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[2024] ZAMPMBHC 35
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Shange v S (A09/2024) [2024] ZAMPMBHC 35 (4 June 2024)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: A09 / 2024
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE:
04 June 2024
SIGNATURE
In
the matter between:
LEBOHANG
SHANGE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
RATSHIBVUMO J:
Delivered:
This judgment was handed down
electronically by circulation to the parties' representatives by
email. The date and time for hand-down
is deemed to be 14H00 on 04
June 2024.
Introduction.
[1]
The weekend of 13 to 15 September 2019 was
an eventful one for LS and his girlfriend TC. It started off with
them showing not just
love and affection for each other, but also
support for their families. Like any other couple that lives apart
from each other,
they were obviously longing to be with each other.
That weekend had its own challenges though. Before they could enjoy
the privacy
that lovers always need, they first had to travel from
Gauteng, the province each one of them called home, to Newcastle in
Kwazulu-Natal
where the extended family of LS resided. TC would be by
her lover’s side to support him during his family ceremony.
[2]
When TC learned that there was no room for
her to sleep in the family home they were visiting that Friday night,
she understood
the cultural limitation placed on her as a woman not
yet married to their son. The family house only had a space for her
boyfriend
to sleep. That night she slept in his car. The next day, LS
managed to arrange with an elderly woman from the neighbourhood for
TC to sleep while the ceremony was underway. The weekend did not end
as great as it started because as they were driving back,
they were
involved in a motor vehicle accident around the area of Embalenhle,
Mpumalanga. Their motor vehicle hit the cows on the
road. In the car,
they were with about three relatives and a friend of LS, with whom
they had gone to Newcastle. LS was going to
drop off one of the
occupants of the motor vehicle, his cousin, who resided in
Embalenhle. His motor vehicle was damaged beyond
repair. Luckily,
none of the occupants was injured.
[3]
The police were willing to help them
complete their journey at least to Embalenhle. Prior to the accident,
LS had planned to proceed
further with the journey with his lover and
the remaining occupants after dropping off his cousin. Sadly, by the
time they departed
from Embalenhle, LS and TC did not leave together.
They were no longer a couple in love, for they had split. TC had
visible swelling
and bruises on her face inflicted by LS. This whole
drama replayed itself before the Evander Regional Court (court
a
quo
) when the two lovers relayed in a
trial as to how their love affair came to an abrupt end on 15
September 2019. TC was the complainant
and LS was the accused in that
trial.
[4]
During the trial, it was common cause that
TC’s injuries were inflicted at the hands of LS. The dispute
was rather whether
this happened when he acted in self-defence
against TC’s attack or he was the one who attacked her.
Interestingly, a charge
of assault with the intent to do grievous
bodily harm was not the only charge preferred against LS. It turned
out that despite
the presence of so many companions at any given
moment that weekend, LS and TC still managed to have sexual
intercourse. This resulted
in LS facing a charge of rape, in
contravention of section 3 of Act 32 of 2007.
[5]
The dispute in respect of this charge was
whether the sexual encounter was consensual. LS alleged that it was
consensual and that
it happened in Newcastle before their brawl that
saw them split on the following day. TC averred that the sexual
encounter took
place against her will, in Embalenhle, on 15 September
2019 and this was after she was assaulted by LS.
[6]
It goes without saying that the court
a
quo
rejected the version of LS and
accepted the one presented by TC, hence this appeal. On 15 March
2023, it convicted him on both
charges. He was sentenced on 13 April
2023 to 10 years’ imprisonment for contravening section 3 of
Act 32 of 2007 and 06
(six) months imprisonment on a charge of
assault with intent to do grievous bodily harm. The court ordered the
sentence on the
second charge to run concurrently with the 10 years’
imprisonment that was imposed on the first count. The appeal on both
the convictions and the sentences is with leave of this court through
a petition, after leave to appeal was refused by the court
a
quo
. LS is the Appellant in this
appeal.
Grounds of appeal.
[7]
Ad conviction:
It
was submitted for the Appellant that the court
a
quo
erred in not properly taking into
account the peculiar circumstances and background of this matter on a
conspectus of which the
Magistrate should have found:
a.
that reasonable doubt exists, specifically
relating to the credibility of the single witness, the complainant;
b.
on the basis of which the Appellant should
have received the benefit of the doubt and should have been acquitted
specifically on
count 1, being the charge of rape; and
c.
also on count 2, being the charge of
assault with the intent to do grievous bodily harm on the basis that
his version that he at
all times acted in self-defence relating to an
ongoing attack on him by the complainant, cannot be rejected as false
beyond a reasonable
doubt.
