Nkosi v S (AR164/2022) [2024] ZAKZPHC 103 (29 October 2024)

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[2024] ZAKZPHC 103
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Nkosi v S (AR164/2022) [2024] ZAKZPHC 103 (29 October 2024)

SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR164/2022
In
the matter between:
KHAYELIHLE
NKOSI

APPELLANT
and
THE
STATE

RESPONDENT
ORDER
On
appeal from:
Ngwelezane Regional Court (Magistrate A Ramasir
sitting as court of first instance):
1.
The appeal against the conviction on two counts
of rape is upheld.
2.
The judgment of the court
a quo
is set aside and substituted
with the following
‘
2.1
The accused is found not guilty on counts 1 and 2.
2.2
The accused is convicted on one count of rape in circumstances where
the victim was raped more than
once by the accused namely on two
occasions, as contemplated in item
(a)
(i) of Part I of
Schedule 2.’
3.
The appeal against sentence is upheld.
4.
The sentence of the court
a quo
is set aside and replaced with
the following sentence:
‘
The
accused is sentenced to 25 years imprisonment.’
5.
Such sentence is ante-dated to 25 October
2012.
JUDGMENT
Henriques
J (Mpontshana AJ concurring):
Introduction
[1]
This is an appeal exercised by the appellant in
terms of his automatic right of appeal against the convictions and
sentences imposed
by the Ngwelezane Regional Court. The appellant was
charged with three counts of rape, read with the provisions of s 51
and Schedule
2 of the Criminal Law Amendment Act 105 of 1997 (the
CLAA), in that he is alleged to have had sexual intercourse with a
28-year-old
complainant, K[...] S[...] N[...] (the complainant), on
three occasions on 20 August 2011, without her consent, and acting at
all
material times in common purpose with a co-perpetrator.
[2]
The appellant, who was legally represented at
the time, pleaded not guilty to two counts of rape and admitted to
having consensual
sexual intercourse with the complainant once on the
night in question in respect to one count of rape. On 24 October
2012, the
appellant was convicted on two counts of rape as charged
and, on 25 October 2012, sentenced to life imprisonment. On the same
day,
he was advised of his right to an automatic appeal by the
presiding magistrate, but for some inexplicable reason, an
application
for leave to appeal the sentences imposed was heard on 29
July 2013 and refused.
Grounds
of appeal
[3]
The first ground of appeal was that the court
a
quo
erred in convicting the
appellant on the two counts of rape as there was insufficient
evidence to support such a conviction. The
complainant was a single
witness and her evidence was not treated with the necessary caution,
given the appellant’s version
that she was a sex worker. In
addition, as the appellant admitted to having sexual intercourse with
the complainant on the night
in question, the issue in the appeal was
whether the complainant had consented to such sexual intercourse.
[4]
The second ground of appeal was that shortly
after the alleged rape, the complainant failed to make a first report
to the police
officers who approached her and the appellant whilst
they were walking on the road. Ms Citera, who appeared for the
appellant,
submitted that this negated her allegations of rape as she
failed to make such a report at the first opportunity.
[5]
The third ground of appeal was that the court
a
quo
misdirected itself in rejecting
the appellant’s version in circumstances where there were
mutually destructive versions.
The court
a
quo
also erred in not pronouncing a
finding in respect of the third count of rape. Lastly, when
considered holistically, it was alleged
that the respondent had not
discharged the onus of establishing the commission of the offences
beyond reasonable doubt.
[6]
As regards the sentence imposed, the appellant
submits that the court
a quo
misdirected itself as the prescribed
minimum sentence of life imprisonment was not applicable as:
(a)
no finding was made that the appellant acted in common purpose with a
co-perpetrator at the time
of committing the rapes; and
(b)
the charge sheet did not indicate that the complainant was raped more
than once.
[7]
Consequently, in the absence of such findings,
the court
a quo
committed
a misdirection, as the prescribed minimum sentence applicable was
that of ten years’ imprisonment on each count
and not life
imprisonment.
The
evidence
[8]
In the court
a
quo,
the respondent led the evidence
of two witnesses, that of the complainant and Ms Bongeka Mthembu, the
investigating officer. The
J88 form was handed in by consent and
recorded superficial scratches on the complainant’s back and no
other injuries were
noted. The court
a
quo
called three witnesses, namely
Sergeant Zwelakhe Mhlongo, Constable Linda Mashaba and Constable
Nomuso Ndlovu to testify in relation
to the first report. The
appellant testified and called no witnesses.
[9]
The complainant, a vendor from Richards Bay,
testified that on 20 August 2011, between 19h00 and 20h00, after she
had finished selling
apples and oranges, she, together with her
friend, M[...], went to Mazulu tavern, where they consumed alcohol.
She could not recollect
the exact time that they had left the tavern
but estimated it was at approximately 03h00 as she had written her
statement between
04h00 and 05h00.
[10]
After they had left the tavern, they were
approached by the appellant, who was in the company of two men. The
appellant grabbed
her and pushed her off the road into a secluded
place that was ‘like a forest’. She noticed one of the
appellant’s
companions handing him something, which she later
realised was a knife. The appellant’s companions were forcibly
trying to
take M[...]’s bag away from her and she observed
M[...] run away. Although it was dark at the time she encountered the
appellant
and his companions, there was light emanating from the
stores around the area as they were walking toward the garage. The
appellant
instructed her to lie down and pointed at her with the
knife when she refused.
[11]
He tore her trousers, removed them, and
informed her that he wanted to have sexual intercourse with her.
Thereafter, the appellant
did not say anything further and ‘inserted
[his penis] into her vagina’ and had sexual intercourse with
her. She knew
that he had ejaculated as she felt ‘something on
her buttocks going down towards through her buttocks’. It was
semen.
After the appellant had ejaculated for the first time, he
removed his penis. He thereafter inserted his penis into her vagina
for
a second time and had sexual intercourse with her again.
[12]
He did this until his friend approached to say
that the appellant should finish as he also wanted to have sexual
intercourse with
her. At the time, his friend threw M[...]’s
nightdress at them. When his friend made the approach, the appellant
refused
and said he ‘won’t let it because I had a nice
vagina’. The appellant remained with his penis in her vagina
and
continued to have sexual intercourse with her.
[13]
When he was done, the appellant took M[...]’s
nightdress and cleaned himself as well as her. After doing this, the
appellant
had sexual intercourse with her again by inserting his
penis into her vagina. After the appellant had finished, he wiped her
and
himself again and told her to get dressed. She confirmed that the
appellant had ejaculated again as she could feel his semen. After

