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[2024] ZAKZPHC 90
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Maphumulo v S (AR388/2022) [2024] ZAKZPHC 90 (18 October 2024)

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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
AR388/2022
In
the matter between:
ZWELAKHE
MAPHUMULO

APPELLANT
and
THE
STATE

RESPONDENT
Coram:
Radebe J and Mossop J
Heard:
18 October 2024
Delivered:
18 October 2024
ORDER
On
appeal from:
uMzimkhulu Regional Court (sitting as the court of
first instance):
1.
The appeal against conviction and sentence is upheld.
2.
The appellant’s conviction on a count of rape
and his sentence
of life imprisonment is set aside.
JUDGMENT
MOSSOP
J
(RADEBE J concurring):
[1]
The appellant was convicted in the uMzimkhulu Regional
Court on a
charge of raping his cousin (the complainant), a 12-year-old girl at
the time. He was thereafter sentenced to life imprisonment
after the
trial court found an absence of substantial and compelling reasons
entitling it to deviate from the prescribed minimum
sentence
contemplated by
s 51(1)
of the
Criminal Law Amendment Act 105 of
1997
. By virtue of the provisions of s 309(1)
(a)
of the
Criminal Procedure Act 51 of 1977 (the CPA), the appellant exercises
his automatic right of appeal to challenge both his
conviction and
sentence.
[2]
The facts
presented by the State were, on the face of it, not complex. The
appellant and the complainant both resided at the same
homestead
located in the area known as Donsomlenzana. The homestead was that of
the complainant’s aunt, Ms N[...] M[...]
(Ms M[...]). At the
homestead was a tuck shop. Sometime in 2017,
[1]
the complainant testified that she had been instructed by Ms M[...]
to go to the tuck shop to serve customers wishing to make purchases

there. She did as she was told. The appellant later arrived at the
tuck shop and, without much ado, stated to the complainant that
he
wanted to sleep with her. The complainant became distressed at
hearing this and began crying, at which the appellant left. Nothing

