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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 20730/ 2023
In the matter between:
GODFREY ALFRED NTULI APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Godfrey Alfred Ntuli v The State (20730/ 23) [2025] ZASCA
53 (09 May 2025)
Coram: HUGHES , BAARTMAN and COPPIN JJA, and MUSI and
BLOEM AJJA
Heard: 10 March 2025
Delivered: 09 May 2025
Summary: Criminal law – hearsay evidence – admitted in the interest of
justice – prescribed minimum sentence – in terms of the Criminal Law
Amendment Act 105 of 1997 – error in charge sheet – fact based -enquir y –
whether accused ’s fair trial rights compromised – accused’s fair trial rights not
compromised.
ORDER
On appeal from : Gauteng Division of the High Court, Pretoria (Mavundla J
sitting as court of appeal ):
1 The appeal against the conviction and sentence on count 2 is upheld .
2 The order of the high court on count 2 is set aside and replaced with the
following:
‘1 The accused is convicted of rape in terms of s 51(2) of the Criminal
Law Amendment Act 105 of 1997 .
2 The accused is sentenced to 15 years’ imprisonment for rape.’
JUDGMENT
Baartman JA (Hughes JA concurring)
Introduction
[1] The Regional Court held in Benoni (the regional court) convicted the
appellant on one count of kidnapping and four counts of rape and sentenced him
to terms of imprisonment in respect of each count . On count 2, rape of a female
aged 14 year s1, the regional court imposed life imprisonment and gave leave to
appeal only in respect of that sentence. The Gauteng Division of the High
Court, Pretoria (the high court) , Ismail J and Hassim AJ, held that the regional
court had exceeded its sentenc ing jurisdiction ,2 it set aside the sentence and
1 Contravention of s 51(1) of the Criminal Law Amendment Act 105 of 1997 read with s 94 of the Criminal
Procedure Act 51 of 1977.
2 Hassim J held:
referred the matter to a single judge for sentence only in respect of count 2 .
Mavundla J sentenced the appellant to life imprisonment and granted leave to
appeal to this Court, in respect of both conviction and sentence on all counts .
[2] The appellant , correctly, limited his appeal to the conviction and sentence
on count 2 and abandoned the appeal in respect of all other conviction s and
sentences . This judgment is limited to the appeal on count 2, in respect of
which , the appellant’s case is that the state relied on hearsay evidence to prove
the complainant’s age. This, so the submission went, was insufficient to meet
the burden of proof upon the state, as the complainant’s age was an element of
the offence with which he had been charge d. In respect of sentence , the
appellant ’s case was that he had been charged with rape in terms of s 51(2) of
the Criminal Law Amendment Act 105 of 1997 and could therefore only be
sentenced to a minimum of 10 years’ imprisonment or 15 years’ imprisonment ,
which is the maximum sentence that the reg ional court could impose.
[3] The state conceded th e above as correct and submitted that it was in the
interest of justice to allow the hearsay evidence a s the accused ’s rights to a fair
trial had not been compromised. The appellant pleaded not guilty to the count of
rape and exercised his right to remain silen t. The state was called upon to prove
all the elements of the offence. I deal with the proceedings in the lower court s to
the extent necessary to address the two i ssues in this appeal.
[4] The complainant was 20 years old when she testified that she had been 14
years old at the time of the offence. She testified that a t approximately 17h00 on
28 January 2006, she was on her way home accompanied by her two cousins.
‘1. In respect of count 2 the sentence is se t aside as being ultra vires because the trial court did not have the
jurisdiction to impose the sentence of life.
2. The matter is remitted to a single judge of this division in order to determi ne an appropriate sentence in
respect of count 2 . . .’.
The appellant accosted them and dragged her off at gunpoint to a house where
he raped her in the backyard. Thereafter, he took her to a church in the same
street , raped her again and lef t her on the church premises. She sought help at
the church house where the occupants contacted her family. The latter took her
to the police station where officers advised them to return the next day and for
her not to bath in the interim. The appellant w as a stranger to her and she had
not consented to intercourse with him.
[5] The complainant’s cousin, M[...] M[...] (Mr M[...] ) testified that he was
17 years old at the time of the offence . The complainant and he had waited
outside a tavern for their older cousin while someone older went in to call him.
Mr M[...] said that he and the complainant were under age and could not enter
the tavern . Their older cousin joined them and on their way h ome, the appellant
accosted them and dragged the complainant off at gunpoint.
[6] Anna Martha Mabunda (Ms Mabunda), a registered nurse, by profession
a midwife, a sexual offences care practitioner and a clinician , testified that she
had 23 years’ experie nce as a nurse. On 29 January 2006, she examined the
complainant and completed the J88 form on which she recorded that the
complainant was 14 years old at the time , with date of birth 4 February 1991.
Further, th at she had started menstruating at age 14.
[7] The appellant testified that he had known the complainant as ‘She was a
child who like d to go jiving. . . I did not know as to what her age was, because
she was a person you would find at drinking places and as the case was she was
present at Mohweni on that day’ . He confirmed that the intercourse took place
outside and that he knew the complainant was a child but insisted that he did not
know her actual age.