they had dressed, the appellant told her to accompany him to his
homestead and took her jersey from her and wore it.
[14]
As they were walking on the road, the police
approached from behind. At the time, the appellant had his arm around
her waist. When
the police vehicle stopped, M[...] alighted and
approached with the police and the complainant explained to them what
had happened.
She assumed that her friend had told the police what
had transpired, as M[...] had seen her being taken by the appellant
into the
dark place but she had run away. When the police questioned
her as to what had transpired, she told them ‘this one slept
with me by inserting his penis into my vagina’.
[15]
On hearing this, the police removed her jersey
from the appellant, handcuffed him, and placed him inside the police
vehicle. She
accompanied the police, M[...], and the appellant to the
police station and the appellant was taken to the holding cells. As
they
were under the influence of alcohol, the police informed her
that they had to wait until morning to prepare their statements. She

testified in answer to a question relating to her level of
intoxication that ‘I did not drink that much but they said it

was because they could smell it’. She testified that she could
stand properly and speak normally.
[16]
Her statement was taken the following morning
after she had been taken to MP Memorial Hospital. She was examined at
the hospital
and provided with anti-retroviral medication. She
testified that when the appellant initially grabbed her, he did not
assault her
but placed his hand over her mouth. When the appellant
had undressed her, he had removed her underwear together with her
trousers.
Whilst lying on the ground during the rape, she was not
injured on her back but the appellant injured her on her thighs, as
when
she refused to open her thighs, he used his knee to forcibly
open her thighs.
[17]
She did not know the appellant and she had seen
him for the first time on that day. The complainant disputed the
appellant’s
version that she had consented to have sexual
intercourse with him on one occasion for payment as she was a sex
worker. She reiterated
that she was a vendor. She confirmed in answer
to a question from the prosecutor that when she observed the
appellant at the police
station, he looked like he was drunk and the
police questioned him regarding his state of sobriety.
[18]
During cross-examination, the complainant
acknowledged that on her arrival at the tavern, she had purchased
three beers but during
the course of the night and early hours of the
morning, apart from the beers, she had also consumed brandy which her
friend had
purchased. She acknowledged during cross-examination that
she was ‘drunk, but not that drunk that it can make me fall’

and was in full control of her mental faculties and could distinguish
between right and wrong.
[19]
She denied being a sex worker and denied having
engaged in consensual sex with the appellant for the amount of R40
and denied that
her usual amount was R50. At the time she left the
tavern, she had R10 for transport. She subsequently acknowledged that
she had
R50 but was no longer purchasing any alcohol, as her friends
were doing so. She acknowledged that she did not think of stopping

the police vehicle as she was drunk, scared, and the vehicle had
approached them from behind.
[20]
The appellant was not known to her and he was
accompanied by two males when they approached her. When he grabbed
her and she screamed,
the appellant blocked her mouth and she
observed his friend handing a knife to him, at which stage he then
took her to the secluded
area where he raped her. She could see the
blade but could not see what kind of knife it was. She disputed the
appellant’s
version that on the night in question he was at
Lion’s Den Bar in Richards Bay and exited the bar at
approximately 21h30
and whilst walking to hitchhike towards Alton, he
came across her and M[...].
[21]
She disputed that the appellant asked her what
she was doing in the area and disputed that she responded by saying
that she was
a sex worker. She indicated that she sells apples and
oranges. She further disputed that she voluntarily accompanied him to
a secluded
area where they engaged in consensual sexual intercourse
and left her friend behind on the road.The complainant confirmed that
the appellant did not have sexual intercourse with her once but did
so three times without her consent.
[22]
The investigating officer, Bongeka Maureen
Angela Mthembu (Ms Mthembu) testified that she was unable to trace
M[...]. When asked
to explain why the statement of the arresting
officer was not filed, she indicated that she managed to eventually
contact Sergeant
Mhlongo from Richards Bay, who informed her that he
had not arrested any suspect concerning a rape incident but rather
for being
drunk in a public place.
[23]
Her enquiries with Sergeant Mhlongo eventually
led to her finding out that the initial investigating officer was
Constable Mashaba.
During cross-examination, she confirmed that she
did not have any first report concerning the rape matter and could
not account
for the fact that Sergeant Mhlongo did not make a
statement to this effect. She confirmed having requested a statement
from Sergeant
Mhlongo. That then was the evidence presented by the
respondent in the court
a quo.
[24]
The appellant testified that on 20 August 2011,
he had consensual sexual intercourse with the complainant - once. On
the evening
in question, he was leaving Lion’s Den about to
hitchhike home. He testified he was not drunk but was tipsy. At about
21h30,
he observed two ladies whilst walking. He was in the company
of four men when he left the tavern but left them behind and carried

on walking. He was alone when he observed the complainant and
Simangele (the complainant referred to her as Doris Ngubane), whom
he
knew. He questioned them as to what they were doing there so late at
night and the response was that they were sex workers.
[25]
He questioned the complainant as to how much
she charged and she indicated R50 per round. She agreed to have
consensual sex with
him for R40. At the time, they were standing near
the workshops and they then crossed the road to a grocery area where
they had
consensual sexual intercourse. After they had finished and
he had paid the complainant, they then returned to the road and a
police
van then emerged with Simangele inside the vehicle.
[26]
On seeing them, Simangele responded to a
question from the police that he, the appellant, was a friend of the
people who had taken
her bag. This resulted in his arrest. He,
together with Simangele and the complainant, travelled in the police
vehicle to the police
station. Simangele informed him that if he did
not mention who his friends were who had taken her bag, they would
open a false
rape case against him.
[27]
He disputed the complainant’s version
that he forcibly penetrated her and threatened her with a knife and
that the sexual
intercourse was not consensual. In addition, he
disputed that the incident occurred at around 03h00 and was adamant
that it was
at 21h00, as he was going to board a bus at 22h00.
[28]
The appellant indicated that the complainant
and her friend were fabricating a case against him as his friends
took Simangele’s
clothing. He disputed the complainant’s
version that at the time of the police’s arrival, she made a
report that she
had been raped. He indicated that he was arrested for
drinking in public and it is a common occurrence in the Richards Bay
area
that if a person is found intoxicated on the road, then the
person is taken to the holding cells to sober up. That is the reason

why he was taken to the police station and he was not charged. He was
only charged for rape after the investigating officer had
arrived.
[29]
The appellant, during cross-examination, indicated that he knew the
complainant’s
companion, Doris Ngubane, as ‘Simangele’
and that she was a sex worker, as he had seen her ply her trade near
the garage
in Hillside, Richards Bay. He confirmed that he provided
the complainant with money for engaging in the sexual intercourse
with
him and were heading back to Simangele. It was on their return
to the road that he noticed the police van with Simangele in the

