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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)







Case No: A107 /2023

In the matter between: -

HANSRAJ, KISHAN RAI Appellant

and

THE STATE Respondent


JUDGMENT


ALLEN AJ (MAKAMU J concurring): (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.

SIGNATURE DATE: 19 MARCH 2025
I' 7
l _J

INTRODUCTION

[1] The appellant was convicted in the regional court s itting at Randfontein in the
Regional Division of Gauteng on one count of sexual assault.1 The appellant was
legally represented throughout the trial. Appellant pleaded not guilty to the charge
and did not give a plea explanation. The appellant was found guilty on 6 December
2021 and sentenced on 14 October 2022 to 36 months imprisonment in term s of
section 276(1) (h) of The Criminal Procedure Act, Act 51 of 1977 (CPA).

[2] The parties filed heads of argument and noteworthy the appellant’s head s of
argument consist ed of 101 pages without referring to any case law. No case law was
filed separately either. We were referred to one case a t the hearing and during
appellant’s argument . Appellant was unable to hand up copies and was requested to
upload same on Caselines. The case was not uploaded either.

BACKGROUND

[3] The state brought an application in terms of section 170A of the C PA to make
use of CCTV since three of the state witnesses were minors. The application was
granted unopposed and proceedings proceeded in camera.

[4] It was common cause at the trial of the main issue in disput e, the question of
touching and consent, whether appellant did indeed commit an act of sexual assault
as convicted.

[5] The common cause facts are:


1 That the accused is guilty of the crime of Contravening the Provisions of section 5(1) read with
sections 1, 2, 50, 56(1), 56A, 57, 58, 59, 60 and 61 of the Criminal Law Amendment Act (Sexual
Offences and Related Matters) Amendment Act, Act 32 of 2007 -Sexual Assault . In that on or about
the 6 February 2019 at or ne ar Randfontein High School in the Regional Division of Gauteng the said
accused did unlawfully and intentionally sexually violate the complainant, to wit A […] A[…] (15 years
old) by touching his hand on her bum and/or by placing/holding his hand on her bum and touching his
hand on her breast.
1 On 6 February 2019 the complainant was attending grade 10 at a High
School on the West Rand , 15 years of age, and she was present in
appellant’s classroom, room 10, during the 6th and 7th period when the
incident occurred. Appellant taught CAT (computer application technology).

2 Appellant got angry with complainant and two of her classmates , also
witnesses a t the trial , for being noisy in his class, whereafter he moved one J
to the front. Complainant and K remained seated at the back of the class.

3 Appellant called complainant out of the class and once outside , he
asked her to take a walk with him . The parties walked past various
classrooms and offices whilst he discussed her transport issue with her.

4 They walked up the stairs to the staff room where he drank water and
they then proceeded to the media cent re. The parties hereafter went back to
the classroom and was away for about 15 minutes.

5 Complainant and J made written statements shortly hereafter (about
two hours later) to the deputy headmaster . These statements do not form part
of the list of exhibits and at the hearing counsel was unable to en lighten the
court why appellant did not disclose same.

6 Appellant attended a disciplinary hearing and, save for mentioning that
there was a hearing, nothing was discovered.

GROUNDS OF APPEAL

[6] The grounds for the appeal relied upon are the reasons as set out in
appellant’s application for leave to appeal:

1.1 It over emphasized that the Appellant/Applicant decided to request the
complainant to accompany him to the personnel r oom which was clearly
indicative of his guilt;

1.2 In finding that the evidence of the complainant was the truth and that
there were no contradictions in the complaint’s evidence;

1.3 In not finding that the evidence of the first report, Jessica, and that of
her fellow learner Keano, materially differed from o ne another in material
aspects;

1.4 In not accepting that a motive materialised for the complainant (A [...]),
to fabricate the version that the A ppellan t / Applicant sexually assaulted her
which she conveyed to her first report, J [...] and K [...];

1.5 In find ing that it was possible that the sexual assault took place in the
way the complainant described it;

1.6 Accepting that the sexual assault took place in the way the complainant
descried it as it is the respectful submission of the Appellant/Applicant that,
the chances that the sexual assault took place in the way it was described
during the trial proceedings, are highly improbable;