[8]
Ad sentence
:
It was submitted that should the conviction on rape be upheld, this
court should set aside the sentence imposed by the court
a
quo
. It was argued that,
a.
the learned Magistrate correctly found that
the minimum sentence regime at the time of the commission of the rape
was applicable,
namely a minimum sentence of 10 years’
imprisonment. It is however submitted that in view of the
circumstances of this matter
as set out above coupled with the
personal profile of the appellant, same constitute substantial and
compelling circumstances on
the basis of which the court had an
unfettered discretion to impose a lesser sentence on the appellant
than the minimum sentence.
It is submitted that a substantive part of
the sentence in the circumstances should be suspended.
b.
As far as the conviction of assault with
the intent to do grievous bodily harm is concerned, it is submitted
that should the court
find that the appellant on his own version
exceeded the bounds of self-defence, that under those circumstances a
non-custodial
sentence should have been imposed.
Before the court
a
quo
.
[9]
The background facts reflected under
introduction above are mainly common cause. The disputed facts which
form the basis of this
appeal can be best told in the complainant and
the Appellant’s own versions. According to the complainant,
they reached the
Appellant’s cousin’s place in Mbalenhle
in the early hours of the morning on 15 September 2019. After they
arrived,
the Appellant proceeded to a room normally used by his
cousin, which had two single beds, one of which belonged to his
cousin’s
roommate. Although his cousin’s roommate left
the room upon their arrival, the complainant decided not to join the
Appellant
in sleeping because it did not feel okay for her to sleep,
while the Appellant’s friends could not sleep as there was not
enough space for them to sleep. So she stayed awake seated in the
living room with them.
[10]
As the day broke, the Appellant rose up and
came to where she was seated with his friends. Around that time, she
received a phone
call that she answered. When she finished, the
Appellant demanded that she should hand over her phone to him, and
she refused.
He forcefully took it from her and walked to the room
where he was sleeping. She followed him struggling to grab the phone
back
from him. Once in the room, he accused her of dating his
friends, referring to the men with whom she was seated out there. She
then tried to grab her phone back from him and he hit her with open
hands, fists and also kicked her until she started bleeding
through
her nose. He also grabbed the wig she was wearing, and kept it away
from her, and she would not leave the room without
it.
[11]
There was a noisy commotion in the room
which attracted the attention of people in the house as they came to
investigate. One of
those who came was the Appellant’s cousin
who was one of the tenants in that house. He cautioned them that they
were making
noise before leaving and locking the room’s door
from outside. She and the Appellant continued their argument as soon
as
the cousin closed the door behind him. As they argued, she told
him she was done with him and would no longer want to continue as
his
girlfriend. He then threw her to the bed where he throttled her. At
all these times, she wore a light short skirt which exposed
her
underwear when she was thrown to the bed. It was at this stage that
the Appellant moved her underwear to the side, penetrated
her with
his penis and started to have sexual intercourse with her while she
resisted.
[12]
The Appellant made no use of a protective
condom when having sexual intercourse with her. He stopped after
ejaculating inside her.
When he finished, he started crying and
apologising, just as he has done so in the past. He however blamed
her for causing him
to be in that state because she was busy on her
phone. He only allowed her to leave the room when he was finished,
but he did not
let her take her big bag. A certain lady, a tenant in
the same house, unlocked and opened the door from outside and that is
how
she managed to exit the room. The lady who opened the room could
see that she was injured. She is the one who walked with her to
the
local police station where she laid charges of rape and assault
against the Appellant.
[13]
The Appellant’s version mirrors that
of the complainant only in respect of the journey to and from
Newcastle, how they were
involved in an accident, and how their
journey to Embalenhle was completed with the help of the police. That
is how far their versions
overlap, nothing further. According to him,
trouble started that morning in Embalenhle after they had gone to a
nearby local pub
where they had gone to buy alcohol and food to eat.
While there, he asked the complainant to call her uncle to come and
collect
them in her motor vehicle, as she also owned one. She refused
saying, as a man, he should make a plan.