company of a number of policemen.
[30]
The police placed him together with Simangele and the complainant
into the
police van and when he questioned her as to why she was with
the police, Simangele reported to him that his friend, who had been

in his company, had taken her bag. He was surprised to see her alight
from the police vehicle and also surprised that she mentioned
his
friend who had been at the tavern with him as he had not seen her at
the tavern earlier on.
[31]
He confirmed that at the time he was not informed what he had been
arrested
for but that all along he was on good terms with Simangele.
He was only charged for rape the following morning when he was
informed
that the complainant had opened a rape case against him. He
testified that he informed the investigating officer that it was a
business deal and that he had not raped the complainant.
[32]
The appellant could, however, not explain why the complainant was
being used
to fabricate the case against him when it was Simangele
who had a complaint about her bag being stolen by his friend. He
could
also not explain why it was never suggested during the course
of the complainant’s cross-examination that the allegation of

rape was a fabrication between her and Simangele. That then was the
case for the appellant.
[33]
At the request of the appellant, the complainant was recalled to be
cross-examined
on certain aspects of her evidence which had not been
canvassed with her earlier. This related to the first report that she
testified
she had made to the police when they first arrived. It was
also put to her that the allegation of rape was a fabrication between

her and Simangele. She disputed that the appellant was arrested for
drinking in public and not for rape and disputed that she and

Simangele were fabricating a case against the appellant. She
testified that when the police arrived, it was mentioned that the

appellant must hand back the bag that was taken by his friends from
Simangele. The appellant indicated that he did not know who
these
people were. The police then also questioned the appellant as to why
he had slept with her, as it may be related to the taking
of the bag.
[34]
She disputed that whilst at the police station she and Simangele had
approached
the appellant and indicated they would withdraw the rape
charges if he handed back Simangele’s bag. The complainant
confirmed
that whilst at the police station, she mentioned to the
appellant that ‘if you infected me with a disease you will cure
me
until I am cured’. In the morning, the police questioned her
as to whether she could identify her assailant, and she pointed
to
the appellant and provided a description of his clothing.
[35]
The court called several witnesses to deal with the issue of the
first report.
None of these witnesses were of assistance. Sergeant
Mhlongo testified that he did not deal with a rape matter but was
aware that
the appellant was arrested because he was drunk. He
completed a form in the register to record this. He could no longer
locate
his pocket book and could not be of assistance to the court
and recollect precisely what had been reported to him. He confirmed

that he was with Constable Ndlovu at the time. When he spoke to the
complainant who was with the appellant at the time, she informed
him
that the appellant had mentioned to her that they should go to his
house and he observed that they had their arms around each
other. He
confirmed that he had arrested the appellant at approximately 05h30.
[36]
He indicated that on the night in question, the only person whom he
had arrested
and had taken to the cells was the appellant. He
disputed the complainant’s version that because she was drunk,
she was made
to wait and that was the reason why a statement was not
taken from her until the following morning. He indicated that he knew
nothing
about the complainant’s version that when she and the
appellant first approached them, the complainant made a report to him

that she had been raped or that after such a report, he handcuffed
the appellant and placed him in the police van and took her
jersey
from the appellant and handed it back to her. He indicated that he
knew nothing of this report and neither did he know the
complainant.
He could not proffer any explanation as to why if they did not know
each other, the complainant would specifically
mention that he was
the police officer whom she made the report to.
[37]
Sergeant Mhlongo confirmed that when he took the appellant into
custody in
the early morning, he did not explain his rights to him,
as they normally wait for persons like the appellant to sober up. He
knocked
off work at 06h00 and was not certain what transpired once he
had left. He confirmed that on the night when he took the appellant

into custody, he was with a female officer. As far as his
recollection of events is concerned, the complainant was not drunk
and
he did not arrest her nor did he take her to the police station.
[38]
He also indicated that at no stage on the night in question did
Simangele approach
him to advise him that her bag had been stolen nor
did she accompany him to the police station. He confirmed that after
he had
arrested the appellant and placed him in the cells, he had no
further role in the matter and it was possible for another officer
to
charge the appellant if any further crime had come to their
attention.
[39]
Constable Nomuso Ndlovu testified that she is currently employed at
the CSC
but on the night in question, was on duty together with
Sergeant Mhlongo. She was of no assistance to the court and could not
take
the matter any further, as she had no independent recollection
of the night’s events and was not assisted by her pocket book

as it had gone missing. She had no independent recollection of the
complainant making any report of being raped to her.
[40]
Constable Linda Voyelwa Mashaba testified that
she was on duty in the CSC. In the morning, at 06h00, when she
reported on duty,
she observed two women seated on the bench in the
charge office. The complainant made a report to her that she wanted
to open a
case of rape. She had confirmed with Warrant Officer
Dlamini, who was going off shift, that the reason why the
complainant’s
statement had not been taken down earlier was as
the complainant was under the influence of alcohol.
[41]
She took the statement from the complainant,
registered the docket, and took her to the hospital. At the time the
complainant had
made the report to her, the person who had allegedly
raped her was being held in the cells and her enquiries with the
police officer
on shift revealed he had been arrested for being
drunk.
[42]
She did not take a statement from M[...], as a
colleague of hers was scheduled to take her statement.
[43]
That then was the evidence presented in the
court
a quo.
Judgment
of the court
a quo
[44]
In its judgment on conviction, the court
a
quo
weighed up the evidence of both
the complainant and the appellant as well as the three witnesses who
were called to testify by it.
The court
a
quo
expressed its dissatisfaction
with the manner in which the police investigation was conducted,
specifically the fact that both Sergeant
Mhlongo and Constable Ndlovu
did not appear to do anything regarding the first report which the
complainant had made to them. They
could not even recollect what the
circumstances were under which the complainant was taken to the
police station.
[45]
The complainant was, however, adamant that she
had made a report to Constable
Mashaba
when she reported for duty. Constable Mashaba noted that the
complainant reported to her that her statement in relation to the

alleged rape could not be taken down any earlier, as the police had
informed her that she was in a drunken state and that after
she had
sobered up, a statement would be taken from her in relation to the
alleged rape.
[46]
The court
a quo
found that the complainant was a satisfactory witness who gave her
evidence in a clear and concise manner and was not shaken under

cross-examination. It found that Sergeant Mhlongo, who the
complainant indicated she had made the first report to regarding the