1.7 In not finding that the scenario sketched by the complainant was highly
improbable, seen in the light of the fact that a State Witn ess, Elizabeth
Nicolson, gave evidence on behalf of the State, that she is the social worker
for the school where the incident took place and that she has her office on the
first floor, adjacent to the media centre and personnel room, and that she was
present in her office at the time of the alleged offence, and that her office door
was open which not only makes the version of the complaint given during her
evidence improbable, but in fact impossible;

1.8 In finding that the sexual assault indeed did take place during the last
period of the school day and ignoring the fact that it became apparent that
during this tie there would be a lot of movement especially in the vicinity
where the offence occurred;

1.9 In not accepting the evidence of the last state witness, El izabeth
Nicolson, that if indeed the complainant and the accused had a discussion at
the personnel room, she, Nicolson, would have been in a position to hear the
conversation between the Appellant / Applicant and the complainant, as her
office was within e arshot of the personnel room which leads to the conclusion,
being the only conclusion, that the social worker would have noticed the
activity of the complainant and the Appellant / Applicant whether the
complainant entered the personnel room or not;

1.10 In acc epting the version of the complainant, which at certain times
lacked sense for example – When asked why did the complainant not say
anything at the time that the Appellant / Applicant allegedly touched her on
her buttocks, the complainant answered “because we were still discussing
transport”;

1.11 In finding that the complainant’s version is acceptable, and in totality
disregarding the version of the Appellant / Applicant in accepting that it would
make sense for a perpetrator of sexual abuse, to ask consent for a hug but
not touching the complainant’s buttocks or breasts;

1.12 In accepting the complainant’s version of how her breast was touched
by the Appellant / Applicant, as it became apparent that there was no
movement or cupping or squeezing of the breast but acc ording to the
complainant just touching.

1.13 The conviction of the Appellant/Applicant by the honourable court
created a feeling of shock, not only to the Appellant/Applicant and his defence
team, but also to court personnel and people in general of example hi s
previous colleagues at the school where the incident occurred.

1.14 It is the Appellant’s/Applicant’s submission that a different court could
possibly come to a different finding and as a result the Appellant/Applicant
requests the honourable court to allow h is application for leave to appeal to
proceed.

EVIDENCE FOR THE STATE

[7] It was compl ainant’s evidence that he touched her buttocks in total three
times. They went to the media cent re, after the staff room, where he told her that she
can work there as a result of transport issues. At the media cent re he touched her
boobie .

[8] He then asked for a hug , lifted her up , touched her bu ttocks again and put her
down . This took 5 to 10 seconds. She said to him that she w as uncomfortable with
that. They went back to the class room where she passed by J (first contact) and
broke down with K (first report) . She cried with J (second report) when they left class
whilst telling her as well. The reporting to them was consistent a lthough she did not
tell them everything. Complainant, urged and accompanied by J, went to the deputy
principal to report the incident. Both children made statements of what transpired. In
cross examination, complainant testified that outside the class appellant told her that
her homework was not up to date and threatened to call her parents. He also warned
her against the influence of her two classmates.

[9] J testified next. She corroborated the evidence of the complainant as to what
transpired in c lass. On their return she looked down and her mood was down.
Complainant told her that as they were walking up the stairs the appellant touched
her inappropriately . J elaborated to mean by touching her breast and stuff. She
further testified that when they reached the media cent re he asked her for a hug .
She hugged him and here he touch ed her buttocks and breast . According to J she
cried a bit and she felt upset. In cross -examination she testified the complainant was
reluctant to report it .

[10] The thir d witness was K . He testified the complainant told him appellant
touched her inappropriately. In cross -examination, he testified that she cried when
she came back in the classroom . She told him the appellant sexually harassed her
by touching her in the med ia cent re and she reprimanded him not to do it again and
after that he hugged and touched her again. On their return to class his observation
was that the appellant looked suspicious in his body language whereafter he went
out a few minutes. He admitted that whilst the appellant was explaining the work they
were talking. The appellant was angry. He also admitted that when the complainant
came back , they talked again which disrupted the class. When the appellant came
back with complainant , he did not continue with the class.