[14]
He started making calls to his friends,
including a female friend. The complainant overheard the female voice
on the phone and started
demanding his cell phone while accusing him
of cheating. She started to hit him and he also hit her back in
self-defence, and that
is how she sustained the bruises later
observed by the forensic nurse. He denied having had sexual
intercourse with her that day
saying they were far from a bed when
they had an altercation. He did however have sexual intercourse with
her on Friday the 13
th
and Saturday the 14
th
of September 2019 in Newcastle in his motor vehicle.
[15]
This version was put to her, and she denied
it saying on 13 September 2019, she slept in the motor vehicle alone
and the following
day she again slept alone at a certain neighbouring
old lady. The only time she had sexual intercourse with him was in
Mbalenhle
and this was done against her will and after he assaulted
her.
[16]
The Appellant attempted to explain the
vaginal injuries observed by the forensic nurse who examined the
complainant on 16 September
2019, as a result of rough sex which she
always likes. The version to the effect that the complainant likes
rough sex was however
not put to her when she gave evidence.
[17]
He admitted that when she left, the
complainant left her bag behind and that he refused to let her take
it, but that was because
he did not want her to go while she knew no
one locally. He told her he was organising transport that would take
them back to Gauteng.
At that stage, he did not know that she had
left the premises or that she had gone to the police station.
[18]
Upon evaluation of the evidence, the court
a quo
accepted the complainant’s version as being in line with the
undisputed facts of the case, and it found the case for the
State to
have been proved beyond a reasonable doubt. The Appellant’s
version was rejected as being improbable, and he was
convicted as
charged in respect of all the charges.
Principles applicable
on appeal
[19]
The
submissions made as grounds of appeal are general in nature,
challenging the court
a
quo
’s
conclusions in convicting the Appellant. In essence, the Appellant
submits that he was convicted on poor evidence and that
he should
have been given the benefit of doubt and acquitted. In
Director
of Public Prosecutions, Eastern Cape, Makhanda v Coko
[1]
,
Petse DP and Mabindla-Boqwana JA, writing the unanimous judgment by
the Supreme Court of Appeal (the SCA), reiterated the principle
to
the effect that the powers of an appeal court to interfere with the
trial court’s factual findings, are circumscribed.
Thus, the
appeal court is not at large to interfere unless it is satisfied that
the trial court committed material misdirections
or a demonstrable
blunder in evaluating the evidence. They quoted from the earlier
judgment of
R
v
Apter
and Apter
[2]
where the Appellate Division said,
“
[W]here
the judicial officer in the trial court has taken every point into
consideration and has not misdirected himself or been
guilty of any
error of law, an appeal court, in a case in which the ground of
appeal is that the trial court ought to have had
a doubt, will not be
entitled to interfere with the verdict unless it is satisfied that
the trial court ought to have had a doubt;
but I am prepared to
assume that in this appeal, because of the criticism to which I have
referred, we should re-try the case in
the sense of inquiring whether
on the record of the evidence, taken in conjunction with the
impression made on the trial court
by the witnesses, we ourselves are
satisfied beyond reasonable doubt of the guilt of the appellants.”
Discussion
[20]
It is apposite for this court to answer if
there was a material misdirection by the court
a
quo
. This question cannot be answered
in vacuum or in general terms. It is the Appellant’s duty to be
specific in how the trial
court erred in its evaluation of evidence,
which resulted in a wrong factual finding being challenged now on
appeal. It is in the
evaluation of evidence that the court of appeal
can tell if there was misdirection and if such misdirection is
material to justify
interference.
[21]
In paragraphs 7.5 and 10 of the Appellant’s
heads of argument, the following was submitted,
“
7.5
[T]he submissions made relating to the finding of the Magistrate is
that with respect, the magistrate erred in not properly
taking into
account the peculiar circumstances and the backgrounds of the matter,
including the fact that and the Appellant and
the complainant was at
all relevant times, until the said argument and violent between them
broke out, in a personal relationship
and did not attach sufficient
weight to the enormity of the fact that the complainant lied to and
misled the court about consensual
intercourse she had with the
Appellant the very two days before the alleged rape. Had the
magistrate done so, she would have found
with respect that:
7.5.1 reasonable doubt
exists specifically relating to the credibility of the single
witness, the complainant Ms. TC, and specifically
relating to the
alleged act of penetration which on her evidence was part and parcel
of the physical confrontation between the
parties on which count 2 is
based;
7.5. 2 reasonable doubt
exists on the basis of which the Appellant should have received the
benefit of doubt and should have been
acquitted on count 1, being the
charge of rape; …
10. While in KZN at the
ceremony relating to the Appellant, the complainant had to sleep in
the Appellant’s car as she was
not married to the Appellant and
also was wearing pants and therefore not allowed in the homestead.