rape, was an unsatisfactory witness and was not honest and
forthright.
[47]
When confronted with the extract from the
register completed by him, Sergeant Mhlongo confirmed he was the
author of the entry,
but indicated that the word rape had not been
recorded and rather his drunkenness. He was evasive concerning what
had transpired
and the report which the complainant made to him. The
court
a quo
found on the probabilities that the complainant did make the first
report to him but he was neglectful in submitting an arresting

officer’s statement and tried to hide behind the drunkenness of
the complainant.
[48]
The court
a quo
found that the appellant did not create a good impression and did not
answer questions when put to him. On the probabilities, it
rejected
the appellant’s version that he had left the tavern at 21h30,
given the entry in the OB register at 04h30, relating
to his arrest
for being under the influence of alcohol. It also rejected the
appellant’s version in relation to what transpired
between him
and the complainant, specifically the fact that she was a sex worker
and he had paid her for her services. The court
found that the issue
of consent had been negated by the physical condition of the
complainant and that the appellant could have
been under no illusion
that she was drunk at the time.
[49]
It found that given the state of inebriation of
the complainant, the appellant’s version that they had
consensual sex on one
occasion fell to be rejected. In addition,
there was no basis to accept the version of the appellant that the
rape charge was a
fabrication between the complainant and her friend
as the appellant’s friend had stolen the bag. There was no
reason for
the complainant to falsely implicate the appellant in the
rape. As a consequence, the court
a
quo
concluded that the version of
the complainant that she was raped on two occasions on the night in
question ought to be accepted
and he found the appellant guilty on
two counts of rape only, as charged.
[50]
Although the charge sheet in respect of the
three counts referred to the fact that ‘the appellant acted in
common purpose
with a co-perpetrator’ the court
a
quo
made no finding in this regard
nor did it refer to this at all in its judgment on conviction. It
also failed to deal with the third
count of rape and render a verdict
in respect thereof.
Sentence
[51]
At the commencement of the trial, prior to
pleading, the appellant was warned by the presiding magistrate that
he faced sentences
in terms of the prescribed minimum sentencing
legislation, should he be convicted. However, at the time of
convicting the appellant,
the presiding officer made no finding as to
whether the appellant was convicted in circumstances where he acted
in common purpose
with anyone.
[52]
In mitigation of sentence, the appellant
testified, and apart from placing the appellant’s personal
circumstances on record,
Mr Masondo, his legal representative,
indicated that the only substantial and compelling circumstance which
he could advance, was
the fact that the appellant was a first
offender.
[53]
When sentencing the appellant, the court
a
quo
had regard to the appellant’s
personal circumstances, namely that he was 28 years old, that he had
four siblings, and two
children, one resided with their maternal
aunt, and one who resided with their mother and who were receiving a
child care grant.
The court took into account that he was a first
offender with no previous convictions nor any pending charges and had
been in custody
since 20 August 2011.
[54]
It
considered the triad of
Zinn,
[1]
the purposes of punishment, the seriousness of the offence, that it
involved rape, and that the appellant had threatened the complainant

with a knife at the time of the commission of the offences. Whilst it
acknowledged that he was a first offender, it was of the
view that
the circumstances of the case outweighed any mitigating circumstances
presented by the appellant’s personal circumstances.
[55]
It similarly ruled that there were no
substantial and compelling circumstances entitling it to deviate from
the prescribed minimum
sentence, save for the fact that he was a
first offender. What weighed heavily with the court when sentencing
the appellant, was
the fact that he did not show any remorse and
continued to deny having committed the offences. It was for these
reasons, in addition
to the fact that the appellant had been
convicted of rape on two occasions, that the court sentenced him to
life imprisonment and
declared him unfit to possess a firearm.
Submissions
at the appeal
[56]
At the hearing of the appeal, Ms Citera, who appeared for the
appellant, submitted
that the appeal should succeed as the appellant
was upfront with the court and did not deny having had sexual
intercourse with
the complainant on one occasion. He had no reason to
lie and the only issue in dispute was consent. The first report was
not made
on the first available opportunity and the State’s
investigation in this regard was ‘shoddy’, to say the
least.
She submitted that the court
a quo
only dealt with two
of the counts for which the appellant had been charged and did not
deal with the third count.
[57]
There was also not much effort made to locate M[...], who was in the
company
of the complainant on the night in question, as her evidence
could have corroborated the complainant’s version of events.
As
regards the level of intoxication of the complainant, she submitted
that the complainant changed her answers to suit the different
stages
of her version but had full control of her mental faculties when the
police arrived. She submitted that because the complainant
did not
make a first report to them, it did not support her version. She
submitted that there were two mutually destructive versions
before
the court
a quo
and the appellant ought to receive the benefit
of the doubt.
[58]
Turning now to sentence, Ms Citera submitted that there were
substantial and
compelling circumstances which the court
a quo
did
not take into account when sentencing the appellant. She submitted
that he was a first offender with two children and had no
pending
cases. Alcohol played a role in the commission of the offence and
this ought to have been a consideration which the court
a quo
took into account.
[59]
She acknowledged that the appellant indicated that he was tipsy and
not drunk
and the complainant indicated that she had drunk a number
of beers together with hard liquor. She acknowledged that what is
evident
from the evidence is the fact that intoxication played a key
role on the night in question. She submitted that if the complainant

is found to have been intoxicated, then so too was the appellant,
given the facts, and he ought to be given the benefit of the
doubt
and acquitted. She acknowledged, however, when it was suggested by
the court that if intoxication is found to play a key
role, then the
provisions of s 1(2) read together with s 3 of the Criminal Law
(Sexual Offences and Related Matters) Act 32 of
2007 (SORMA) would
come into play and the appellant could not escape liability as a
consequence.
[60]
Mr Magwaza, for the respondent, submitted that the court
a quo
correctly convicted the appellant and that a first report is not
a requirement for a conviction. A first report is only of relevance

