fact that he mixed alcohol with drugs. The evidence of
Dr Venter, on the effect
of the drugs when mixed with alcohol, was
never disputed, namely,
amnesia, confusion, disturbance in
thinking and hallucination
. These were serious impairments on the
complainant’s part and it was a serious misdirection for the
Magistrate to accept
her evidence without caution. There are chances
that the complainant was not in a complete good state of mind hence
she realized
midway that she was doing something she was not supposed
to do. However, her poor state of mind at the time cannot translate
to
absence of consent thereby proving all the elements of rape. It is
highly possible that her recollection of the version of events
was
also compromised and her reliability was thus in doubt.
[53]
As narrated above, there are a number of inconsistencies in the
evidence led in support of the
State’s case as well as the
defence. The court
a
quo
was
therefore faced with two mutually destructive versions and in the
circumstances the evidence must be considered and evaluated

holistically in order to determine whether the State has discharged
the onus it bears.
[28]
[54]
Logic dictates that, where there are two conflicting versions or two
mutually destructive stories,
both cannot be true. Only one can be
true. Consequently, the other must be false. However, the dictates of
logic do not displace
the standard of proof required either in a
civil or criminal matter. In order to determine the objective truth
of the one version
and the falsity of the other, it is important to
consider not only the credibility of the witnesses, but also the
reliability of
such witnesses. Evidence that is reliable should be
weighed against the evidence that is found to be false and, in the
process,
measured against the probabilities. In the final analysis
the court must determine whether the State has mustered the requisite

threshold — in this case proof beyond reasonable doubt.
[29]
[55]
Insofar as the evidence of Ms Fielding is concerned,
the
Magistrate decided not to rely upon her evidence particularly with
regards to the Appellant’s state of mind during the
sexual act,
so as to establish the element of intention. The Learned Magistrate
was obliged, in my view, to rely on all her evidence,
save where it
had been impeached. None of her evidence was impeached by any expert
but he completely disregarded her evidence in
his evaluation of the
evidence. The use of emotive language by the Magistrate in evaluation
of the evidence before him is unhelpful
and it only served to
obfuscate the fact that he had overlooked dealing with important
aspects.
[56]
The duty is on the State which bears the onus of proving the guilt of
Mr Mazosiwe ‘beyond
any reasonable doubt’ and the latter
needed to show only that his version is ‘reasonably possibly
true’.
[30]
In my
considered view,
the
version of the complainant casts a shadow of unreality over the
thrust of her evidence. Her version amounts to no more than
a
pregnable veil of incongruity when the contrasting versions are
analysed in the context of each other.
[57]
The failure on the part of the Court
a
quo
to properly consider all the evidence in his evaluation and
consideration of whether the State had discharged the onus upon it,

was in the circumstances, in my view a material misdirection and
patently wrong.
[31]
[58]
In light of the view I am taking in respect of conviction, I do not
find it necessary to deal
with the appeal on sentence.
[59]
In the circumstances, the following order shall issue:
59.1
The appeal against conviction is upheld.
59.2
The order of the court
a quo
is
set aside and replaced with the following  order:
“
The
accused is found not guilty and acquitted.
”
H ZILWA
ACTING JUDGE OF THE
HIGH COURT
I agree
R. GRIFFITHS
JUDGE OF THE HIGH
COURT
Appearances:
For Appellant:
Adv RP Quinn SC
Instructed by:
Hutton
& Cook Attorneys, Kingwilliamstown c/o Huxtable Attorneys,
Makhanda
For Respondent:
Adv Vena
Instructed
by:
Director
of Public Prosecutions, Makhanda
Date Heard:
13 March 2024
Date Delivered:
11 June 2024
[1]
32
of 2007
[2]
60
of 2000
[3]
R
v Dhlumayo and Another
1948
(2) SA 677 (A)
;
S
v Hadebe and Others
1997
(2) SACR 641
(SCA)
645E-F.
[4]
S
v Francis
1991
(1) SACR 198 (A)
198I-199A.
[5]
Ibid
[6]
Powel
and Wife v Streatham Nursing Home
1935 AC 243
at 265
[7]
Bernert
v Absa Bank Ltd
[2010] ZACC 28
;
2011 (3) SA 92
(CC);
2011 (4) BCLR 329
(CC) at para
106
[8]
S
v Leve
2011
(1) SACR 87 (ECG)
[9]
Otto
v S
[2017]
ZASCA 114
[10]
Mugridge
v S
[2013]
ZASCA 43, 2013 (2) SACR 111 (SCA)
[11]
The
complainant testimony was that:
“
After
the completion of consensual sex, after the accused had stopped
consensual sex at my request, the accused then proceeded
to finger
me without my consent. I asked him to stop manipulating with his
finger. I pushed his hand away from my vagina while
he was trying to
touch me and I asked him to stop. After penetration, after full
sexual intercourse I screamed - Kholo, you are
raping me, you are
raping me.”
This complainant’s
version suggests one instance and not repeated instances asking to
stop the
rape (full intercourse with penetration
).
[12]
S v
Reabow
2007 (2) SACR 292
(ECD) at para 20 - 21
[13]
S
v Makgatho
2013
(2) SACR 13
(SCA) at para 10; Snyman: Criminal Law Seventh Edition
at page 168
[14]
She
was registered in 1987 and has been practicing as such for 35 years.
[15]
MR
KOEKEMOER:
At
the next page where there is – this is paragraph 10. It refers
to Lyrica that medication and then paragraph 11, it deals
with the
side effects. He says
amnesia,
confusion, dizziness, balance impairment and in coordination,
disturbance in thinking, primarily related difficulty of
attention,
concentration and hallucination
.
Now, if she had been taking that medication, and I mean I know
you've said that she had been taking trampoline before this
incident.
MR
VENTER:
Yes
MR
KOEKEMOER:
If she had in fact also been taking Lyrica,
that also would have certain side effects on her. If she was taking
that medication
as well. This is now Lyrica.
MR
VENTER:
Yes,
if she's had those side effects
and she's been prescribed those side effects in the past 18 days, is
not something that is going
to come and go
.
That type of things that you're referring the side effect profiles
specifically with the paraglabolins which Lyrica is one of,
is not
something that is going to come and go. You know you have it one
moment and you don't have it the next.
It's
long acting drugs these, that over periods will give you those
effects and there's no ways that you can function then with
those
things
. You need to write that
in the inserts and stuff like that. But it's not going to just
appear out of the blue and disappear and
come and go like that. It's
not the type of reaction that we experience long acting drugs, with
Trepiline peeling and Lyrica,
where those things is going to come
and go.
It will be there all the
time
.
MR
KOEKEMOER:
Now, if she had taken this, this medication,
and I'm talking here about Lyrica and Trepiline, at the time that
this incident happened.
It was on the 24 January 2019.
MR
VENTER:
Yes
MR
KOEKEMOER:
If that happened and she also had consumed
alcohol, let's not dispute that she head didn't consumed alcohol.
MR
VENTER:
I
cannot dispute.
MR
KOEKEMOER:
With the consumed alcohol. If that had been
what was taken then would you say she could have been confused in
regards to what
happened that night?
MR
VENTER:
Very
definitely with alcohol if those drugs was taken with alcohol, yes
.
MR
KOEKEMOER:
Memory impairment is some of the consequences?
MR
VENTER:
Yes
MR
KOEKEMOER:
Depression?
MR
VENTER:
Yes
MR
KOEKEMOER:
Incoordination?
MR
VENTER:
Yes
MR
KOEKEMOER:
Did I actually mention to you memory
impairement
?
MR
VENTER:
Yes,
very definitely. Alcohol with these two drugs, as the professor or
the person here says, those are definitely alcohol with
those two
drugs, definitely can enhance those, the symptoms and things that
you mentioned there
.
(underlined for emphasis)
[16]
National
Employers’ General Insurance Co. Ltd v Jagers
1984
(4) SA 437
(ECD) at 440 D-G
[17]
Pg. 37 of the Judgment reads:
The
medical evidence of Dr Venter needs no scrutiny and the Court will
accept his evidence as credible and reliable.
[18]
Understandably,
there was some dispute whether the Appellant and the complainant
were under the influence of alcohol or drunk
after taking more than
six shots of tequila. However, a mere search on Google of the words
‘
can
you be drunk when having 6 tequila shots’,
the
results read thus “
The
general rule of thumb is you should start feeling moderately drunk
after 3 drinks and totally drunk after 4-5 drinks within
an hour.
Anything more than 4 shots in one hour can be dangerous as it may
lead to blackouts and alcohol poisoning.”
[19]
This
is contrary to the Magistrate’s mistaken understanding of what
happened which permeated to his finding, when he sought
to summarize
the evidence as follows:
“
After
20 to 30 seconds she testified that accused climbed back on top of
her and despite her protestations and having warned him
verbally
that he is now committing rape, he without her consent started to
sexually penetrate her.”
[20]
S v Van
der Meyden
1997 (2) SA 79
(WLD) at 80H-81B;
2001 (2) SACR 97
(Van der Meyden)
[21]
S v
Chabalala
2003 (1) SACR 134
(SCA) at para 15
[22]
S v
Ntsele
1998 (2) SACR 178
(SCA);
S
v Mashiane en Andere
1998 (2) SACR 664
(NC) and the cases therein cited.
[23]
32
of 2007
[24]
See: s 1(3) which reads:
'(3)
Circumstances in subsection (2) in respect of which a person ('B')
(the complainant) does not voluntarily or without coercion
agree to
an act of sexual penetration, as contemplated in sections 3 and 4,
or an act of sexual violation as contemplated in
sections 5 (1), 6
and 7 or any other act as contemplated in sections 8 (1), 8 (2), 8
(3), 9, 10, 12, 17 (1), 17 (2), 17 (3) (a),
19, 20 (1), 21 (1), 21
(2), 21 (3) and 22 include, but are not limited to, the following:
(a)
Where B (the complainant) submits or is subjected to such a sexual
act as a result of-
(i)
the use of force or intimidation by A (the accused person) against
B, C (a third person) or D (another person)
or against the property
of B, C or D; or
(ii)
(ii) a threat of harm by A against B, C or D or against the
property of B, C or D;
(b)
where there is an abuse of power or authority by A to the extent
that B is inhibited from indicating his or her unwillingness
or
resistance to the sexual act, or unwillingness to participate in
such a sexual act;
(c)
where the sexual act is committed under false pretences or by
fraudulent means, including where B is led to believe by A that-
(i)    B
is committing such a sexual act with a particular person who is in
fact a different person; or
(ii)
such a sexual act is something other than that act; or
(d)
where B is incapable in law of appreciating the nature of the sexual
act, including where B is, at the time of the commission
of such
sexual act-
(i)
asleep;
(ii)
unconscious;
(iii)
in an altered state of consciousness, including under the
influence of any medicine, drug, alcohol or other substance, to the