[11] The next witness to testify was the deputy headmas ter. She confirmed that
the complainant reported to her that he hugged her in the media cent re. A ccording to
her observations complainant was calm with even a little smile although she was
upset , but not “red lights”. She told complainant and J to write statemen ts.

[12] The last witness to testify was the social worker . She told the deputy
headmaster that complainant was sexually assaulted by a teacher. She corroborated
that complainant and J were told to write statement s of what happened . This is the
procedure at the school. The complainant and J w ere separated whereafter she
continued to speak to J. J told her that complainant waited at the door for him of the
media cent re when appellant hugged her and lifted her with his hands on her
butto cks. She corroborated that complainant thereafter told her friends who
encouraged her to report it. She also testified that the complainant was very calm
considering to what happened to her . The complainant also told her that she was at
the door of the staff room and therefore did not enter.

EVIDENCE FOR THE DEFENCE

[13] The appellant was the only witness that testified for the defence. The
appellant's version was that he denied everything.

[14] Appellant testified that they passed a number of offices and classrooms. The
social worker’s office is about half a metre away from the entrance to the staff room,
half a metre away from the media centre and a metre away from the staff kitchen.
Her testimony did not corroborate appellant’s version.

[15] He also testified that on the way back to class he was walking in front.
Appellant further testified that when they re -entered the classroom on their return, he
carried on assisting the learners cont rary to the evidence for the state.

[16] According to appellant he was in class for another few minutes when the bell
rang and the class dismissed. He then continued with his grade 11 learners for the
last period of the day. This incident occurred during the second last period.

[17] Appellant testified that the complainant was behind him the entire time, did not
touch her inappropriately and did not have any contact with her whatsoever.
Appellant further testified that they never entered the media centre and stood at the
entrance. He also testified that all the classroom doors were open including that of
the social worker as the school has an open -door policy. According to appellant the
deputy headmaster and social worker were in their offices during the incident. No
evidence was proffered to substantiate these allegations and he did not call any
witnesses.

[18] The appellant also testified that on the day of the incident he assumed that
the complainant had transport problems, which was therefore discussed during
school time, during class time and not in between periods and whilst walking down
the passage.

[19] Appellant, outside class, also threatened to call her parents, because her
homework was not up to date. He testified that her h omework was not up to date for
a week, but was later rectified to not up to date for one day only. It is appellant’s
case that this threat was her motive to get back at him. In our view the threat should
not be conflicted with the seriousness of the transg ression, homework behind for a
week is much more serious tha n for a day and appellant incorrectly inflated this to
bolster his case.

ISSUES FOR DETERMINATION

[20] The central issue for determination in this appeal is whether the trial court
erred in find ing that the state had proved its case beyond reasonable doubt that the
sexual assault indeed took place.

[21] Section 5 of the Sexual Offences and Related Matters Amendment Act, Act
32 of 2007 reads as follows:

“5 Sexual Assault
(1) A person ('A') who unlawfully and intentionally sexually violates a
complainant ('B'), without the consent of B, is guilty of the offence of sexual
assault.
(2) A person ('A') who unlawfully and intentionally inspires the belief in a
complainant ('B') tha t B will be sexually violated, is guilty of the offence of
sexual assault”.

[22] The definition of 'sexual violation' in section 1 of the same Act reads: “includes
any act which causes :

(a) direct or indirect contact between the -
(i) genital organs or an us of one person or, in the case of a female, her
breasts,
and any part of the body of another person or an animal, or any object,
including any object resembling or representing the genital organs or anus of
a person or an animal”.

[23] The o nus of proving its case rests upon the prosecution. In S v Van der
Meyden 1999(1) SACR 447 (W) at page 450 a -b it was said: “What must be borne in
mind, however, is that the conclusion which is reached (whether it be to convict or to
acquit) must account for all the evidence. Some of the evidence might be found to be
false; some of it might be found to be unreliable; and some of it might be found to be
only possibly false or unreliable; but none of it may simply be ignored”.