where the appellant, as in the current instance, raises the question
of consent. The complainant’s evidence that she made
a first
report to
Sergeant
Mhlongo must be
accepted. He, in addition, submitted that the court
a quo
correctly approached the evidence of the complainant with
caution, given that she was a single witness.
[61]
He submitted that the court
a quo
correctly rejected the
appellant’s version as it was not reasonably possibly true when
viewed against the conspectus of evidence.
He indicated that there
was sufficient corroboration for the complainant’s evidence
that the incident occurred at the time
she testified, given that
Sergeant
Mhlongo testified the arrest
occurred at 05h30.
[62]
At the hearing of the matter, I raised with both Ms Citera and Mr
Magwaza additional
aspects in relation to the conviction and the
sentence, which they had not dealt with in their heads of argument
nor during the
course of their submissions. Mr Magwaza submitted that
the charge sheet was incorrectly framed and the court
a quo
did not make any finding in relation to the aspect of common purpose.
The charge sheet ought to have been amended in the court
a quo
to
read ‘rape committed on divers occasions’. He submitted
that this court was still entitled to amend the charge sheet
at this
stage given the nature of the evidence led.
[63]
Ms Citera submitted that if the appeal court were to do so, this
would render
the proceedings unfair and constitute a breach of the
appellant’s fair trial rights. However, both parties elected to
file
supplementary heads of argument and written submissions relating
to this issue, as neither one of them canvassed this point in
preparation for the hearing of the appeal and neither of them were
the authors of the respective heads of argument.
Analysis
[64]
An appeal court must always be mindful not to
interfere with the credibility findings of a trial court and its
evaluation of the
evidence, in the absence of a material
misdirection. In a criminal trial, a court’s approach to
assessing the evidence
‘
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.’
[2]
[65]
In
my view, the court
a
quo
correctly
applied the aforementioned test when evaluating the evidence
holistically, despite the fact that it was faced with the
evidence of
a single witness. It is trite that s 208 of the Criminal Procedure
Act 51 of 1977 (the CPA) makes provision for an
accused person to be
convicted on the evidence of a single competent witness, such as the
complainant in this instance.
[3]
[66]
I now turn to the first and third grounds of
appeal. Firstly, in my view, there is sufficient corroboration for
the evidence of
the complainant that she was raped by the appellant
on the night in question. That the appellant had sexual intercourse
with the
complainant is not in dispute. What is in dispute is whether
it was consensual or not. There is no basis for the appellant’s

version that the complainant is a sex worker and the court
a
quo
, in my view, was correct in
rejecting this version.
[67]
There is corroboration for the complainant’s
version in relation to the fact that on the night in question, the
appellant
was accompanied by friends and that she and M[...] had seen
them earlier at the tavern. The appellant did not dispute this and
although he indicated he did not see them, he said that it was
possible for them to have seen him. Her version that he was in the

company of friends is further corroborated by the appellant as the
appellant did not dispute that one of his friends had taken
M[...]’s
bag. In fact, he proffered this as a motive for them falsely
implicating him in the offences.
[68]
The complainant testified that during the
course of the non-consensual intercourse, a friend of the appellant
approached and asked
to have a turn to have sexual intercourse with
her. The appellant refused and simultaneously with the request, the
friend threw
M[...]’s nightdress at him. This lends credence to
her version that at the time, he was accompanied by a number of
people
and the only reason why, in my view, she was not raped by his
friend was because the appellant refused. This is also consistent

with her version that he wiped her and himself down after
ejaculating.
[69]
Secondly, there is corroboration for her
version as to when the incident occurred. She testified it occurred
in the early hours
of the morning, at approximately 03h00, as she had
made a statement between 04h00 and 05h00. The appellant’s
version was
that it did not occur at that time but occurred earlier
on in the evening. This is not supported by the evidence of Sergeant
Mhlongo
that they had approached in the vehicle and had taken the
appellant, as well as M[...] and the complainant, with them to the
police
station. His version is further improbable, given the evidence
presented in relation to the OB entry that the appellant was arrested