consequently happened on this occasion, but the complainant testified
that she told Ms M[...] exactly what had occurred. This startling
and
disturbing story, however, apparently did not resonate with Ms
M[...], for it appears that she did nothing about it.
[3]
According to the complainant, the day after the appellant
disclosed
his desire to sleep with her, she was again at the tuck shop to serve
customers. She had not been ordered to do so by
her aunt on this
occasion but had gone to the tuck shop of her own volition. The
appellant arrived at night and entered the tuck
shop. Ordinarily,
customers would not enter the tuck shop but would remain outside from
where they would be served. The appellant
again said that he wanted
to sleep with the complainant. The complainant testified that she
again started weeping and the appellant
then closed her mouth with a
cloth. He took off her underwear and made her lie on her back on the
floor of the tuck shop. The appellant
then dropped his trousers,
forced her thighs open, got on top of her and inserted his penis into
her vagina. He then moved on top
of her. When he finished, he got up
and left.
[4]
The complainant testified that she was bleeding. She
used the cloth
that had been used by the appellant to gag her to wipe up her blood
from the floor. As to what happened next, she
stated that:
‘
I
wiped off the blood and went to show my aunt and then myself and my
aunt we went to show my dad and my aunt told me to go and
throw away
the cloth in the river.’
[5]
There can accordingly be no doubt that the first report
of what had
allegedly occurred was made by the complainant to Ms M[...]. Again,
her aunt appeared to be indifferent to what she
had just been told,
for after having heard what the complainant informed her had happened
to her, she then left to purchase some
beers from a tavern. The
complainant testified that she grabbed her school bag and left the
homestead and went to her grandmother’s
home. There, she
explained that:
‘
I
told her the story, after that she took me to the clinic.’
[6]
She, however, did not remain at the clinic to be medically
examined.
She stated that whilst in the queue at the clinic, she saw the
appellant:
‘…
and his siblings and my
aunt, then I ran away before I could even go in. I went to another
granny that I did not know.’
[7]
The unknown granny called a female police officer, who
was on
maternity leave in the area, and who later testified at the trial.
The police officer, Constable Nonhlanhla Shabalala (Cst
Shabalala),
testified that she telephoned the Intsikeni Police Station after
hearing the complainant’s version of her rape
by the appellant.
A social worker was also called, who took the complainant to a place
of safety and, ultimately, to the hospital.
At the hospital, the
complainant testified that she was:
‘…
examined in my vagina,
they said they could not see anything and they gave me some tablets.’
[8]
The only other witness called by the State was Ms Nolwanze
Duma (Ms
Duma), a local ward committee member. She testified that the
complainant was brought to her by a Ms Maya (Ms Maya), who
reported
to Ms Duma that the complainant had come to her homestead and told
her that she had been raped. Ms Duma confirmed that
Ms Maya narrated
the facts of what allegedly occurred to the complainant to her.
According to Ms Duma, the local ward councillor
was telephoned and
informed of what had happened, who in turn called the complainant’s
aunt and requested her to come to
her. She did so, as did the
complainant’s father, his girlfriend, and the appellant’s
mother. When they arrived, the
complainant inexplicably fled again.
[9]
That was the evidence presented by the State. Despite
the apparent
simplicity of the complainant’s version, it was not an easily
understood narrative. Evidence that one would
have expected to hear
was absent, as will be made clear shortly. While it was presented as
a continuous, evolving series of events,
it was anything but that.
[10]
It is, unfortunately, necessary to discuss several areas of concern
arising
out of the proceedings, the trial court’s judgment and
the conclusion to which it ultimately came.
[11]
The first area of concern lies at the heart of the proceedings. The
State’s
case was that of a single witness, namely the
complainant. Her evidence was accordingly critical to the decision to
convict the
appellant. I am, however, by no means certain that the
complainant appreciated what it was to take the oath prior to
testifying.
My trepidation in this regard stems from an observation
made by the doctor who examined the complainant at the hospital to
which
she was taken. He recorded the following on the J88 document
that he completed under the heading ‘Mental health and
emotional
status’:
‘
Slight
mental retardation.’
[12]
This observation by the doctor appears to have led to a report (the
report)
being prepared by a clinical psychologist regarding the
complainant’s mental condition. The report is not under oath
nor
is it confirmed by an affidavit and the clinical psychologist was
not called at the trial. The report stated that its purpose was

intended to address the question of whether the complainant:
‘…
can be able to testify in
court with the assistance of an intermediary.’
[13]
I appreciate that this is not exactly the same issue that I am
presently dealing
with, namely the ability to understand an oath and
its significance, but it does reveal the apparent vulnerability of
the complainant,
because the report, dated 18 April 2018, revealed
that the complainant at that stage was doing grade three for the
third time.
There was thus clearly something wrong. The complainant’s
cognitive functioning was assessed in the report as being ‘fair’.

The conclusion of the report stated the following:
‘
The
psychological assessment indicated that her intellectual functioning
is between mild and moderate intellectual disability (mental

retardation) range.
·
She can tell the court about her rape.
·
Her ability
to testify in court with the assistance of the intermediary is below
average.’
[2]
[14]
In both
criminal and civil trials, the evidence relied upon by a judicial
officer to come to a finding is obtained from the oral
testimony of
competent witnesses.  The CPA presumes that everyone is a
competent and compellable witness.
[3]
Section 194 of the CPA, however, provides as follows:
‘
No
person appearing or proved to be afflicted with mental illness or to
be labouring under any imbecility of mind due to intoxication
or
drugs or the like, and who is thereby deprived of the proper use of
his reason, shall be competent to give evidence while so
afflicted or
disabled.’
[15]
How this is
to be applied was explained in
S
v Katoo
,
[4]
where the Supreme Court of Appeal stated the following:
‘
'The
first requirement of the section is that it must appear to the trial
court or be proved that the witness suffers from
(a)
a
mental illness or
(b)
that
he or she labours under imbecility of mind due to intoxication or
drugs or the like. Secondly, it must also be established
that as a
direct result of such mental illness or imbecility, the witness
is deprived of the proper use of his or her reason.
Those two
requirements must collectively be satisfied before a witness can be
disqualified from testifying on the basis of incompetence.'
[16]
The record
of proceedings does not reveal what the regional magistrate thought
of the complainant’s mental capacity because
the issue appears
not to have been considered at all by the regional magistrate. That
the regional magistrate must have appreciated
that there might be a
problem in this regard brooks of no doubt in view of the contents of
the report. That being so, she was required
to investigate further
and determine whether the complainant was capable of taking the oath.
There would have to be a finding as
to whether the proposed witness
knew what it meant to take the oath and what that entailed. As was
stated in
S
v Matshivha
:
[5]
‘
The
finding must be preceded by some form of enquiry by the judicial
officer, to establish whether the witness understands
the nature
and import of the oath. If the judicial officer should find after
such an enquiry that the witness does not possess
the required
capacity to understand the nature and import of the oath, he or she
should establish whether the witness can distinguish
between truth
and lies and, if the enquiry yields a positive outcome, admonish the
witness to speak the truth.'
[17]
In
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and others
,
[6]
the
Constitutional Court stated that:
‘
The
reason for evidence to be given under oath or affirmation or for a
person to be admonished to speak the truth is to ensure that
the
evidence given is reliable. Knowledge that a child knows and
understands what it means to tell the truth gives the assurance
that
the evidence can be relied upon. It is in fact a precondition for
admonishing a child to tell the truth that the child can
comprehend
what it means to tell the truth. The evidence of a child who does not
understand what it means to tell the truth is
not reliable. It would
undermine the accused's right to a fair trial were such evidence to
be admitted. To my mind, it does not
amount to a violation of
s
28(2)
to
exclude the evidence of such a child. The risk of a conviction based
on unreliable evidence is too great to permit a child
who does not
understand what it means to speak the truth to testify. This would
indeed have serious consequences for the administration
of justice.’
(Footnote omitted.)
[18]
The
extract referred to above refers to a child. The complainant was 12
days shy of her 18
th
birthday when she finally testified at the appellant’s trial,
and thus was not a child, but the principle crystallised in
the
extract just referred to would apply to her with her own unique
qualities and apparent intellectual challenges.
[7]
[19]
Regrettably, no inquiry was conducted by the regional magistrate. Not
a single
question was ever put to the complainant when she took to
the witness box about her understanding of what it meant to take an
oath.
In my view, given what was known by the court a quo about the
complainant, it was not open to the regional magistrate to simply

permit the complainant to take the oath. The failure by the court to
conduct an inquiry into the complainant’s mental capacity
is
fatal and imperils the conviction of the appellant, for there was no
other evidence adduced by the State that established the
appellant’s
guilt.
[20]
The
second area of concern is that the regional magistrate failed to
distinguish between true corroboration of the complainant’s

version and previous consistent statements made by her. It is so that
s 58
of
the Criminal Law (Sexual Offences and Related Matters) Amendment
Act
32 of 2007
now
permits the reception of previous consistent statements by a
complainant in criminal proceedings involving the alleged commission

of a sexual offence. But such statements do not constitute
independent evidence of the offence alleged to have been committed.
Such
statements only establish the consistency of the witness, for a lie
can just as easily be repeated as the truth.
[8]
[21]
In her judgment, the regional magistrate narrated in detail what Cst
Shabalala
had said she had been told by the complainant regarding the
particulars of the rape. The regional magistrate also found that the