[24] And on pag e 449j-450a it was stat ed: “The proper test is that an accused is
bound to be convicted if the evidence establishes his guilt beyond reasonable doubt,
and the logical corollary is that he must be acquitted if it is reasonably possible that
he might be innocent. The process of re asoning which is appropriate to the
application of that test in any particular case will depend on the nature of the
evidence which the court has before it”.

[25] Proof beyond reasonable doubt does not, however, equate to proof to an
absolute degree of ce rtainty. In the case of R vs Mlambo 1957(4) SA 727 (A) page
737G to 738B it was said: “ This method of stating the rule that the Crown must
discharge the onus resting upon it beyond reasonable doubt has gradually gained in
popularity, especially at the Bar where it is a recognised refuge for counsel for the
defence who are harassed by strongly inculpatory evidence and attempts are
frequently made to interpret it as an intention to depart from the rule.
It is obviously impossible to formulate the principl e in language which will produce
any measure of certainty and endeavours are made to afford more definite and
reliable guidance to those engaged in the solution of tantalising problems by
unravelling inferences from circumstantial evidence. The language em ployed in the
more popular way of enunciating the principle does not appear to offer much relief. It
is no more precise than, and it is exposed to the same dangers of misinterpretation
and misapplication as, the form which at one time found almost universa l favour and
which has served the purpose so successfully for generations.
In my opinion, there is no obligation upon the Crown to close every avenue of
escape which may be said to be open to an accused. It is sufficient for the Crown to
produce evidence b y means of which such a high degree of probability is raised that
the ordinary reasonable man, after mature consideration, comes to the conclusion
that there exists no reasonable doubt that an accused has committed the crime
charged. He must, in other word s, be morally certain of the guilt of the accused.
An accused's claim to the benefit of a doubt when it may be said to exist must not be
derived from speculation but must rest upon a reasonable and solid foundation
created either by positive evidence or g athered from reasonable inferences which
are not in conflict with, or outweighed by, the proved facts of the case”.

[26] Beyond reasonable doubt means a high degree of probability, and not proof
beyond a shadow of a doubt or proof beyond all doubt. The st ate does not have to
close every avenue of escape, and fanciful or remote possibilities can be discounted
as these do not lead to reasonable doubt. The doubt must not be based on pure
speculation, but must be based upon a reasonable and solid foundation cr eated
either from the positive evidence or gathered from reasonable inferences not in
conflict with or outweighed by the proven facts.

[27] In the case of S v Ntselé 1998(2) SACR 178 (SCA ) it was said on page 180:
“..the onus which rested upon the State in a criminal case was to prove the guilt of
the accused beyond reasonable doubt - not beyond all shadow of a doubt. Our law
did not require that a Court had to act only upon absolute certainty, but merely upon
justifiable and reasonable convictions - nothing more and nothing less.
… when a Court was dealing with circumstantial evidence, as in the present matter,
the Court was not required to consider every fragment of evidence individually to
determine how much weight it had to be afforded. It was th e cumulative impression,
which all the fragments made collectively, that had to be considered to determine
whether the accused's guilt had been established beyond reasonable doubt.

[28] In the case of Seedat v S (A547/12 ) [2015] ZAGPPHC 286; 2015 (2) SACR
612 (GP) it was stated: “ [23] The complainant in casu was a single witness on the
essential aspect of the charge of rape. The evidence of a single witness needs to be
approached with great caution. The legal position was aptly stated by Makgoka J in
the matter of S v Mayisela2 as follows:

"[7] The issue in this appeal is whether or not there was penetration — a
key consideration which has a bearing on the conviction. This aspect is
dependent on the evidence of CD, who was a single witness. In terms of s
208 of the Criminal Procedure Act 51 of 1977 , an accused may be
convicted of any offe nce on the single evidence of any competent witness.
The court can base its findings on the evidence of a single witness, as long as
such evidence is substantially satisfactory in every material respect,3 or if
there is corroboration4. See further R v Mokoena 1956 (3) SA 81 (A) at 85; R
v T 1958 (2) SA 676 (A) at 676; S v Sauls and Others 1981 (3) SA 172 (A) at
180E - G; and S v Banana 2000 (2) SACR 1 (ZS) H (2000 (3) SA 885).