at 05h30.
[70]
Although the
J88 and medical report are inconclusive, it does record that there
were scratches on her back.  I agree with the
court
a
quo’s
finding that the
appellant was a poor witness and that his version ought to be
rejected as false, as it was not reasonably possibly
true. The court
a quo
correctly
rejected his version in light of the conspectus of the evidence.
[71]
The other difficulty which the appellant faces,
in my view, is the aspect of consent. One of the aspects considered
crucial to the
definition of rape is whether or not there was
consent. In terms of s 1(2) of SORMA, for purposes of s 3, consent
means ‘voluntary
or uncoerced agreement’. According to s
1(3)
(d)
(iii),
a person is incapable in law of appreciating the nature of the sexual
act if that person is ‘in an altered state of
consciousness,
including under the influence of any medicine, drug, alcohol or other
substance, to the extent that [the person’s]
consciousness or
judgement is adversely affected’.
[72]
The appellant’s version is that he
engaged in consensual sexual intercourse with the complainant. Both
confirm that they had
indulged in alcohol during the night in
question. The appellant described himself as being tipsy and the
complainant herself as
being drunk but not so drunk that she did not
know what was going on around her. There are two conflicting versions
in this regard,
that of the appellant that he engaged in consensual
sex with the complainant as she was a sex worker. Juxtaposed is the
complainant’s
version that she was not a sex worker, and was
forced at knife point to have sexual intercourse with the appellant
without her
consent. There is thus also an element of coercion to the
alleged rape vitiating consent envisaged in s 1(3)(a) of SORMA.
[73]
Secondly, intoxication can vitiate consent and
courts must have regard to the surrounding circumstances and draw
inferences from
the facts. In the circumstances and on the facts of
this particular matter, I am of the view that it cannot be said that
the complainant
was capable of consenting to sexual intercourse and
this falls within the definition contemplated by s 1(3)
(d)
(iii)
of SORMA, as she was in an altered state of consciousness being under
the influence of alcohol. That they were both inebriated
is confirmed
by Sergeant Mhlongo as well as Constable Mashaba.
[74]
Even though she testified she could speak and
stand properly the objective evidence of Constable Mashaba that
Warrant Officer Dlamini
had reported to her that the complainant’s
evidence could not be taken earlier as she was drunk, in my view
clearly established
she was intoxicated to the extent that she was
incapable of consenting to sexual intercourse. I consequently agree
with the finding
of the court
a quo
that there was no consent.
[75]
Turning now to the second ground of appeal, one
of the criticisms levelled by Ms Citera in relation to the
complainant’s version
was her failure at the first available
opportunity to make a report concerning the rape. She submits that
the court
a quo
committed
a misdirection in finding that Constable Mashaba was the first report
when it was not the first available opportunity
for the complainant
to report the rape. This is in the face of the evidence of Sergeant
Mhlongo and Constable Ndlovu that the complainant
had not made a
report to them, although she said she did.
[76]
Section 59 of SORMA is relevant in this regard,
and provides that ‘[i]n criminal proceedings involving the
alleged commission
of a sexual offence, the court may not draw any
inference only from the length of any delay between the alleged
commission of such
offence and the reporting thereof’.
[77]
The
Supreme Court of Appeal in
Monageng
v S
[4]
held
the following:
‘
[23]
Much was made by the appellant’s counsel of the complainant’s
apparent ability to act normally
after the rape and her delay in
reporting it. It has been firmly established in a number of studies
on the impact of violence,
including rape, against women that victims
display individualised emotional responses to the assault. Some of
the immediate effects
are frozen fright or cognitive dissociation,
shock, numbness and disbelief. It is therefore not unusual for a
victim to present
a façade of normality.
[24]
It is further widely accepted that there are many factors which may
inhibit a rape victim from disclosing
the assault immediately.
Children who have been sexually abused, especially by a family
member, often do not disclose their abuse
and those who ultimately do
may wait for long periods and even until adulthood for fear of
retribution, feelings of complicity,
embarrassment, guilt, shame and
other social and familial consequences of disclosure. Significantly,
the newly passed
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
provides, in
section 59
,
that–
“
in
criminal proceedings involving the alleged commission of a sexual
offence, the court may not draw any inference only from the
length of
any delay between the alleged commission of such offence and the
reporting thereof.”
Raising
a hue and cry and collapsing in a trembling and sobbing heap is not
the benchmark for determining whether or not a woman
has been raped.
There was thus nothing unusual about the complainant’s
behaviour and her explanation for not immediately
reporting the
appellant is plausible.’ (Footnote omitted.)
[78]
The
court in
Maila
v S
[5]
endorsed the view expressed in
S
v Vilakazi
[6]
that it is not mandatory that there be a first report in relation to
the actual rape.
[79]
Ms Citera emphasised that the first report
would have gone a long way to ‘rebut’ the appellant’s
version of consensual
intercourse. Given the defence, a first report
made at the first opportunity the complainant had, she submitted,
would have negated
the appellant’s defence. That the
complainant did not do so when the police, Sergeant Mhlongo and
Constable Ndlovu, arrived
at the scene, only goes to corroborate the
appellant’s version.
[80]
Firstly, the respondent’s evidence
regarding the first report is based on the evidence of the
complainant and Constable Mashaba.
The evidence of the police
witnesses called by the court
a quo
is sketchy, to say the least. I agree with the court
a
quo’s
indication that on the
probabilities, a report must have been made to Sergeant Mhlongo and
that he and Constable Ndlovu did nothing
about it at the time, given
the complainant’s state of sobriety.
[81]
It is the only explanation for the complainant
and M[...] being told to wait until later. On the probabilities, the
complainant
must have made a report to Sergeant Mhlongo and Constable
Ndlovu and they did nothing about it. She repeated the report to
Constable
Mashaba when she came on duty, hence Constable Mashaba’s
subsequent conduct.
[82]
agree with the submissions of the respondent
that the first report was necessary to prove the rape, given the
defence of consent.
Having regard to the evidence, when viewed
holistically, I accept the complainant’s version that she
reported it to Sergeant
Mhlongo and Constable Ndlovu and that she was
immediately taken to the police station. Given the conclusion that
the intercourse
was non-consensual, this ground of appeal is without
merit.
[83]
In
her supplementary heads of argument, Ms Citera submitted that
fundamental to the rights entrenched in s 35(3) of the Constitution,

is the right ‘to be informed of the charge with sufficient
detail to answer it’.
[7]
She submits that from the outset, in order for the appellant to have
thoroughly prepared and answered the charges he faced, he
ought to
have been furnished with a proper charge sheet. She submitted that,
as a consequence, the appellant cannot be found guilty
on that which
he had not been charged, competent verdicts being excluded.
[84]
As the respondent had specifically included
common purpose in the charge and because the court
a
quo
only found the appellant guilty
of rape, especially on two occasions and there was no pronouncement
on the aspect of common purpose,
it was inconsistent with the fair
trial principles to allow an amendment to the charge sheet,
alternatively to allow him to be
convicted for rape, even if the
evidence shows otherwise.
[85]
She
submitted that the two separate acts of penetration, which the
complainant testified to, occurred during the course of a single