Appellant gave evidence and
it was on his behalf put to the
complainant that the Appellant and the complainant had sexual
intercourse involving penetration
in the said vehicle on the 13
th
as well as the 14
th
of September 2019. This, very
importantly, is denied by the complainant but Appellant is
corroborated relating to Appellant’s
allegation of consensual
sex on at least the 14
th
of September 2019 by the J88
medico legal report admitted as Exhibit A in the matter and which was
completed on the basis of information
obtained from the complainant
herself…”
[22]
In response, counsel for the State
submitted that,
“
7.6.1
the contents of the J88 particularly paragraph D, was never put to
the victim, to explain the note.
7.6.2 It is not correct
that the victim was only with the [Appellant] from 13-15 September
2019. The victim from the 13
th
was with several men in the
car, until the 15
th
and they ended up in Embalenhle.
7.6.3 If this note was
asked to the victim, she could have given an explanation why she
mentioned she last had sexual intercourse
on 14 September 2019.
7.6.4 It is probable that
the victim might have had consensual sex with one of the men in the
house. It is also probable that the
nurse might have made a mistake
with that entry, however, that point was never explored with the
victim and as a result, the Respondent
respectfully submits that such
an insinuation should be dismissed.”
[23]
It is clear from the above, that the main
criticism levelled against the court
a
quo
by the Appellant is its failure to
make a negative finding against the complainant’s credibility.
A negative finding would
have made way for his version to be
acceptable as reasonably possibly true. The assertions by the
Appellant have their roots in
the evidence of the forensic nurse, Ms.
Thabile Catherine Malaza (Ms. Malaza), who examined the complainant
on 16 September 2019.
Under paragraphs 10 and 11 of the medical
report (J88), Ms. Malaza noted that the last date of sexual
intercourse with consent
was 14 September 2019 and that the number of
consensual sexual partners the complainant had over the last seven
days was one. Ms.
Malaza testified that what she wrote in these
paragraphs, is what was relayed to her by the complainant.
[24]
It was submitted on behalf of the Appellant
that the entries in paragraphs 10 and 11 of the J88 are in line with
the Appellant’s
version in that the Appellant testified that
that he did not have sexual intercourse with the complainant on 15
September 2019.
According to him, he had sexual intercourse with her
on 13 and 14 September 2019. This version was denied by the
complainant when
it was put to her. The Appellant now argues that the
complainant lied in her evidence when she testified that she did not
have
sexual intercourse with him on those two dates as she confirmed
to Ms. Malaza that she did. If the complainant lied on this aspect,
so goes the argument, the court
a quo
should have found that she was not a credible witness.
[25]
Sadly, this piece of evidence was not
raised with the complainant when she gave evidence, for her to
clarify what she meant, if
she said what is reflected therein. The
first possibility is that the complainant may not have said what is
attributed to her,
meaning, there was a miscommunication as a result
of her not hearing the question or Ms. Malaza not understanding what
the complainant
was referring to in her answer. A simple question to
her would have given clarity in this regard.
[26]
It looks like the Appellant and/or his
counsel did not take note of what was written in the J88 medico legal
report until the complainant
had finished giving evidence. In fact,
it appears from the record that this aspect was only brought to the
attention of the counsel
by the Appellant when she was wrapping her
cross examination of Ms. Malaza. No efforts were made to have the
complainant called
back to answer this.
[27]
The Appellant’s argument suggests
that there is no other inference to be drawn from the conclusions he
wants this court to
reach; that the complainant lied to the court. I
am of the view that the Appellant’s argument would carry weight
if there
is no other conclusion to reach than that suggested by him.
In essence, the Appellant is insinuating that the person the
complainant
was referring to when she consulted with Ms. Malaza as
the one she had consensual sexual intercourse with, was the
Appellant. That
would also entail that she had no other sexual
partner with whom she engaged sexually over the seven days preceding
the consultation.
What I find hard to accept is that this is the only
inference that can be reasonably drawn from the common cause facts of
the case.