[8] Furthermore, CD was a child witness. When dealing with the evidence
of children, our courts have developed a cautionary rule which is to be applied

2 2013 (2) SACR 129 (GNP) at 132f -133e
3 R v Mokoena 1932 OPD 79 at 80.
4 S v Gentle 2005 (1) SACR 42 0 (SCA) .
to such evidence. The court must therefore have a proper regard to the
danger of an uncritical acceptance of the evidence of a child witness. See the
rationale for this approach in R v Manda 1951 (3) SA 158 (A) at 163E - F. The
state' s case also consisted of circumstantial evidence, as there is no direct
evidence of penetration.

[10] ….it is helpful to restate the approach to be adopted by a court of
appeal when it deals with the f actual findings of a trial court. The proper
approach is found in the collective principles laid down in R v Dhlumayo and
Another5 by the then Appellate Division. They are the following. A court of
appeal will not disturb the factual finding of a trial co urt, unless the latter has
committed misdirection. Where there has been no misdirection on fact by the
trial judge, the presumption is that his conclusion is correct. The appeal court
will only reverse it where it is convinced that it is wrong. In such a c ase, if the
appeal court is merely left in doubt as to the correctness of the conclusion,
then it will uphold it."

[29] The state witnesses ’ account s of events were given with sufficient clarity and
cogency and notwithstanding extensive cross -examination, the core of the evidence
on the probabilities remained unshaken.

[30] The state’s case included p eripheral issues such as :

1. Whether the compl ainant ’s friends would corroborate the compl ainant’s
testimony, what she had reported to them as well as the deputy headmaster
and social worker.

2. Complain ant’s transport issues raised whilst the class was in session
and took her outside of the class and stayed away 15 minutes.


5 1948 (2) SA 677(A).
3. The incident occurred in the open but nobody was called to testify
about what they saw, notwithstanding children at school, an open -door policy
and people that were in the admin istration office.

4. The children being naughty in class.

5. What transpired with the f irst contact, first report and second report .

6. Complainant’s homework was not up to date and appellant threatened
to call her parents.

[31] In the matter of S vs Morg an (271/2008) [2008] ZASCA 147; [2009] 2 All SA
158 (SCA) (27 November 2008 ) it was said regarding the issue of contradictions :
“[18] It is convenient to deal first with the submissions relating to the contradictions.
There is no doubt that the witnesses Leghlo, Baardman and Kiranie contradicted
themselves in cer tain respects. Both the trial court and the court a quo were alive to
this aspect in their assessment of the evidence. Bham AJ in dealing with the
contradictions in their evidence said the following in a passage which I adopt:

‘Whilst it is important to co nsider, in determining whether the state has proved
its case beyond reasonable doubt, the component parts of the evidence
tendered on behalf of the state, one should be careful not to sink into the
detail of such component parts in a manner which obviates the totality of the
picture.’”

[32] In S v Sithole (54/06) [2006] ZASCA 173 (28 September 2006) the court
addressed the issue of witness contradictions and held : “[7] It is trite that not every
error made by a witness will affect his or her credibility. It is the duty of the trier of
fact to weigh up and assess all contradictions, discrepancies and other defects in the
evidence and, in the end, to decide whether on the totality of the evidence the state
has proved the guilt of the accused beyond reasonable doubt. The trier of fact also
has to take into account the circumstances under which the observations were made
and the different vantage points of witnesses, t he reasons for the contradictions and
the effect of the contradictions with regard to the reliability and credibility of the
witnesses”.

[33] The trial court was equally alive to the fact that the evidence of the
complainant, who was a single witness regarding the sexual assault, must be viewed
with caution. The defence’s evidence was also of a single witness. The state’s case
was supported by circumstantial and hearsay evidence which included peripheral
issues.

[34] In terms of Section 208 of the C PA an accused can be convicted of any
offence on the single evidence of any competent witness. It is well established in our
law that the evidence of a single witness should be approached with caution, his or
her merits as a witness being weighed aga inst the factors which militate against his
or her credibility .

[35] In the case of S v Sauls and Others 1981 (3) SA 172 (A) at 180D it was held
that the omission of the word credible from the old section 256 was of no significance
as the witness must st ill be credible. In the same case at 180E it was stressed that
no rule of thumb test or formula can be applied in assessing the credibility of a single
witness.

[36] Hearsay evidence is defined as follows 6:

“Hearsay evidence is defined in section 3(4) as ‘evidence, whether oral or in
writing, the probative value of which depends upon the credibility of any
person other than the person given such evidence’. The crucial question now
arises: what is meant by ‘depends upon’? One possibility is that it woul d
suffice if the evidence depended to any or some extent on the credibility of the
other person. But this could not have been the legislature’s intention: all
evidence depends to some extent on the credibility of someone other than the
person testifying, s ince all testimony is a mix of original and received
information, and all transmitted information necessarily borrows from a pool of

6 The South African Law of Evidence, 3rd edition, by DT Zeffertt and AP Paizes, pages 405 – 406
accumulated knowledge, even if only to the extent that it makes use of the
conventions of visual and audial communication a nd linguistic practice.
Another possibility – that it must depend solely on the credibility of the other
person – must also be excluded, since the probative value of all testimony
depends, at the very least, on the credibility of the person who gives it.7
Between these extremes, then, lies the preferred approach. A case may be
made for reading the words as meaning ‘depend substantially or primarily
upon’, but a more functional approach might be to see the two processes in
section 3 – that of definition an d admissibility – as related and even inter -
dependent. Since the purpose of the expanded definition of hearsay is to
bring withing the borders8 evidence that is potentially prejudicial to a party
denied the opportunity to subject the maker of an extra -curial statement or act
to the standard adversarial devices for promoting truth, accuracy and
procedural fairness, why not give the words ‘depends upon’ a meaning that
chimes with that purpose? On this view, evidence would be hearsay if its
probative value de pended sufficiently on the credibility of someone other than
the witness to lead a court to believe that its potential for prejudice was
sufficiently great to warrant a full examination of all the relevant facts (such as
those set out in section 3 (1) (c)) .”9

[37] Circumstantial evidence is defined as follows10:

“All evidence requires the trier of fact to engage in inferential reasoning. 11
Where, in a murder trial, for instance, a witness relates how he or she saw the
accused stab the deceased, the trie r of fact will have to draw various
inferences regarding the truth of the testimony: is the witness to the believed;
did he or she have a proper opportunity to observe what he or she described;
could he or she be mistaken even though he or she is sincere i n his or her
account? These inferences, relating to the truth of the testimony, are common
to all cases where evidence is led. Frequently, however, the trier of fact is

7 See Hewan v Kourie NO and Another 1993 (3) SA 233 (T) at 236G -H.
8 Now, of course, so that a court may properly evaluate it and not, necessarily or even probably,
exclude it.
9 Law of Evidence Amendment Act 45 of 1988.
10 The South African Law of Evidence , supra, pag e 101
11 This has been recognised in S v Zuma [2006] 3 All SA 8 (W) at 71.
required to engage in a second tier of inferential reasoning – one that arises
even on the assumption that the evidence is true. Where, for instance, a
witness in a murder trial describes having seen the accused coming out of the
victim’s house with a bloodstained sword, 12 the trier of fact is asked to infer
more than that the witness was t ruthful. In order to arrive at a conviction, he or
she will additionally have to infer that the evidence supports the conclusion
that the accused stabbed the victim.

Evidence that asks a trier of fact to consider the second tier of inferential
reasoning i n addition to the first is referred to as circumstantial evidence. 13
Evidence that involves only the first tier is called direct evidence. Direct
evidence generally concerns the assertion of a fact by a person who claims to
have perceived it with his or h er own senses. 14 The assertion may be made
orally by a witness in court or (subject to the hearsay rule 15 and the rule
against previous consistent statements16 either orally or in writing by a witness
or someone else out of court.

All circumstantial evidence ultimately depends upon facts which are proved by
direct evidence”.

[38] It is tri te that the appeal court is reluctant to disturb factual findings of a trial
court. The only time an appeal court would interfere with such findings is if there is a
clear misdirection or the trial court was clearly erroneous. Reiterating this princip le,
the court in the Ministry of Safety and Security vs Van Niekerk 2008 (1) SACR 56
(CC) said in para 10: “This court, as any court of appeal, would be slow to interfere
with findings affected by a trial court based on a careful assessment of the credibility
of witnesses and the probabilities of their respective versions ..”

12 The bloodstained sword illustration was a favourite of Roman -Dutch writers. Cf. Matthaeus De
Criminibus ad 48.15.6; Voet Commentarius ad Pandectas 22.3.14. The Roman -Dutch writers
referred to circumstantial evidence as presumptions .
13 See, generally, S v Burger and Others 2010 (2) SACR 1 (SCA) at paras 26 -27; Freedom under
Law v National Director of Public Prosecutions and Others 2014 (1) SACR 111 (GNP) at para. 182.
14 The term ‘direct evidence’ is sometimes also used to distinguish the assertions of the witness who
is testifying from hearsay, i.e., his or her narration of the assertions of other people. In this sense,
hearsay. It is more usual, however, to use th e term ‘original evidence’ instead of direct evidence in
this latter sense.
15 See ch. 13.
16 See ch. 14.

[39] The trial court found the complainant to be a credi ble witness whose
testimony appeared to be truthful. The undisputed evidence was that she was crying
afterwards, she looked down when she went back to the class, her mood was down
and that she was touched inappropriately. This was corroborated by her two
classmates . The testimony of the deputy headmaster and social worker also did not
contradict complainant.

[40] She stood steadfast on the essential aspects of her evidence against the
appellant regarding the incident. In our view the complainant maintained her version
of the incident despite the appellant’s version that her homework was not up to date
and he was going to phone her parent s and this was the motive for making up the
incident to get back at him for this threat.

[41] A helicopter view of the entirety of the evidence paints a tapestry which ties in
with the version of the complain ant. We find the appellant’s version conforming with
the proven facts of the day in question. The submission that complainant made up
the story as a result of appellant's threat to phone her parents is without merit. We
are not persuaded from a reading of the evidence and a consideration of the written
arguments presented that the trial court's credibility finding was clearly wrong. The
trial court correctly considered the probabilities against the facts of the case, in
concluding that the state had proven the guilt of the a ppellant beyond reasonable
doubt see S v Chabalala 2003(1) SACR 134 (SCA ) at 135a.

[42] The circumstantial evidence of the other state witnesses was formulated by
Watermeyer JA in R v Blom 1939 AD 188 at 202 where the two ‘cardinal rules of
logic’ relati ng to inferential reasoning in cases based on circumstantial evidence are:

“(1) The inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.

(2) The proved facts should be such that they excl ude every reasonable
inference from them save the one sought to be drawn. If they do not exclude
other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct ”.

[43] The only inference to be drawn from all the evidence was consistency with
complainant’s version of the incident . The conclusion that the appellant was guilty as
charged was a factual finding which the trial court had made without committing any
misdirection. It cannot be said that a reasonable court could never have made such
a finding, or that the finding was patently incorrect. Accordingly , we should not
interfere with the trial court's finding.

[44] We conclude that the trial court correctly found that the state proved the
appellant's guilt beyo nd reasonable doubt. It is evident that the appellant was
correctly convicted and we would propose that the appeal against conviction be
dismissed.

ORDER

[45] In the result the following order is made:

1. The appeal is dismissed.



MAKAMU J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG


ALLEN AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG


This judgment was prepared by Acting Judge Allen. It is handed down electronically
by circulation to the parties or their legal represent atives by email, by uploading to
the electronic file of this matter on Caselines, and by publication of the judgment to
the South African Legal Information Institute. The date for hand -down is deemed to
be 19 March 2025.

HEARD ON: 13 March 2025

For th e Appellant : Adv De Beer
Instructed by Dawid M van Wyngaard Attorneys

For the Respondent : Adv Mathebula
Instructed by The State Attorney Johannesburg