[8] It was common cause that the appellant wa s charge d with the rape of a
14 year old female read with the provisions of s 51(2) instead of s 51(1) of the
Criminal Law Amendment Act . It was further common cause that s 51(2)
provide s for a prescribed minimum sentence of 10 years’ imprisonment.
[9] The regional magistrate found no substantial and compelling
circumstances present and sentenced the appellant to life imprisonment.
Mavundla J imposed the same sentence but, as indicated above , gave leave to
appeal to this Court .
Discussion
[10] The appellant placed all the elements of the offence in dispute. The state
was called upon to adduce evidence of the complainant’s age . It sought to meet
that burden by leading the complainant who testified when she was 20 years old
and said that she was ‘14 years old going 15’ when the incident had occurred.
Although that was hearsay evidence the state did not make application for its
admiss ion in terms of s 3(1) of the Law of Evidence Amendment Act , 45 of
19883. It is in issue whether the regional court erred by relying on the hearsay
evidence.
3 ‘Section 3(1) hearsay evidence
(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or
civil proceedings, unless -
(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such
proceedings;
(b) the person upon whose credibil ity the probative value of such evidence depends, himself testifies at such
proceedings; or
(c) the court, ha ving regard to -
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the pr obative value of such
evidence depends;
(vi) any prejudice to a party which the admission of such evide nce might entail; and
(vii) any other factor which should in the opinion of the court be taken into ac count,
is of the opinion that such evidence should be admitted in the interests of justice.’
[11] The appellant , who was legally represented , did not object to the
hearsay
evidence or to the mistake in the charge sheet before the regional court. Instead,
his legal representative indicated that he had been warned about the
applicability of a minimum se ntence of life imprisonment. In the high court, the
appellant raised the defences for the first time. In R v Hepworth4, this Court
held:
‘. . . A criminal trial is not a game where one side is entitled to claim the benefit of a ny
omission or mistake made by the other side . . .’.5
[12] In S v Ndlo vu and Others6, this Court held that the state must apply for
the admission of hearsay evidence before closure of its case and the court must
make a ruling before the end of the state’s case to afford the accused the
opportunity to consider properly whether to testify. Th is Court also referred
with approval to S v Ramavhale7 where hearsay evidence had been led despite
the prosecutor warning the witness not to testify about the hearsay evidence.
The state unequivocally indicated that it did not want to rely on the hearsay
evidence. The accused closed his case. However, in argument , the state sought
to rely on the hearsay evidence. This Court conclude d as follow s ‘. . . Ramavhale
makes clear that unless the State obtains a ruling on the admissibility of the hearsay evidence
before closing its case, so that the accused knows what the State case is, he or she cannot
thereafter be criticised on the basis of the hearsay averments for failing to testify. It also
suggests, rightly, that unless the court rules the hearsay admissible before the State closes its
case, fairness to the accused may dictate that the evidence not be received at all . (This does
not preclude the State in an approp riate case from apply ing to re -open its case.)’8 (My
emphasis.)
4 R v Hepworth 1928 AD 265.
5 At 277.
6 S v Ndlovu and O thers [2002] 3 All SA 760 (SCA); 2002 (6) SA 305 (SCA); 2002 (2) SACR 325 (SCA) para
18.
7 S v Ramavhale 1996 (1) SACR 639 (A).
8 S v Ndlovu and Others para 19( b) at 338.
[13] Nevertheless, this Court in S v Ndlovu and Others accepted that no
impropriety had arisen where hearsay evidence from a co -accused had been
admitted against two other accused . Because the trial court had ruled on the
admissibility of the hearsay evidence before the state closed its case and the
accused had elected to testify even though the trial cou rt’s reasons and the
weight it attached to the hearsay evidence were only given at the end of the
case. This Court held further that where the hearsay evidence is provisional ly
admitted and the declarant upon whose credibility the probative value of such
evidence depends does not testify , disavows his statement, or fails to recall
making it , the enquiry is whether the interest s of justice nevertheless require the
admission of the evidence .
[14] This Court further s aid the following about the interest of justice:
‘The suggestion that the prejudice in question might include the disadvantage ensuing from
the hearsay being accorded its just evidential weight once admitted must however be
discountenanced. A just verdict, based on evidence admitted because the interest of justice
require it, cannot constitute ‘prejudice’. In the present case, …Where the interest of justice
require the admission of hearsay, the resultant strengthening of the opposing case cannot
count as pr ejudice for statutory purposes, since in weighing the interest of justice the court
must already have concluded that the reliability of the evidence is such that its admission is
necessary and justified. If these requisites are fulfilled, the very fact tha t the hearsay
justifiably strengthens the proponent’s case warrants its admission, since its omission would
run counter to the interest of justice.’9
[15] In S v Litako and Others10 Navsa and Ponnan JJA reconsidered the
applicable legal principles in S v Ndhlovu and Others with specific reference to
extra –curial admission of one accused not admissible against another . This
Court considered the rationale at common law for excluding the use of extra -
9 Para 50.
10 S v Litako and Others [2014] ZASCA 54; [2014] 3 All SA 138 (SCA); 2014 (2) SACR 4 31 (SCA); 2015 (3)
SA 287 (SCA). See also the most recent Constitutional Court case confirming the principles in res pect of the
interest of justice: Kapa v S [2023] ZACC 1; 2023 (4) BCLR 370 (CC); 2023 (1) SACR 583 (CC).
curial admissions by one accused against another and found that it appears that
the interest of justice is best served by not invoking the Act for that purpose.