event, a few minutes apart. She relied on
S
v Blaauw
,
[8]
where Borchers J remarked as follows:
‘
Each
case must be determined on its own facts. As a general rule the more
closely connected the separate acts of penetration are
in terms of
time (ie the intervals between them) and place, the less likely a
court will be to find that a series of separate rapes
has occurred.’
She
submitted that an alternative would be to find separate and distinct
acts of rape but for the purposes of sentencing, to consider
it as
one act.
[9]
[86]
Mr Magwaza, in his supplementary heads of
argument, submitted that the appellant was charged with three
individual counts of contravening
the provisions of s 3 of
SORMA. He knew at the outset that the State intended to, and did,
invoke the provisions of the CLAA.
This was as the State alleged the
appellant acted in the furtherance of a common purpose with a
co-perpetrator. The court
a quo
convicted the appellant on two
counts of rape but the court was silent about the third count in
respect of which the appellant was
charged, with no verdict given.
From the available evidence, he conceded that the evidence
established that it was only the appellant
who raped the complainant
and his friend did not participate in the rape, as the appellant
refused to allow him an opportunity
to do so.
[87]
He submitted that the charge sheet in the court
a quo
was
incorrectly framed and that the appellant ought to have been charged
with one count of rape, read with s 94 of the CPA,
to allege
that the rape occurred on diverse occasions, instead of charging the
appellant with three counts of rape. He submitted
that the provisions
of s 51(1) and Part 1 of Schedule 2 of the CLAA were applicable
on the basis that the complainant was
raped on diverse occasions.
[88]
Similarly,
he also relied on the decision of Borchers J in
Blaauw
where the court held the following:
[10]
‘
Mere
and repeated acts of penetration cannot without more, in my mind, be
equated with repeated and separate acts of rape. A rapist
who in the
course of raping his victim withdraws his penis, positions the
victim's body differently and then again penetrates her,
will not, in
my view, have committed rape twice . . . Each case must be determined
on its own facts. As a general rule the more
closely connected the
separate acts of penetration are in terms of time (ie the intervals
between them) and place, the less likely
a court will be to find that
a series of separate rapes has occurred. But where the accused has
ejaculated and withdrawn his penis
from the victim, if he again
penetrates her thereafter, it should, in my view, be inferred that he
has formed the intent to rape
her again, even if the second rape
takes place soon after the first and at the same place.’
[89]
He conceded that the court
a
quo
erred and committed a
misdirection by omitting to make a pronouncement on count 3 as it
stands and is consequently ‘left hanging
on the head of the
appellant’ as it is without a verdict. The correct approach
would have been for the court
a quo
to provide a verdict that the court
deemed fit or quash count 3. In terms of the provisions of s 106(4)
of the CPA, an accused who
pleads to a charge is entitled to demand
that he be acquitted or convicted.
[90]
He correctly acknowledged that the prosecutor
charged the accused with many counts, and conceded that the court has
an obligation
to ensure that there is no duplication of convictions.
He submitted that this court ought to invoke the provisions of s 88
of the
CPA and find that the complainant was raped on diverse
occasions, and consequently the provisions of s 51(1) and Part 1 of
Schedule
2 of the CLAA are triggered.
[91]
As regards the convictions, the court
a
quo
made a finding of guilt in
respect of two counts of rape for which the appellant was charged. It
did not pronounce on the third
count of rape. Section 106(4) of the
CPA entitles an accused who pleads to a charge to demand an acquittal
or to be convicted.
It reads as follows:
‘
An
accused who pleads to a charge, other than a plea that the court has
no jurisdiction to try the offence, or an accused on behalf
of whom a
plea of not guilty is entered by the court, shall, save as is
otherwise expressly provided by this Act or any other law,
be
entitled to demand that he be acquitted or be convicted.’
[92]
As
the appellant pleaded to each of the individual counts in the charge
sheet, in terms of s 106(4) he is entitled to demand an
acquittal or
to be convicted on the third count of rape to which he has
pleaded.
[11]
Consequently, the
appellant is entitled to a verdict on the third count of rape, in
respect of which there has not been a pronouncement.
This will be
dealt with hereinafter once the further written submissions have been
considered.
[93]
I now turn to the submissions that this court
ought to invoke the provisions of s 88 of the CPA. Regrettably,
I do not agree
with the respondent that it can be invoked, as it
relates to a defect in the charge. There was no defect. What the
respondent sought
to do was rely on the provisions of Part 1 of
Schedule 2 of the CLAA to invoke the prescribed minimum sentence of
life imprisonment,
in circumstances where it is alleged that the
accused acted in common purpose with a co-perpetrator in raping the
complainant.
[94]
It sought to invoke these provisions to make
the appellant aware of a possible term of life imprisonment on each
count if convicted.
The respondent’s reliance on s 88 is
misplaced but it is not without a remedy. What then of s 94 of the
CPA? It reads
as follows:
‘
Where
it is alleged that an accused on divers occasions during any period
committed an offence in respect of any particular person,
the accused
may be charged in one charge with the commission of that offence on
divers occasions during a stated period.’
[95]
The
authors of
Du
Toit: Commentary on the
Criminal Procedure Act
[12]
indicate that an
accused’s right to a fair trial ‘is placed in jeopardy
where the prosecution proceeds on a single
count of rape while the
evidence supports a multiplicity of rapes’. If the respondent
is unable to specify each occasion
on which the crime was committed,
it ought to rely on
s 94
, as it was intended to cover the commission
of the offence on diverse occasions, as in this instance.
[96]
There is a lack of clarity in the court
a
quo’s
finding on conviction,
as it was silent in respect of the circumstances under which, and if,
the CLAA was applicable. The problem
faced by the respondent is the
effect of the court
a quo’s
silence in not pronouncing on the
aspect of common purpose, which is that the prescribed minimum
sentence applicable to each individual
count of rape is that of ten
years’ imprisonment, as argued by Ms Citera.
[97]
There
is also a further issue with the record in that exhibit B, which is
the SAP69 form,
[13]
reflects
that the appellant was found guilty of three individual counts of
rape and sentenced to life imprisonment, which does
not accord with
the verdict in the transcribed record. The verdict reads as follows:
‘
The
Court finds that there were two counts of sexual intercourse. The
accused is accordingly found guilty as charged on two counts
of
rape.’
[98]
This clearly is a misdirection as there was no
evidence to support the finding that the appellant acted in common
purpose. The finding
of the court
a
quo
that there were two instances of
non-consensual intercourse is correct. What is not correct was the
finding that the appellant was
found guilty as charged. There is no
evidence that the appellant, when he committed the rapes, acted in
furtherance of a common
purpose with a third party, as alleged in the
charge sheet.
[99]
What
is evident from the evidence and the judgment of the court
a
quo
on
conviction, is that the court
a
quo
considered
that the complainant had been raped twice by the appellant on the
same day. Such a finding is consistent with the evidence
presented,
specifically with the complainant’s evidence that the appellant
penetrated her on two separate occasions and ejaculated.
Although she
testified that he had ‘raped her three times’ this does
not accord with the transcribed record. In
my view the record
established two separate acts of penetration. I agree with the
respondent’s reliance on
Blaauw
in
this regard as the facts of this matter are distinguishable from that
of
Tladi.
.
[14]
[100]
Part
1
of Schedule 2 of the CLAA also provides for the minimum sentence of
life imprisonment in circumstances where the victim was raped
more
than once by an accused. The facts support such a finding. In
addition, no prejudice can be complained of by the appellant,
as he
was forewarned of the prescribed minimum sentence of life
imprisonment on each count. His defence of consent would have
remained unchanged if the respondent had at the outset relied on the
provisions of
s 94
and had merely charged him with one count of rape
committed on diverse occasions. I am fortified in this view having
regard to
the Full Court decision in
S
v Molaza
[15]
Specifically paragraph 126 of the judgment in which the court
held…”The
number
of counts
of
rape of which an accused is convicted, does not dictate whether the
1997 Act is triggered. The facts underpinning the conviction/s
do.”
[101]
There
is also no reason to amend the charge sheet, in my view, as the facts
support a finding of rape in circumstances contemplated
by item
(a)
(i)
of
Part 1 of Schedule 2 of the CLAA
[16]
in circumstances where the appellant raped the complainant on two
occasions.
[102]
In my view for the reasons aforementioned and
on the objective evidence, the appellant is entitled to be acquitted
on one count
of rape in terms of s 106(4) and the appeal on the two
counts of rape ought to be upheld. However, a verdict of guilty on
one count
of rape as contemplated in item (a)(i) of Part 1 of
Schedule 2 is warranted as the complainant was raped more than once
by the
appellant.
Sentence
[103]
The powers of an appellate court to intervene
in a sentence imposed by a lower court is circumscribed. This is
consistent with the
principle that the imposition of an appropriate
sentence resides pre-eminently within the discretion of the trial
court.
[104]
An
appellate court may interfere with the sentence imposed where there
are material misdirections, which vitiate the exercise of
its
discretion. In such instance, the appellate court is then entitled to
consider the question of sentence afresh. In the absence
of a
material misdirection, the appellate court may interfere with the
sentence imposed if ‘the disparity between the sentence
of the
trial court and the sentence which the appellate Court would have
imposed … is so marked that it can properly be
described as
“shocking”, “startling” or “disturbingly
inappropriate”’.
[17]
[105]
The court
a quo
found that there were no substantial
and compelling circumstances and found the personal circumstances of
the appellant without
moment. It concluded that given the nature of
the offences, there was no reason to depart from imposing the
prescribed minimum
sentence of life imprisonment. When imposing
sentence, the court
a quo
held that the appellant had ‘being found guilty of rape
committed more than once, and especially on two occasions’.
[106]
Whilst Ms Citera was correct that the court
a
quo
did not find that the appellant
acted in common purpose, I disagree with the submission that, given
this, the prescribed minimum
sentence was ten years on each count.
What the court
a quo
had
in mind was that the appellant was guilty of raping the complainant
more than once. This would mean that the applicable minimum
sentence
was that of life imprisonment, as held by the court
a
quo,
as
item
(a)
(i) of
Part 1 of Schedule 2 was applicable
.
[107]
In arriving at an appropriate sentence, I have
had regard to the personal circumstances of the appellant, that he is
a first offender
and has two children. These personal circumstances
must be considered in light of the triad of
Zinn
against the nature of the offence.
Rape is regarded by society as one of the most heinous crimes. Women
have the right to walk freely
in the streets and to feel safe in
their homes. The Supreme Court of Appeal has voiced its view that
‘
The
Courts are under a duty to send a clear message to the accused, to
other potential rapists and to the community:
We
are determined to protect the equality, dignity and freedom of all
women, and we shall show no mercy to those who seek to invade
those
rights.
’
[18]
[108]
For reasons aforementioned relating to the
conviction, the appellant raped the complainant more than once,
namely on two occasions.
I accept, having regard to the principle set
out in
Blaauw,
this
court can ameliorate the conviction by taking the sentence as one for
purposes of the individual rape counts. However, this
is not
necessary in this instance as the appellant has been convicted of one
count of rape.
[109]
The starting point is the prescribed minimum
sentence of life imprisonment. I am mindful that where violent crimes
are committed
by men against women, the prescribed minimum sentences
were enacted to abate the commission of these offences. In this
instance
I must also take into account the fact that the rapes were
committed closely in time and space.
[110]
In the result, I am of the view that the
sentence of life imprisonment imposed is disproportionate, having
regard to the nature
of the offences, the circumstances under which
they were committed, the time the accused spent in custody, and his
personal circumstances.
I am also of the view that, given the fact
that alcohol played a role in the commission of the offences, this
too must be factored
into the equation when deciding on an
appropriate sentence. I am of the considered view that a sentence of
25 years’ imprisonment
is more appropriate in the
circumstances.
Order
[111]
In the circumstances the following order will
issue:
1.
The appeal against the conviction on two counts of rape is upheld.
2.
The judgment of the court
a quo
is set aside and substituted
with the following:
‘
2.1.
The accused is found not guilty on counts 1 and 2.
2.2.
The accused is convicted on one count of rape in circumstances where
the victim was raped more than once
by the accused namely on two
occasions, as contemplated in item
(a)
(i) of Part I of
Schedule 2.’
3.
The appeal against sentence is upheld.
4.
The sentence of the court
a quo
is set aside and replaced with
the following
sentence:
‘
The accused is
sentenced to 25 years imprisonment.’
5.
Such sentence is ante-dated to 25 October 2012.
HENRIQUES
J
PP MPONTSHANA AJ
CASE
INFORMATION
Date
of Hearing:
24
May 2024
Date
of Supplementary Heads of Argument
and
written submissions:
21
June 2024
Date
of Judgment:
29
October 2024
For
Appellant:
Ms T
Citera
Legal
Aid
The
Marine Building
22
Dorothy Nyembe Street
Durban
Email:
adv.trishacitera@gmail.com
For
Respondent:
Mr D
S Magwaza
Instructed
by:
DPP
286
Pietermaritz Street
Pietermaritzburg
Tel: 033 845 4485
Email:
Dmagwaza@npa.gov.za
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 10h000 on 29 October 2024.
[1]
S
v Zinn
1969
(2) SA 537
(A) (‘
Zinn
’).
[2]
S
v Chabalala
2003
(1) SACR 134
(SCA) para 15.
[3]
R v
Mokoena
[1956]
3 All SA 208
(A) at 212-213;
S
v Sauls and others
1981
(3) SA 172
(A) at 180E F.
[4]
Monageng
v S
[2008]
ZASCA 129
; [
2009]
1 All SA 237
(SCA) paras 23-24.
[5]
Maila
v S
[2023]
ZASCA 3
paras 27-29.
[6]
S
v Vilakazi
[2016]
ZASCA 103
;
2016 (2) SACR 365
(SCA) para 15.
[7]
Section
35(3)
(a)
of
the Constitution.
[8]
S v
Blaauw
1999
(2) SACR 295
(W) at 300c-d (‘
Blaauw
’).
[9]
S v
Willemse
2011 (2) SACR 531
(ECG);
S
v Maxabaniso
2015 (2) SACR 553 (ECP).
[10]
Blaauw
at
300a-d.
[11]
S v
Delport and others
[2014]
ZASCA 197
;
2015 (1) SACR 620
(SCA) paras 33-34;
S
v Sithole and others
1999
(1) SACR 227
(T) at 229h-i.
[12]
S Terblanche (general ed)
Du
Toit: Commentary on the
Criminal Procedure Act
(RS
72, 2024) at ch14-p38.
[13]
The record at 198 and 199.
[14]
S
v Tladi
[2013]
ZASCA 85; 2013 (2) SACR 287 (SCA).
[15]
Molaza
v S
[2020]
4 All SA 167
(GJ) paras 103 and 104.
[16]
The wording of
Part 1
of Schedule 2,
prior
to the amendment by the Criminal and Related Matters Amendment Act
12 of 2021, would be applicable as the offence was committed
in
2011. Item
(a)
(i)
of Part 1 of Schedule 2, at the time when the offence was committed,
provided as follows:
‘
Rape
as contemplated in section 3 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2007:
(
a
)
when committed
(i)
in circumstances where the victim was raped more than once whether
by the accused
or by any co-perpetrator or accomplice…’
[17]
S
v Malgas
2001
(1) SACR 469
(SCA) para 12.
[18]
S v
Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 345C-D.