[28]
A possibility cannot be excluded that the
complainant may have engaged in sexual encounter with one of the
Appellant’s friends
with whom they went to Newcastle that
weekend. After all, the Appellant was said to be so suspicious of the
complainant dating
his friend, that he confronted her over it. This
resulted in an argument that escalated to a physical brawl between
him and her.
If she was indeed in a relationship as he accused her,
this would then explain why she did not get into a room and sleep
with the
Appellant while her other partner was in the same house.
[29]
If there is any merit in the Appellant’s
suspicions and accusations in this regard, for the complainant to
explain the true
position to Ms. Malaza would be wise as the swabs
containing possible semen were in any event taken from her vagina.
There would
be no point in concealing what the forensic laboratory
would soon expose.
[30]
Furthermore, the complainant was not asked
if there was any truth in the accusations that she was dating the
Appellant’s friend.
She merely hinted that the Appellant may
have been suspicious because she remained seated with his friends
while he went to sleep.
Confirming this possibility could have
exposed her as being unfaithful towards the Appellant. But one can
cheat on his/her lover
and remain a credible witness who can even be
honest about that promiscuity.
[31]
Moreover,
sight need not be lost of the fact that the complainant described the
Appellant as her boyfriend. We know from
Director
of Public Prosecutions, Eastern Cape, Makhanda v Coko
[3]
that
being a boyfriend and a girlfriend or lovers does not always
translate to sexual partners. People can be in love without sexual
intimacy. Whether any relationship extends to sexual intimacy is not
a matter of presumption, but should be factually established
by means
of evidence.
[32]
Lastly in this regard is suppose
hypothetically speaking, the Appellant’s insinuation is the
only reasonable inference to
draw from the common cause facts of this
case, how would this impact on her credibility as a witness? Given
the totality of the
evidence that was properly evaluated by the court
a quo
, I
do not see how this would have materially impacted on the
complainant’s credibility. Over and above that, I reach a
conclusion
that it would be irregular, to make credibility findings
on a witness, over issues that were not canvassed with him/her.
[33]
The court
a
quo
was after all alive to all possible
inferences that could be drawn from the common cause facts, now that
these issues were not
put to the complainant. It took into
consideration the medical report, the gynaecological injuries noted
therein and evidence by
a police officer who saw the fresh injuries
on the complainant’s face, and found that the case for the
State was proved beyond
a reasonable doubt.
[34]
The complainant did not just have injuries
on her face and neck, but also had bruises on the 6 o’clock
area of her fossa navicularis,
which is the inner part of her vagina,
which normally relaxes and gets lubricated in consensual sexual
intimacy. Ms. Malaza found
the injuries to have been consistent with
forced vaginal penetration. Ms. Malaza was steadfast in her opinion
as a forensic nurse
because even if there was consensual sexual
encounter between the complainant and the Appellant on 14 September
2019, it would
not take away that he had forced sexual intercourse
with her on 15 September 2019. This would be based on her
professional observation
and the version relayed to her by the
complainant.
[35]
In an attempt to explain the injuries on
the fossa navicularis, the Appellant testified that the complainant
liked “rough
sex” which required no foreplay. This
version was equally not put to her when she testified and was rightly
rejected by the
court
a quo
.
[36]
I can also find no fault in rejecting the
Appellant’s version that he inflicted the injuries observed by
Ms. Malaza on her
face and on her neck, while acting in self-defence.
The manner in which the complainant left the house when going to the
police
station demonstrates that the Appellant was not a victim who
was being assaulted by her. She is the one who begged for her bag and
he refused with it. I find no misdirection in the court
a
quo
’s finding to the effect that
the case for the State was proved beyond a reasonable doubt. Appeal
on merits is bound to fail.
Ad sentence
[37]
There was concession by the Appellant to
the effect that the court
a quo
was correct to conclude that the prescribed minimum sentence
introduced by the
Criminal Law Amendment Act, no. 105 of 1997
was
applicable when it comes to the charge of rape he was convicted of.
The prescribed minimum sentence applicable on that charge
was 10
years’ imprisonment while maximum thereof was 15 years’
imprisonment. In terms of that Act, the court could
only deviate from
the prescribed minimum sentence in case there were substantial and
compelling circumstances that justify the
imposition of a lesser
sentence.