This Court concluded that our system of criminal justice , underpinned by the
constitutional values and principles that have, as their objective, a fair trial for
accused persons, the extra -curial admission of one accused does not constitute
evidence against a co -accused and is therefore inadmissible against such co -
accused. However, t his Court reaffirmed the approach in relation to the
reception of hearsay evid ence in general.11
[16] In the circumstances of this matter, the following is relevant to the
enquiry into whether it is in the interest of justice to allow the hearsay evidence :
These are criminal proceedings . The nature of the proceedings militates against
the admission of the hearsay evidence. The accused was legally represented at
the trial by the same representative . He was informed in the charge sheet that
the state had allege d that the complainant was 14 y ears old at the time of the
commission of the offence .
[17] The complainant testified about her age without any objection from the
defence. The day after the incident, Ms Mabunda who conducted the medical
examination, record ed the date of birth as 4 February 1991 and that the
complainant had started to menstruate at age 14 years old. I accept that the
complainant had an interest in the outcome of the criminal proceedings. In the
circumstances of this matter the risk of insincerity o n her part is greatly reduced.
It is incomprehensible that t he complainant knew the significance of her age in
relation to the minimum sentence regime the day after she was raped.
[18] The regional court made favourable credibility findings in favour of the
complainant , the record bears out the correctness of those findings and points to
11 See Litako paras 70 -71.
the reliability of her evidence.12 The state could have proved the complainant’s
age by leading the evidence of her mother or someone who was present at her
birth or by the production of her birth certificate. There is no explanation why
the state did not employ any of these mundane routes. Instead, the state
displayed unfortunate ineptitude in the presentation of the complainant’s case.
However, this case is distinguishable from Lubando v S13 where the
complainant was 11 years old when she testified and was contradicted by her
mother about the circumstance s of the alleged rape.
[19] In this matter sexual intercourse was common cause , and the appellant
admitted that he knew it was unlawful for him to have had intercourse with her
as she was a minor. The state relied on the complainant’s age to bring the
offence within the ambit of the minimum sentence regime , but inexplicably
failed to comply with the ordinary rules of evidence. However, the accused
knew the import of the complainant’s age and directed his defence to it. He
testified with a clear understa nding of the case against him as is evident from
the following cross -examination exchange between him and the prosecutor:
‘Prosecutor : Why would you refer to her as a child?
Accused : If you can go at Mabaso’ s Place you will see that at the end of the day, I am not
saying this because I am in court. You will find the little ones that are there at these places
and 0 3h:00 will strike they are still there.
Prosecutor : Alright, the l ittle ones that just confirme d what am I thinking . You knew she
was a child did you not Sir?
Accused : Yes, but I did not know as to what her age was.
12 ‘As far as the complainant of the first count is concerned, I experienced her evidence to be given in a logical,
chronological manner. At this point going through her evidence meticulously, I could not find any material
contradictions where she contradicted herself. She also did not contradict the witness that was called to support
her evidence, Mr M[...] . I furthermore could also not fin d any improbabilities in her version.’ (vol 1 pg 168 -
169.)
13 Lubando v S (347/2015) [2016] ZASCA 4; 2016 (2) SACR 160 (SCA) (1 March 2016).
Prosecutor : But if you refer to ‘’little ones ’’ and ‘’child ’’ what do you expect us to think?
Accused : A person if even that person could be 20 in relation to me I am an adult, I am 40
that person will remain a child. Even though we drink together, even though we sleep
together’ .
[20] In addition , in cross -examination of the complainant, the appellant’s
counsel put the following to her:
‘The accused will say, and these are my instructions, that although he knows it is against the
law to have sex with a minor, that he and you did have sex and that it was consensual. He
never forced you at gunpoint or in an y other manner to have sex with him.’
It follows that it was common cause that the appellant had sexual intercourse
with the complainant to whom he referred as a minor. It is opportunistic for the
appellant to complain about hearsay evidence in these circ umstances.
[21] The appellant acquiesced in the admission of the hearsay evidence. In
addition, it is in the interest of justice to allow th e hearsay evidence of the
complainant that she was 14 years old at the time of the offence , incidentally,
also when she started menstruating according to the medical report, J88 form .