evidence of Ms Duma ‘confirmed the evidence of the
complainant’. She thus concluded that:
‘
Her
evidence was confirmed was corroborated (sic) by the first witness,
N[...] T[...] (sic) as well as the second witness, Nolwandle
Duma …
So the evidence of this child was corroborated by two witnesses as
far as to how the accused raped her …’.
[22]
Neither of these two witnesses, in fact, corroborated the
complainant’s version. They simply recited what the complainant
had told them. Repetition of a version does
not
make it the truth and consequently, such statements have no probative
value.
[23]
The regional magistrate stated further that:
‘
It
is clear that sexual intercourse took place as per evidence of the
child, which is corroborated by other evidence.’
Quite
simply, there was no other corroboration, if this was intended to
refer to corroboration other than the perceived corroboration
by Cst
Shabalala and Ms Duma. There were no witnesses to the crime. As shall
be discussed next, there was also no forensic evidence
to establish
the commission of the crime by the appellant. The evidence of the
first report would have been admissible,
[9]
being an exception to the rule against self-corroboration, but for
reasons that were not disclosed, it was not called by the State.
In
sexual cases, the first report is received to rebut any suspicion
that a complainant has fabricated the allegation.
[10]
What was clear to the regional magistrate is, accordingly, not clear
to me.
[24]
The third area of concern is similar to the previous issue just
discussed.
The regional magistrate considered the J88 document
completed by the doctor who examined the complainant as also
corroborating
her version of events. In this regard, the regional
magistrate found in her judgment that:
‘…
the
doctor says that alleged she had been raped by her cousin on 1
September, which is therefore that even her evidence and the
evidence
of these witnesses is corroborated by the evidence of the doctor in
this J88 report.’
The
doctor, likewise, could not corroborate the complainant’s
version. He simply recorded the complainant’s allegation
made
to him, which was:
‘
Alleged
to have been raped by her cousin on 01/9/2017
She
denies having previous sexual encounters.’
[25]
The most significant aspects of what the doctor recorded on the J88
document
were the date of his examination of the complainant and the
conclusion to which he came. The date of the examination was 13
September
2017, some 12 days after the alleged rape. His conclusion
regarding the allegation of rape and the examination that he
performed
was the following:
‘
Lack
of positive finding on clinical examination does not rule out vaginal
penetration.’
[26]
The doctor came to that conclusion after recording that the
complainant’s
physical examination was normal in all material
respects, including the examination of her genital area.
Significantly, he recorded
that there were no signs of any fresh
tears in the complainant’s hymen, which was described as being
‘annular’
in appearance. That is troubling, given the
complainant’s version of what allegedly happened and the
bleeding that she described.
[27]
In
S
v MM
,
[11]
Wallis JA stated that it
was becoming an increasing feature of rape cases that a doctor’s
report is:
‘…
simply
handed in by consent and the doctor [is] not called to give evidence.
That practice is, generally speaking, to be deprecated.
It means that
there is no opportunity for the doctor to explain the frequently
subtle complexities and nuances of the report; to clarify
points
of uncertainty and to amplify upon its implications and the reasons
for any opinions expressed in the report. That may make
the
difference between a conviction and an acquittal, or perhaps a
conviction on a lesser charge.’
The
doctor’s evidence should have been called to clarify both his
examination and his finding, but it was not.
[28]
The fourth difficulty is the timeline of the evidence adduced by the
State.
As mentioned previously, it was presented as a seamless
narrative that flowed sequentially from the date of the alleged rape.
But,
in truth, it did not. The period from the date of the alleged
rape to the date of the medical examination is some 13 days. What

happened over this period is clouded by a lack of particularity. Time
is simply unaccounted for in the evidence of the complainant.
[29]
The fifth
area of concern arises from the nature of the defence raised by the
appellant. His defence was an alibi. He stated that
he was in Durban
at the time of the alleged rape. The law on the issue of alibis is
clear. There is no onus on an accused person
to establish such a
defence. It is the task of the State to disprove it. In
R
v Mokoena
,
[12]
the court held that:
‘
If
the
onus
is upon the Crown to rebut the alibi, as it certainly
is, then the evidence as a whole must be considered and the fact that
the
accused and his witness told stories, which in some respects
disagree, does not mean that the Crown case has been proved beyond

reasonable doubt ...’.
[30]
If an alibi
might be reasonably true, the accused must be acquitted. The correct
approach is to consider the alibi in the light
of the totality of the
evidence presented to the court, as stated in
Mokoena
.
In evaluating the defence of an alibi, in
R
v Hlongwane
,
[13]
Holmes AJA stated as follows:
‘
At
the conclusion of the whole case the issues were:
(a)
whether
the alibi might reasonably be true and
(b)
whether the denial
of complicity might reasonably be true. An affirmative answer to
either (a) or (b) would mean that the Crown
failed to prove beyond
reasonable doubt that the accused was one of the robbers.’
[31]
In
S
v Musiker
,
[14]
the Supreme Court of Appeal observed that once an alibi has been
raised, it has:
‘…
to be accepted unless it
was proved to be false beyond reasonable doubt’.
The
State appears not to have realised that it bore the onus of
disproving the appellant’s alibi, for it made no attempt to
do
so.
[32]
The result
is that the State’s case was predicated upon the evidence of a
single witness. It is so that the evidence of a
single witness is
capable of founding the conviction of an accused person, if it is
satisfactory in every material respect.
[15]
In this instance, the single witness’ capacity to testify under
oath is, at best for the State, uncertain. When the complainant’s

version of events is considered in the light of the findings of the
doctor who examined her, there is, at the very least, reasonable

doubt about that version.
[33]
After a consideration of the evidence and after anxious
consideration, one
is left with the disquieting feeling that an
injustice has been visited both upon the complainant and the accused,
primarily from
the failure by the court a quo to properly consider
the mental capacity of the complainant. Ours is a violent society and
more
often than not, those that suffer that violence are female.
Victims of gender-based violence must be given the full protection of

the law. That is not possible when the basic principles, long
engrained in our legal system, are simply ignored.
[34]
The result, in my view, is that it is unsafe to allow the appellant’s

conviction to stand. By virtue of that conclusion, it is not
necessary to consider whether the sentence of life imprisonment was
a
just sentence.
[35]
I would accordingly propose that the appeal be upheld, and that the
appellant’s
conviction and sentence be set aside.
MOSSOP J
I
agree and it is so ordered:
RADEBE
J
APPEARANCES
Counsel
for the appellant:
Mr B
Mbatha
Instructed
by:
Legal
Aid South Africa
187
Hoosen Haffejee Street
Pietermaritzburg
Counsel
for the respondent:
Mr D.
S. Magwaza
Instructed
by:
Director
of Public Prosecutions
Pietermaritzburg
[1]
The
charge sheet alleged the date of the rape to be 1 September 2017.
The complainant, however, never disclosed the date of either
of the
two incidents that she narrated that involved the appellant. She was
impermissibly led by the State prosecutor on the
date of the rape,
who stated to the complainant that there was ‘an incident that
occurred on the 1 September 2017 …’,
to which the
complainant agreed. But it was clear from her evidence that she did
not know the date because when she explained
what had occurred on
the date of the alleged rape, she stated: ‘Then the following
day it was on a Thursday even though
I cannot recall the date
Zwelakhe appeared again.’
[2]
While
the content of the report considered the desirability of the
complainant testifying through an intermediary, it is worth
noting
that the regional magistrate did not consider this option and an
intermediary was, consequently, not used.
[3]
Section
192 of the CPA.
[4]
S
v Katoo
2005
(1) SACR 522
(SCA);
[2006] 4 All SA 348
para 11.
[5]
S
v Matshivha
2014
(1) SACR 29
(SCA);
[2013] ZASCA 124
para 10.
[6]
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development, and others
[2009]
ZACC 8
;
2009
(4) SA 222
(CC)
para 166.
[7]
S v SM
2018
(2) SACR 573
(SCA) para 18 (
SM
).
[8]
R
v Rose
1937
AD 467
at 473;
S
v Scott-Crossley
2008
(1) SACR 223
(SCA) para 17.
[9]
S
v Hammond
2004
(2) SACR 303 (SCA).
[10]
S
v Banana
2000
(3) SA 885
(ZS) at 895E.
[11]
S
v MM
[2012]
ZASCA 5
;
2012 (2) SACR 18
(SCA) paras 15 and 24 (
MM
).
[12]
R
v Mokoena
1958
(2) SA 212
(T) 217G-H (
Mokoena
).
[13]
R
v Hlongwane
1959
(3) SA 337
(A);
[1959] 3 All SA 308
(A) at 339C-D.
[14]
S
v Musiker
[2012]
ZASCA 198
;
2013 (1) SACR 517
(SCA) para 15.
[15]
Cupido
v S
[2024]
ZASCA 4 para 19.