[38]
In
S
v Malgas
[4]
,
the SCA held,
“
[T]he
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy
of
the policy implicit in the amending legislation, and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances. Nor were marginal
differences in the personal circumstances or degrees of participation
of co-offenders which, but for the provisions, might have justified
differentiating between them. But for the rest I can see no
warrant
for deducing that the legislature intended a court to exclude from
consideration,
ante omnia
as it were, any or all of the many factors traditionally and rightly
taken into account by courts when sentencing offenders.”
[39]
The Appellant does not advance any factors
that the court
a quo
should have considered as substantial and compelling enough to
justify the imposition of a lesser sentence. Instead, he submits
that
the unique circumstances of a case should have been seen as
substantial and compelling reasons that justify such. I do not
agree
with this sentiment. There is in my view nothing unique about the
factual circumstances of this case. Like any other gender
based
violence incident, circumstances may not be identical to those of
another case. That on its own does not make the circumstances,
unique.
[40]
Most
cases involving gender based violence have the following as common
denominator: a woman who falls in love hoping to be loved
and
protected by her man, and a man who uses his masculine strength to
control and display power over the woman who fell in love
with him.
In
S
v Tshabalala
[5]
,
Mathopo AJ (as he then was) said,
“
for
far too long rape has been used as a tool to relegate the women of
this country to second-class citizens, over whom men can
exercise
their power and control, and in so doing, strip them of their rights
to equality, human dignity and bodily integrity.
The high
incidence of sexual violence suggests that male control over women
and notions of sexual entitlement feature strongly
in the social
construction of masculinity in South Africa. Some men view
sexual violence as a method of reasserting masculinity
and
controlling women.”
[41]
In
S
v Chapman
[6]
,
Mohamed CJ said,
“
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy, and
the integrity of every person are basic to the ethos
of the
Constitution and to any defensible civilisation. Women in this
country are entitled to the protection of these rights.
They have a
legitimate claim to walk peacefully on the streets, to enjoy their
shopping and their entertainment, to go and come
from work, and to
enjoy the peace and tranquillity of their homes without the fear, the
apprehension and the insecurity which constantly
diminishes the
quality and enjoyment of their lives.”
[42]
There is nothing that can be regarded as
substantial and compelling circumstances that presented before the
court
a quo
in this case. The facts demonstrate just another man exercising his
control over a woman, whose crime was to fall in love with
him. The
fact that she was raped just moments after she was involved in a
motor vehicle accident in which the motor vehicle was
written off on
the spot, is aggravating as it added to the trauma she was already
subjected to. What makes it worse is that the
Appellant was the
driver of the motor vehicle when they were involved in the accident.
He should have been more considerate than
he did if he cared. There
is no reason to interfere with the sentence as there was no
misdirection by the court
a quo
in
finding no substantial and compelling circumstances, based on which
it could deviate from the prescribed sentence. The appeal
on sentence
is also bound to fail.
[43]
Consequently, the following order is
proposed:
Appeal against the
conviction and the sentence is dismissed.
TV RATSHIBVUMO
JUDGE OF THE HIGH
COURT
MPUMALANGA
I agree. It is so
ordered.
KF PHAHLAMOHLAKA
ACTING JUDGE OF THE
HIGH COURT
MPUMALANGA
FOR
THE APPELLANT:
MR.
PJ DU PLESSIS
INSTRUCTED
BY:
BDK
ATTORNEYS
C/O
DE JAGER HATTINGH
ATTORNEYS
MIDDELBURG
FOR
THE RESPONDENT:
ADV.
R MOLOKOANE
INSTRUCTED
BY:
OFFICE
OF THE DPP
MIDDELBURG
JUDGMENT
RESERVED:
03
MAY 2024
JUDGMENT
DELIVERED:
04
JUNE 2024
[1]
(248/2022)
[2024] ZASCA 59
(24 April 2024) at para 38.
[2]
See
reference made in
R
v Dhlumayo
1948 (2) SA 677
(A) at p. 687.
[3]
Supra
.
In
Coko
,
the SCA reinstated the conviction of the respondent on a charge of
rape where it was alleged that he raped his girlfriend with
whom he
had not had sexual intimacy before.
[4]
2001
(1) SACR 469
(SCA) at para 9.
[5]
[2019]
ZACC 48
;
2020 (3) BCLR 307
(CC);
2020 (2) SACR 38
(CC) at para 1.
[6]
[1997]
ZASCA 45
;
1997 (3) SA 341
(SCA) at paras 3-4.