[22] I turn to the second issue in this appeal, whether the reference in the
charge sheet to s 51(2) instead of s 51(1) limited the minimum sentence that
could be imposed to 10 years ’ imprisonment. An accused has the right to be
informed of the charge he is facing with sufficient particularity to enable him or
her to answer it. Th at accords with an accused person’s Constitutional right to a
fair trial.14 Errors or omissions in the charge sheet may impact on the accused’s
fair trial right. However, no error or omission in the charge sheet, per se,
impacts the accused’s right to a fair trial. The court is required to make a fact -
based enq uiry considering the entire trial record before concluding whether the
14 Section 35(3)( a) of the Constitution of the Republic of South Af rica 108 of 1996.
accused’s fair trial rights ha ve been compromised. Ponnan JA, writing for the
minority in S v Mashinini and Another15, said the following:
‘I have been at pains to stress, as enjoined by the authorities to which I have referred, that a
fair-trial enquiry does not occur in vacuo, but that it is first and foremost a fact-based enquiry.
And, as I have already stated, any conclusion as may be arri ved at requires a vigilant
examination of all the relevant circumstances . . .’.16
[23] The above minority view relied on S v Ndlovu17, where this Court held
that:
‘The enquiry, therefore, is whether, on a vigilant examination of the relevant circumstances,
it can be said that an accused had had a fair trial. And I think it is implicit in these
observations that where the state intends to rely upon the sentencing regime created by the
Act a fair trial will generally demand that its intention pertinently be brought to the attention
of the accused at the onset of the trial, if not in the charge -sheet then in some other form, so
that the accu sed is placed in a position to appreciate properly in good time the charge that he
faces as well as its possible consequences . . .’.18
[24] In S v Kolea19, this Court unanimously endorsed the minority position
as follows:
‘A close investigation of the circumstances in Mashinini reveals that s 51(2) of the Act was
erroneously typed instead of s 51(1) of the Act; that the appellants were correctly apprised of
the applicability of the increase penalty provisions of the Act; that they pleaded guilty to a
charge involving multiple rape which, in any event, is not even applicable to s 51(2); that
they never complained of, nor showed that they had suffered, any pre judice; and that they
participated fully in the trial. In view of what I have said above , I believe that the appellants
in that case were not in any way prejudiced by the erroneous reference to s 51(2) instead of s
51(1) in the charge -sheet. I am therefore satisfied that the conclusion at which the majority
arrived in Mashinini was clearly wrong.Finally, it must always be borne in mind that the
15 S v Mashinini and Another 2012 (1) SACR 604 (SCA) .
16 Para 51.
17 S v Ndlovu 2003 (1) SACR 331 (SCA) ; [2003] 1 All SA 66 (SCA).
18 Para 12.
19 S v Kolea 2013 (1) SACR 409 (SCA).
concept of fairness connotes fairness to both the accused and the complainant, or the public
as represented by the state…’20
[25] This Court relied on S v Jaipal21 where the Constitutional Court held
that:
‘The right of an accused to a fair trial requires fairness to the accused, as well as fairness to
the public as represented by the State. It h as to instil confidence in the criminal justice system
with the public, including those close to the accused, as well as those distress by the audacity
and horror of crime.’22
[26] Applying the above test to the trial proceedings in this matter, the
following is apparent: The appellan t was charged with rape of a 14 year old
female and made aware that the state intended to rely on the minimum sentence
regime. On 29 November 2010, when he was still unrepresented, his rights to
legal representation were explained a s well as ‘Act 105/97’ the minimum
sentence regime. He was legally represented when he pleaded not guilty and
chose not to disclose the basis of his defence. However, the appellant’s version
put to the state witnesses was that he had consensual sex with a minor while not
knowing how old she was. He referred to the complainant as a child. Thus, his
defence was directed at the allegations in the charge sheet that attract ed life
imprisonment.
[27] Despite the shortcoming s in the charge sheet and the regional court
referring to s 51(2) in convicting the appellant, the appellant’s counsel
unequivocally stated that he was aware that the charge attracted life
imprisonment and that he had been so ‘notified’ , it bears repeating:
‘…it is submitted and it is agreed that all the offences of which the accused person was
convicted are very serious offences such that the legislator imposed minimum sentences . . . I
20 Paras 19 and 20.
21 S v Jaipal 2005 (1) SACR 215 (CC) ; 2005 (4) SA 581 (CC) ; 2005 (5) BCLR 423 (CC) .
22 Para 29.
mean the accused was notified and it is common cause that as far as count 2 is concerned that
there is in fact a minimum sentence of life to be imposed by this court, unless there are
substantial and compelling circumstances to show . . . why this court should deviate from the
minimum sentence in this matter. ’
[28] The appellant is content to rely on the mistake in the cha rge sheet and
the allegation that the charge sheet does not indicate when he became aware that
he faced life imprisonment without saying when he became aware. I have
indicated above that the appellant, correctly in my view, abandoned his appeal
in respect of the other four convictions and sentences against him. C ount 1 was
kidnapping of the 14 year old complainant in count 2. By implication , the
consensual sex def ence was abandoned. The mistake in the charge sheet with
reference to s 51(2) instead of s 51(1) was the only remaining straw to clutch at.