extent that B's consciousness or judgement is adversely affected;
(iv)
a child below the age of 12 years; or
(v)
(v) a person who is mentally disabled.'
[25]
S v
Nitito
[2011] ZASCA 198
para 8.
[26]
R v K
1958 (3) SA 420
(A) at 421;
R
v Z
1960 (1) SA 739
(A) at 743A-745D.
[27]
Burchell Principles of Law 5ed at 414 paras 235-236.
[28]
S
v Chabalala
2003(1)
SACR 134 (SCA) para 15. “
The
trial court’s approach to the case was, however, holistic and
in this it was undoubtedly right: S v Van Aswegen 2001(1)
SACR 97
(SCA). The correct approach is to weigh up all the elements which
point towards the guilt of the accused against all
those which are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities, and improbabilities
on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the State as to exclude any reasonable
doubt
about the accused’s guilt.”
[29]
S
v Janse van Rensburg
2009
(2) SACR 216
(C)
at
para 8
[30]
R
v Difford
1937
AD 370
at 373.
S
v Shackell
2001
(4) SA 1
(SCA) at para [30] -“
Though
I am not persuaded that every one of these suggested inherent
improbabilities can rightfully be described as such, I do
not find
it necessary to dwell on each of them in any detail. There is a more
fundamental reason why I do not agree with this
line of reasoning by
the Court a quo. It is a trite principle that in criminal
proceedings the prosecution must prove its case
beyond reasonable
doubt and that a mere preponderance of probabilities is not enough.
Equally trite is the observation that,
in view of this standard of
proof in a criminal case, a court does not have to be convinced that
every detail of an accused’s
version is true. If the accused’s
version is reasonably possibly true in substance, the court must
decide the matter on
the acceptance of that version. Of course, it
is permissible to test the accused’s version against the
inherent probabilities.
But it cannot be rejected merely because it
is improbable; it can only be rejected on the basis of inherent
probabilities if
it can be said to be so improbable that it cannot
reasonably possibly be true. On my reading of the judgment of the
Court a quo
its reasoning lacks this final and crucial step. On this
final enquiry I consider the answer to be that, notwithstanding
certain
improbabilities in the appellant’s version, the
reasonable possibility remains that the substance thereof may be
true.
This conclusion is strengthened by the absence of any apparent
reason why the appellant would, without any motive, decide to

brutally murder the deceased by shooting him in the mouth at point
blank range. As a consequence, the matter must be decided on
the
appellant’s version. According to the appellant’s
version he never intended to fire a shot. On the acceptance
of this
version there is no room for a finding of dolus in any of its
recognised forms. It follows that the conviction of murder
cannot
stand.”
[31]
S v
Mabena
2012
(2) SACR 287
(GNP) at para [11] – “
On
appeal it was argued that the regional magistrate ought to have
accepted that the evidence of the appellant was reasonably
possibly
true. It was, however, not suggested that the regional magistrate
misdirected herself in any respect. The power of an
appeal court, to
interfere on fact with the findings of the court below, is
limited.
Interference
in this regard is only permissible where the findings of the court
below are vitiated by misdirection or are patently
wrong.”
.
See also
Quartermark
Investments v Mkhwanazi
2014
(3) SA 96
(SCA) at para [20] referring to
R
v Hepworth
1928
AD 265
at 277.