That opportunist sta nce cannot a ssist him; a criminal trial is not a game.
[29] In the circumstances of this matter, the reference to the wrong section of
the Act did not prejudice the appellant so that his right to a fair trial was
compromised. The appellant’s personal circumstances were placed before
Mavundla J and duly considered. However, the aggravating circumstances far
outweighed the mitigating circumstances. The complainant was a child,
abducted at gunpoint , raped twice and left at night to find her way home. That
was her first sexual experience. Despite th e high incidence of these offences and
the harsh sentences imposed , the tide is not being turned. The enhanced penalty
introduced in the minimum sentence regime did not change the offence of rape
nor did it limit the trial court’s jurisdiction.23 A court of appeal has limited
scope to interfere in the sentencing court ’s exercise of its discretion when
imposing sentence. I am unable to fault Mavundla J’s exercise of his discretion,
theref ore, this Court cannot interfere .
23 S v Kekan a [2018] ZASCA 148; 2019 (1) SACR 1 (SCA); 2019 1 ALL SA 67 (SCA) paras 23 -24.
[30] However, it remains lamentable that these errors still sneak into charge
sheets. Complainants in gender -based violen t offences are routinely being let
down by inattentive drafting. I would dismiss the appeal against conviction and
sentence in respect of count 2.
The order
[31] The appeal against conviction and sentence is dismissed.
_____________________
BAARTMAN
JUDGE OF APPEAL
Bloem AJA ( Coppin JA and Musi AJ concurring)
[32] I have had the benefit of reading the judgment of my colleague,
Baartman JA (the first judgment). For the reasons set out hereunder, I cannot
agree that the conviction and sentence in respect of count 2 should be
confirmed.
[33] The appellant faced four charges in the regional court sitting at Benoni
(the trial court). On count 1, he was charged with kidnapping. On count 2, he
was charged with rape in that upon or about 29 January 2006 he unlawfully,
intentionally and without her consent had sexual interc ourse with the
complainant ‘aged 14 years old at the time’. The complainants in counts 1 and 2
is the same person. The incidents were alleged to have occurred on the same
date. On count 3, it was alleged that on 12 July 2009 he raped another woman.
On coun t 4, it was alleged that on 7 December 2007 he raped another woman.
On count 5, it was alleged that on 29 March 2010 he raped another woman. All
the offences were alleged to have been committed at Daveyton, Gauteng.
[34] Despite his plea of not guilty, th e regional magistrate convicted the
appellant on all the counts, as charged. In respect of count 1, being kidnapping,
he was sentenced to five years’ imprisonment. In respect of count 2, being the
rape of a girl who was allegedly 14 years old, he was sente nced to
imprisonment for life. He was sentenced to ten years’ imprisonment on each of
counts three, four and five, being rape.
[35] The appellant applied for leave to appeal against those convictions and
sentences. He was granted leave to appeal to the h igh court only against the
sentences. On 5 December 2013 the high court set aside the sentence of
imprisonment for life (count 2) and remitted the matter to a single judge for
sentencing in respect of that count. On 27 October 2014 Mavundla J confirmed
the appellant’s conviction and imposed a sentence of imprisonment for life on
the appellant in respect of count two. The circumstances under which the high
court heard the matter are set out in paragraph one of the first judgment.
[36] Before Mavundla J deal t with the limited issue of the appellant’s
conviction and sentence of imprisonment for life in respect of count 2, he was
called upon to determine two issues. The first issue was whether the state could
rely on the provisions of s 51(1) of the Criminal La w Amendment Act 105 of
1997 (read with s 94 of the Criminal Procedure Act 51 of 1977), when reference
was made in the charge sheet to s 51(2), to which the appellant pleaded and
under which he was convicted. The second issue was whether the state proved
beyond reasonable doubt that the complainant was under the age of 16 years24
24 Prior to the amendment of the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 , an
accused who was convicted of rape ‘where the victim was under 16 years ’ was, in terms of Part 1 of Schedule 2,
as read with s 51(1) of the Criminal Law Amendment Act 105 of 1997, mandated to be sentenced to
imprisonment for life , absent a finding of the existence of substantial and compelling circumstances justifying a
lesser sentence . In so far as it is relevant to this case, on 16 December 2007, s 68 of the Criminal Law (Sexual
Offences and Related Matters) Act 32 of 2007 amended Schedule 2 of the Criminal Law Amendment Act by
when she was raped. Mavundla J decided both issues in favour of the state. The
appeal against the sentence of imprisonment for life was thereafter dismissed.
On 27 October 2014, Mavundla J granted the appellant leave to appeal to this
Court in respect of his convictions and sentences on all counts.
[37] It is unnecessary to decide whether it was permissible for Mavundla J to
grant leave to appeal in respect of conviction and sentence in respect of all the
counts, when he was required to only determine an appropriate sentence in
respect of the appellant’s conviction on count 2. This is because, at the hearing
in this Court, the appellant confined his appeal to his conviction and sentence on
count 2, having abandoned his appeal against the convictions and s entences in
respect of the other counts.
[38] In terms of s 51(1) a court ‘shall sentence a person it has convicted of an
offence referred to in Part 1 of Schedule 2 to imprisonment for life’, subject to
ss 51(3) and (6). Those subsections read as follow s:
‘(3) (a) If any court referred to in subsection (1) or (2) is satisfied that substantial and
compelling circumstances exist which justify the imposition of a lesser sentence than the
sentence prescribed in those subsections, it shall enter those circums tances on the record of
the proceedings and must thereupon impose such lesser sentence: Provided that if a regional
court imposes such a lesser sentence in respect of an offence referred to Part 1 of Schedule 2,
it shall have jurisdiction to impose a term of imprisonment for a period not exceeding 30
years.
(aA) When imposing a sentence in respect of the offence of rape the following shall not
constitute substantial and compelling circumstances justifying the imposition of a lesser
sentence:
(i) the compl ainant's previous sexual history;
making the prescribed minimum sen tence of imprisonment for life a possibility where the victim is under the
age of 18 years. It means that, to make the prescribed minimum sentencing regime applicable to the facts of this
case, the state was required to prove that the complainant was under the age of 16 years when the appellant
raped her on 29 January 2006.
(ii) an apparent lack of physical injury to the complainant;
(iii) an accused person's cultural or religious beliefs about rape; or
(iv) any relationship between the accused person and the complainant prior to the of fence
being committed.”
(4) . . .
(5) . . .
(6) This section does not apply in respect of an accused person who was under the age of 18
years at the time of the commission of an offence contemplated in subsection (1) or (2).’
[39] Rape, where the victim is a person under the age of 16 years, is an
offence referred to in Part 1 of Schedule 2. Section 51(2) makes provision for
the imposition of sentences of imprisonment between three and 25 years for
persons who have been convicted of offences referred in Parts II to V of
Schedule 2. The Criminal Law Amendment Act ordains that, where an accused
has been convicted of an offence referred to in Part 1 of Schedule 2, he shall be
sentenced to imprisonment for life, subject to ss 51(3) and ( 6). On the other
hand, a sentence of imprisonment for life is impermissible where an accused has
been convicted of an offence referred to in Parts II to V in Schedule 2. It is
accordingly important for the state to correctly inform an accused whether it
would rely on s 51(1) or (2) of the Criminal Law Amendment Act. The
difference between the subsections is imprisonment up to 30 years, as against
imprisonment for life.
[40] In terms of s 51(1), in the absence of substantial and compelling
circumstances, a court shall sentence ‘a person it has convicted of an offence
referred to in Part I of Schedule 2 to imprisonment for life’. The appellant was
not convicted of an offence referred to in Part I of Schedule 2. He was charged
under the provisions of s 51(2), pleaded not guilty to that charge and was
convicted under the provisions of s 51(2). Rape, where the victim is under the
age of 16 years, is an offence referred to in Part I of Schedule 2. For the
appellant to have been convicted under s 51(1), his convic tion should have
encompassed all the elements of the offence referred to in Part I of Schedule 2.
As pointed out more fully hereunder, the state failed to prove one essential
element in that regard, namely, that the complainant was under the age of 16
years when she was raped. Since the appellant was convicted under the
provisions of s 51(2), it would be unfair to sentence him under the provisions of
s 51(1).25 In the circumstances, the appellant cannot be sentenced as if he
committed an offence under s 51(1). He must be sentenced because he was
convicted of having committed an offence under s 51(2).
[41] The remaining issue is whether the state proved beyond reasonable doubt
that the complainant was under the age of 16 years when she was raped. A
finding in that regard has significant consequences for the appellant. If the state
proved that the complainant was indeed under the age of 16 years when the
appellan t raped her and if the trial court and the high court were not satisfied
that substantial and compelling circumstances existed which justified the
imposition of a lesser sentence, he was correctly sentenced to imprisonment for
life. If she was over the age of 16 years when the appellant raped her, a sentence
of imprisonment for life would have been inappropriate in the regional court .
[42] It was submitted on behalf of the appellant that the state failed to prove
that the complainant was under the age of 1 6 years when the appellant raped
her. The state submitted that it adduced sufficient evidence to prove that the
complainant was 14 years of age when the appellant raped her. For that
submission, the state relied on the complainant’s evidence. She testified on 12
July 2011 that she was 20 years old and that during 2006, she ‘was 14 [and]
about to turn 15’. The state also relied on the evidence of Anna Mabunda, a
registered professional nurse, midwife and sexual assault care practitioner. She
25 S v Legoa 2003 (1) SACR 13 (SCA) paras 13, 14 and 27.
examined the com plainant on 29 January 2006. During or after the examination
she completed a medical report of her examination on the complainant. Of
importance for present purposes is that she noted the name of the complainant
and 4 February 1991 as the date when she wa s allegedly born. Ms Mabunda did
not testify from where she obtained the information regarding the complainant’s
date of birth. The only reasonable explanation is that she obtained that
information from the complainant.
[43] Ms Mabunda testified that her physical examination of the complainant
revealed inter alia that there were no physical injuries, that she started
menstruating at the age of 14 years, that she has not been pregnant before, and
that her tanner stage was three . Based on the history that the complainant had
provided and her examination of the complainant, Ms Mabunda concluded ‘that
the injuries sustained gynaecologically were consistent with penetration. The
anal examination excluded any injuries.’ The medical r eport deals with the
gynaecological and anal examination, obviously to determine whether there
were any signs that the complainant had been penetrated. Ms Mabunda did not
testify that she examined the complainant to establish or estimate her age. Based
on the evidence of the complainant and Ms Mabunda, the state contended that it
had proved beyond reasonable doubt that the complainant was born on the date
as she testified, and that she was 14 years old when she was raped.
[44] In R v C26 it was held that a statement by a person as to the date when
he or she was born is hearsay evidence. That must be correct because such a
person, although present at birth, is unable to testify as to the veracity of the
occurrence when he o r she was born. The first judgment accepts that the
complainant’s evidence as to the date of her birth is hearsay evidence.27 The
26 R v C 1955 (1) 380 (CPD) at 381G.
27 See para 10 of the judgment.
Constitutional Court had the following to say about hearsay evidence and the
circumstances under which such evidence may be admitted:
‘Hearsay evidence is inadmissible, unless the court is of the opinion that it is in the interests
of justice for it to be admitted, taking into account the factors referred to in s 3(1) (c)(i)-(vii).
The SCA in Ndhlovu held that s 3(1)( c)’s criteria - which must be ‘’interpreted in accordance
with the values of the Constitution and the norms of the objective value system it embodies’’
– protect against the unregulated admission of hearsay ev idence and thereby sufficiently
guard the rights of accused.’28
[45] Section 3 of the Law of Evidence Amendment Act 45 of 1988 has been
quoted in footnote 3 of the first judg ment and will not be repeated herein. The
starting point is that hearsay evidence is in admissible. Section 3(1) provides
that hearsay evidence shall not be admitted as evidence at criminal or civil
proceedings unless the provisions of s 3(1)( a), (b) or ( c) have been complied
with. At the trial, the state did not seek to have the hearsay evidence admitted in
terms of the provisions of s 3(1) of the Law of Evidence Amendment Act. That
should be the end of the matter as to whether the state proved the complainant’s
date of birth.
[46] Before us, the state contended that the hearsay evidence should be
admitted in the interests of justice. The first judgment found that it is in the
interests of justice to allow the hearsay evidence regarding the complain ant’s
age as the appellant had acquiesced in the admission of that hearsay evidence.
The concept of ‘the interest of justice’ is not free standing. A trial court can only
come to the opinion whether hearsay evidence should be admitted in the
interests of j ustice after having taken into account the factors referred to in s
3(1)(c)(i)-(vii) of the Law of Evidence Amendment Act, lest such admission is
unregulated. The trial court had no regard to s 3(1) (c).
28 S v Kapa [2023] ZACC 1; 2023 (4) BCLR 370 (CC); 2023 (1) SACR 583 (CC) para 32.
[47] Where the state seeks the admission of hearsay evidence, the trial court
must be asked clearly and timeously to consider and rule on the admissibility of
the hearsay evidence. If the hearsay evidence is presented during the state case,
the trial court must rule on whether the hearsay evidence should be admitted
before the state closes its case. A ruling at that stage will enable the accused to
appreciate the full evidentiary ambit he or she faces. In other words, the accused
must know before he or she testi fies, whether he or she must also deal with the
hearsay evidence in his or her own evidence. The trial court cannot be asked for
the first time at the end of the trial to admit hearsay evidence. In S v Ramavhale
the hearsay evidence was admitted by the tri al court only in the judgment when
the accused was found guilty on a piece of hearsay evidence by a State witness
as to what the deceased had said.29 This Court described the admission of
hearsay at that stage ‘a particularly serious i rregularity, which had the effect, I
regret to say, that the appellant had a less than fair trial’.30 In S v Ndhlovu and
others it was held that a request for the admission of hearsay evidence cannot be
made on appeal.31
[48] One of the factors which the first judgment considered when
determining whether the trial and high courts correctly admitted the hearsay
evidence, was the failure of the appellant, who was throughout the trial legally
represented, to object to the fact that the complainant and Ms Mabunda gave
hearsay evidence.32 That situation presented itself in R v C . In that case it was an
essential element of the offence with which the accused was charged that the
complainant should be under the age of 16 years. The state argued that the
accused’s failure in that case to dispute the complainant’s evidence regarding
her alleged date of birth must be regarded as a tacit admission by the accused of
29 Ramavhale at 651 G.
30 Ramavhale at 651 H-J
31 Ndhlovu and Others para 18.
32 See para s 11 and 21 of the judgment.
the complainant’ s age, as alleged by the state in the charge sheet and as deposed
to by her in evidence. The court did not sustain that argument, as the
complainant’s evidence as to her age was hearsay and that it was not incumbent
upon the accused to challenge hearsay ev idence. Reference was made to R v K33
wherein van Blerk AJ stated that it is difficult to comprehend how an accused’ s
failure to challenge inadmissible evidence adduced by the state can, without
further ado, become admissible evidence.
[49] In Ndhlovu this court reiterated what was held in Ramavhale , namely
that an accused cannot be criticised for not testifying and d ealing with hearsay
evidence, when the state failed to obtain a ruling on the admissibility of hearsay
evidence before closing its case.34 In this case, the trial court allowed the
hearsay evidence at the time of the judgmen t when the appellant was convicted,
as if it was admissible, even although there was also no application by the state
to re-open its case to lead admissible evidence regarding the complainant’s date
of birth. In the circumstances, I cannot agree with the f irst judgment that, by not
challenging the hearsay evidence, that evidence became admissible, or that the
appellant acquiesced in its admission.
[50] The appellant’s attorney put to the complainant that, although the
appellant knew that it was against the law to have sex with a minor, he had
consensual sexual intercourse with her. The appellant testified that he ‘did not
know as to what [the complainant’s] age was, because she was a person you
would find at drinking places and as the case was she was also present at
Mohweni [Tavern] on that day’. At a later stage, he testified that although he
knew that she was a child, he ‘did not know as to what her age was’.
33 Rex v K 1951 (3) SA 180 (SWA) at 183.
34 Ndhlovu and Others para 19(b).
[51] A child is a person under the age of 18 years in terms of s 28(3) of the
Constitution and th e Children’s Act.35 In this case, regard being had to the
appellant’s undisputed evidence that he did not know the complainant’s age and
that she attended ‘drinking places’, it is not far-fetched that he might have
laboured under the impression that she was over the age of 16 years but under
the age of 18 years when the appellant raped her. It means that in either case,
she was still a child. In this regard, it must be remembered that t he trial court
rejected the appellant’s version that he was in a relationship with the
complainant and accepted the complainant’s evidence that he was a stranger to
her. The rejection of the appellant’s evidence in that regard does not mean that
it is not reasonable that he might have believed that the complainant was under
the age of 18 years when he raped her.
[52] In all the circumstances, the failure on the part of the state to seek a
ruling before the close of its case that the hearsay evidence regarding the
complainant’s date of birth be admitted, means that the evidence of the
complainant and Ms Mabunda remained inadmissible. The state accordingly
failed to prove an essential element for its reliance on the provisions of s 51(1)
of the Criminal Law Amendment Act. In the result, the trial court and the high
court erred when they it imposed a sentence of imprisonme nt for life on the
appellant on the basis that he had raped a girl under the age of 16 years. The
sentence of imprisonment for life must accordingly be set aside and replaced
with an appropriate sentence.
[53] I have had regard to the fact that the appell ant raped the complainant
at gunpoint, that she had not indulged in sexual activity before the incident in
question, and that he claimed that he had sexual intercourse with her consent. I
have also considered how the courts have described rape and its effe cts on the
35 See the definition of ‘child’ in s 1 of the Children’s Act 38 of 2005 .
victim and his or her family.36 Members of society expect the courts to treat
rapists sternly, in view of the prevalence of that offence. The appellant’s
personal circumstances must recede to the background, because he faces a long
period of imprisonment.37 The facts of this case show that he is a danger to
society, especially women. I am of the view that a sentence of 15 years’
imprisonment, which is the maximum term of imprisonment which the regional
court could impose at that stage, on count 2 will do justice to the offence, the
appellant and the interests of society.
[54] For the sake of clarity and certainty, the appellant has been convicted
on all counts. The appeal against sentence on count 2 is successful. The
sentences in respect of the other counts remain the same, even the order that the
sentence on count 1 run concurrently with the ‘new’ sentence on count 2. The
effect is that the appellant has been sentenced to 45 years’ imprisonment.
[55] In the result, it is ordered that:
1 The appeal against the conviction and sentence on count 2 is upheld .
2 The order of the high court on count 2 is set aside and replaced with the
following:
‘1 The accused is convicted of rape in terms of s 51(2) of the Criminal
Law Amendment Act 105 of 1997 .
2 The accused is sentenced to 15 years’ imprisonment for rape.’
36 S v Chapman 1997 (2) SACR 3 (SCA) at 5b and S v SMM 2013 (2) SACR 292 (SCA) at 299a -b.
37 S v Matyityi 2011 (1) SACR 40 (SCA) at para 23.
_____________________
G H BLOEM
ACTING JUDGE OF
APPEAL
Appearances:
For the appellant: F Van As
Instructed by: Legal Aid South Africa, Pretoria
Legal Aid South Africa, Bloemfontein
For the respondent: M J Makgwatha
Instructed by: Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein