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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO )

CASE NO.: CA &R 11/2023

In the matter between:

LUVUYO WAPI Appellant

and

THE STATE Respondent


JUDGMENT

JOLWANA J

[1] The appellant was arraigned in the Regional Court, Zwelitsha on charges of
contravening the provisions of section 3, read with sections 1, 56 (1), 57, 58, 59, 60
and 61 of Act 32 of 2007, also read with section 51 (2) of Act 105 of 1997, further
read with Schedule 2 thereof. It was alleged that on or about 22 September 2017, at
or near the Time Housing residential area in Dimbaza, the appellant unlawfully and
intentionally committed an act of sexual penetration with the complainant, per
vaginum , without her consent. The appellant who was legally represented during the
proceedings a quo pleaded not guilty to the said charge of rape and elected not to

divulge the basis of his defence. He was convicted as charged and sentenc ed to 8
years direct imprisonment. With the leave of the court a quo, he now appeals to this
Court against conviction.

[2] The evidence of the complainant was that the appellant was her boyfriend
until they broke up in 2016. After they broke up they would meet each other but
would not have any conversations. She met the appellant on 5 May 2017 in her
matric dance and had a conversation with him during which he obtained her cell
phone number. Since the matric dance , they would have conversat ions with each
other. On 22 September 2017, she and her friends were preparing to go to Coke’s
tavern but ended up being at Nkululeko’s tavern. At their table , it was herself and her
friends Zine and Nomzamo, the appellant and his friends Thando and Luyanda. She
went to the toilet with Zine and they again spoke about going to Coke’s tavern. The
appellant approached them saying he wanted to talk to her. She told the appellant to
let go of her as she wanted to go to Coke’s tavern to meet her boyfriend. He let go of
her and they returned to their table where they continued drinking.

[3] Nomzamo said she wanted to buy a soft drink and gave the complainant
R7.00 which was R3.00 short. The complainant gave the R7.00 to the appellant and
asked him to add to it or buy them a soft drink. The appellant said that they should
go outsi de to talk. They went outside where they were joined by Thando. The
appellant head -butted her on the nose without saying anything as a result of which
she bled from the nose. The appellant said that they must go and Nomzamo got out
and as she was about to intervene, Thando told her not to get involved. Nomzamo
tried to speak to the appellant, and he insulted her. The appellant then dragged her
and the two of them left the tavern. The appellant continued dragging and assaulting
her with open hands on the way. When they reached a certain corner of the
appellant’s homestead, they met five young men whom she did not know who tried
to intervene and the appellant told them that it was none of their business.

[4] When they arrived at the appellant’s homestead, he picked her up and threw
her over the fence and they proceeded to his flat. They found the appellant’s uncle,
Lindelani there. The flat was a backyard structure detached from the main house and
the appellant lived in that flat. The appellant opened the burglar door to his flat.
Lindelani tried to stop him from assaulting her. At that time the appellant was
carrying a broomstick he got from the toilet saying he was going to assault her
because she was disrespectful. The appellant stopped assaulting her and left the
broomstick outside and when they entered the flat, he threatened to cut her into
pieces with a chain saw which was in the flat. The flat was a two-roomed structure,
and the chainsaw was in the other room.

[5] The appellant told her to go to the bathroom to wash her face as she was
bleeding so that they could sleep. She went to the bathroom and washed her face
after which she proceeded to the appellant’s room where she found the appellant
already undressed. The appellant undressed her and told her to lie on her back. She
lay on her back and he got on top of her. When she would not let him insert his penis
into her vagina, the appellant said he was not going to insert it. The appellant then
stood up and took a lover’s gel from underneath the bed and smeared her vagina
with it. He thereafter inserted his penis into her vagina and copulated with her until
he was satisfied. After having sexual intercourse with her, they slept. He did not use
a condom.

[6] In the morning, the appellant gave her money for a taxi and accompanied her
to a nearby church. She testified that she could not leave during the night because
she was afraid of the appellant and her homestead was far from that of the appellant.
She went straight to her homestead and called her mother to come and open the
gate for her. Her mother came and opened the gate. She told her that she wanted
her flat shoes because she wanted to go to the police station. Her mother noticed
that her face was swollen and asked her what happened, and she told her what
happened. Her mother accompanied her to the police station. When they got out of
the gate in her home stead , they met Zine who said that she would also accompany
her to the police station. They went to the police station and she reported the
incident. The police took her to Grey Hospital where she was examined by a doctor.
With reference to the doctor’s medico -legal examination report which reflected that
there were no physical injuries, she explained that her nose bridge was swollen, and
the police officer who opened the case saw that her nose was swollen.

[7] Under cross -examination, the complainant testified that she arrived at her
home at about 09:00 in the morning. When she left the previous night she had told
her mother that she would sleep over at her boyfriend’s place. When her mother
came to open the gate, she was shocked when she saw her face and asked her
what happened. She told her to open the gate and she would tell her inside. She
wanted to pick up her flat shoes because she wanted to go to the police station.
When they got inside the house, she told her mother what the appellan t did to her.
They went to the police station where she narrated the incident to the police.

[8] She testified that when they went to the tavern the night before, the appellant
had phoned her offering to fetch them, and he did so. She was with Zine and
Nomzamo and the appellant came with Thando. The time was about 21:00 to 22:00
at night and they arrived at Nkululeko’s tavern at about 22:30. It was put to the
complainant that the appellant was at his home, and she sent him a call-back
message which was why he called her. She denied sending the applellant a callback
message insisting that it was the appellant who just called her. She denied that she
and the appellant went from Nkululeko’s tavern to the appellant’s homestead in a
car. She testified that the car that fetched them from her homestead did not belong
to the appellant. It was a white bantam vehicle which was driven by Thando. When
she was being dragged by the appellant from Nkululeko’s tavern to his homestead,
she was crying and apologising. Nomzamo saw her crying when she was being
dragged but Thando told her to leave them alone. It was put to the complainant that
the appellant would say that he did engage in consensual sexual intercourse with her
and she responded that she was not willing to have sexual intercourse with him. It
was further put to her that according to the J88 medico -legal examination report,
there were no physical injuries and there was no evidence of forceful penetration.
She testified that the appellant head -butted her on the bridge of her nose and he did
insert his penis into her vagina without her consent.

[9] She described the appellant’s flat as a backyard structure consisting of two
separate flat-roofed structures joined in the middle by a bathroom. The second room
was the one in which Lindelani was sleeping and it was the one that had a chainsaw.
She did not see the appellant undressing because she had gone to the bathroom for
the second time to wash her face again as it was still bleeding. The complainant
further testified that in the morning, the appellant’s mother knocked at the door and
she and the appellant woke up. When they were about to get out, the appellant said
that they should wait for his mother to get into the main house so that she did not
see her. She agreed to do so because she respected her as an elderly person. She
testified that she did not intend to expose the appellant and even when she went to
the police station, she did not have any intention to report the rape, she wanted to
open a case of assault. The police asked her to explain the reason she was
assaulted which she did. When she reported the incident to her mother, she told her
that the appellant forcefully engaged in sexual intercourse with her. Her mother said
that it would be a matter for the police. When she was testifying in re-examination,
the complainant explained that she was not going to report that the appellant raped
her because she was afraid that he might come back and assault her as he had
threatened her with a chainsaw.

[10] The State called Ms M[...] who testified that she is the complainant’s mother.
She knew the appellant as her daughter’s ex-boyfriend. The complainant had told
her that she ended her relationship with him because the appellant liked women. On
23 September 2017 , the complainant came home after 08:00 in the morning. The
complainant called her and asked her to open the gate for her as it was locked. She
said that she needed to change her shoes as she was going to the police station.
When she opened the gate, she noticed that her face was swollen and greenish in
colour. She was carrying her white cell phone which had blood stains. The
complainant told her that she was assaulted by the appellant. She further told her
that the appellant took her by force from Dongeni’s tavern and continued assaulting
her on the way to his home. She told her that they were on the way to Coke’s tavern
but they met the appellant, but she was not sure if they met by arrangement or by
chance. The complainant told the appellant that she was on her way to her boyfriend
at Coke’s tavern, but the appellant said that she could not do that to him.

[11] They ended up going to Dongeni’s tavern. While they were there, she asked
the appellant for R7.00. She and the appellant went outside to talk where they then
argued. The appellant took her by force and left with her. During the commotion, her
phone fell down, and it was picked up by another young man who assembled it and
gave it back to her. The appellant dragged and pulled her to his homestead where
he forced her to jump over the fence. They found a man he called an uncle who tried
to intervene. The complainant told her that the appellant threatened her with a
chainsaw that was there. She went to the police station with the complainant as the
complainant said she wanted to open a case because the appellant slept with her
without her consent and assaulted her. She did not notice any blood on her clothing,
the bloodstains she saw were on the phone. There were no open wounds but the
complainant was just swollen on her face. She was told by the complainant that she
had been head -butted on her nose by the appellant.

[12] She did not confront the appellant about the incident but on the way to the
police station, they met him and he wanted to speak to her. She was still angry and
therefore she did not want to speak to him. After some weeks after his arrest, the
appellant phoned her saying he would like to speak to her about what happened
between him and the complainant. The appellant’s mother came to apologise on the
Sunday on which the appellant was arrested. After the appellant was released from
custody, he also came to her homestead to apologise. The appellant said that the
case would cause problems for him and he would like to apologise and would do
anything for the complainant.

[13] Under cross -examination, Ms M[...] testified that police arrived at her house
and took a statement from her. She testified regarding her statement in which she
said that the complainant told her that she had sexual intercourse with the appellant
two times that night. She further testified that she did not accompany the
complainant to the police station in order to get the appellant arrested. She was
narrating what the complainant told her as she was the first person who was
informed by the complainant about the incident. She explained that Dongeni and
Nkululeko’s tavern was the same place.

[14] The next witness for the State was Nomzamo who testified that she was
friends with the complainant and Zine. She testified that they were going to Coke’s
tavern to enjoy themselves from about 22:00 to 23:00 on 22 September 2017. The
complainant received a call from an unknown number. The complainant said to the
caller that they were going to Coke’s tavern. She was later told by the complainant
that the caller was the appellant and that he was coming to fetch them in a vehicle
and would take them to Coke’s tavern. The vehicle arrived driven by Thando. The
appellan t asked the complainant where they were going, and she said that they were
going to Coke’s tavern. On the way to Coke’s tavern, the appellant said that the
complainant was not going there. The vehicle proceeded and did not turn to Coke’s
tavern. It proceeded to Dongeni’s tavern, where they alighted from the vehicle. The
appellant and the complainant stood aside talking. Thando then said that they must
go inside Dongeni’s tavern as what they were going to do at Coke’s tavern could be
done there. Thando bought alcohol and they sat together and consumed it. The
appellant and the complainant were talking to each other reminiscing about what
happened in matric. She then said to the complainant that she should ask the
appellant for R3.00 to add to her R7.00 to buy a drink that was going to be used to
dilute the Gin they were consuming. The complainant asked the appellant for R3.00
and the appellant said that they must go outside. They got out and at some point ,
she saw the appellant assaulting the complainant.

[15] Thando said that they must not intervene as the appellant and the
complainant usually fought. They then sat down and Zine said that they must get out.
They went out and met the appellant and asked him about the whereabouts of the
complainant. However, the appellant insulted her. She could hear screams but could
not figure out where they were coming from. She was told by the appellant to go and
buy him a cigarette which she did because she was scared of him. She went inside
and told Zine that she had been insulted by the appellant. She did not see the
complainant outside with the appellant, she last saw her when he assaulted her. She
heard her screaming but did not know where she was. She explained that outside
there was a passage where vehicles were parked, and one could not see a person
there. She later went home without the complainant as she did not know where she
was.

[16] When she met the complainant the following morning, she had a swollen face
and a greenish eye. She was crying saying that the appellant raped her at his
homestead. They went to the police station and on the way, they met the appellant.
He asked the complainant where she was going, and she said that she was
accompanying her mother to the shops. She testified that the complainan t’s matric
jacket had bloodstains, and she had seen her bleeding from the nose and from the
mouth when she was being assaulted. After this witness , the State close d its case
after which the appellant’s attorney made an application for the discharge of the
appellant in terms of section 174 of the Criminal Procedure Act 51 of 1977 . That
application was, however, turned down.

[17] The appellant testified in his defence. His evidence was that on 22 September
2017 , he was at Nkululeko’s Tavern also known as Dongeni’s Tavern. He had
received a callback message from the complainant. When he called her back, she
asked him to fetch her. He and Ntando went to fetch her and her friends, and they
all went to Dongeni’s Tavern. On arrival there , Ntando bought old buck brandy, and
they sat down to drink. There was no time at which the complainant and her friends
wanted to alight from the vehicle along the way. At some point, the complainant
asked to see him outside. They stepped away from their other friends and the
complainant asked him to add some money to her money because she wanted to
buy a soft drink. He gave her the money and they went back inside the tavern where
they continued drinking. At some point , he told them that he wanted to go and sleep
beca use he was feeling tipsy. He went home with the complainant. They had dated
before but at that time they were just getting along. When he and the complainant
left the tavern, all was well and she said that they could leave together, and he would
bring her back the next day.

[18] He denied dragging or assaulting the complainant. His home was not far from
the tavern. He used his own key to open the gate and to open his flat. He denied
throwing the complainant over the fence into the yard. When he got into his flat, he
found his cousin, Lungile in his flat and his cousin left. There was never a fight
between him and the complainant in the flat. He entered the flat, went straight into
his room and slept and the complainant slept next to him. He never forced her to
have sexual intercourse with him. They woke up in the morning , had some
conversation and then slept again. He woke up because he wanted to go back to
Dongeni’s Tavern, but the complainant wanted them to have sexual intercourse
before he left. They engaged in sexual intercourse during which they used a
condom. He denied using a gel in order to have sex with the complainant. After they
had sexual intercourse, he gave her R50.00 for transport. He and Ntando went to
town and on the way back from town, they met the complainant who was coming
back from Dimbaza. Ntando stopped the vehicle, and he (the appellant) had a
conversation with the complain ant. It was a normal conversation, and the
complainant did not show any signs of being emotional or stressed .

[19] Under cross -examination, the appellant testified that he never had a fight or
argument with the complainant. Even when he saw her the following day at about
10:30, there was no blood and she was not swollen . She was with her friends whom
he did not know. They were the same friends she was with the previous night. When
they met that morning, they had a normal conversation in which she asked him
where he was coming from. He told her that they were coming from a town where
they had gone to buy a cake for Ntando’s child as it was her birthday. On the day
they went to Dongeni’s Tavern , there was never a talk of going to Coke’s Tavern.
He never hit the complainant at all. She willingly went with him to his home where
they slept together. They were conveyed to his home in his friend’s vehicle with
which he had fetched them initially.

[20] He testified that he and the complainant were in a love relationship. He then got
a job in East London as a result of which he left Dimbaza to stay in East London.
While he was in East London, they would call each other and they used to see each
other when he was in Dimbaza. There was never a talk of breaking up. When he was
with her on the day of the incident, she had no blood stains and she had no injury.
He never assaulted her and she was never swollen. When the complainant left the
following morning, everything was fine and he was shocked when he got arrested.
There was no chainsaw at his home and she lied about a gel having been smeared
in her vagina. That night he did not have sexual intercourse with the complainant.
They only engaged in sexual intercourse the following morning and no gel was used.
Before they had sexual intercourse, he told her that he had no condoms, and she
said that they should go and get them from the Clinic. They went to the Clinic, got
the condoms, came back and then had sex before she left. After the evidence of the
appellant, his case was closed.

[21] After summaris ing the evidence of all the witnesses, the court correctly
pointed out that while the versions of the complainant and that of the appellant were
mutually destructive in most material respects, it was common cause that they did
have sexual intercourse. They just disagreed about whether it happened that night
on their arrival at his flat or the following morning. The court went on to say that it
accepted that at that time the complainant was no longer in a relationship with the
appellant, having moved on and had another boyfriend. It said that it accepted that
the appellant was the complainant’s ex-boyfriend. It further accepted that their sexual
encounter on that occasion was forced on the complainant by the appellant. The
court found that at some point at Dongeni’s Tavern, the appellant and the
complainant were outside where the appellant assaulted the complainant. They then
moved to his home and the appellant did not want her to go to Coke’s tavern where
her boyfriend was. It then concluded that the appellant took the complainant to his
home by force where he threatened her and had sexual intercourse with her without
her consent. The court found that in doing so, the appellant acted very brazenly, and
the complainant was overwhelmed and gave in and had sexual intercourse with him
which was non-consensual. It thereupon convicted the appellant of rape and
sentenced him to eight years of direct imprisonment.

[22] There are a number of concerning aspects about the judgment of the court a
quo. I mention just a few of them hereunder. The court pronounced that it was
accepting the version of the complainant. However, in doing so, it did not account for
the evidence of the appellant by either rejecting it or making credibility findings
against him. The court a quo’s approach in this regard was at variance with the trite
legal position which was aptly articulated in Shackell1 as follows

“….It is a trite principle that in criminal proceedings the prosecution must
prove its case beyond reasonable doubt and that a mere preponderance of
probabilities is not enough. Equally trite is the observation that, in view of this
standard of proof in a criminal case, a court does not have to be convinced
that every detail of an accused’s version is true. If the accused’s version is
reasonably possibly true in substance the court must decide the matter on the
acceptance of that version. Of course it is permissible to test the accused’s
version against the inherent probabilities. But it cannot be rejected merely
because it is improbable; it can only be rejec ted on the basis of inherent

1 S v Shackell [2001 ] 4 All SA 279 (A) at para 30.
probabilities if it can be said to be so improbable that it cannot reasonably
possibly be true. On my reading of the judgment of the court a quo its
reasoning lacks this final and crucial step. On this final enquiry I consider the
answer to be that, notwithstanding certain improbabilities in the appellant’s
version, the reasonable possibility remains that the substance thereof may be
true….”

[23] The Shackell matter is on all fours with this matter in that the court a quo’s
reasoning lacks the final and crucial step referred to in that matter. In the final
analysis, the court a quo did not even try to embark on the analysis of the appellant’s
version for purposes of looking at whether despite certain improbabilities it might
have identified, there was no reasonable possibility that the substance of his version
that the sexual intercourse was consensual was true. Some of the complainant’s
evidence was that the appellant head -butted her at Dongeni’s Tavern and thereafter
dragged her to his home. It is also apparent from the statement the complainant’s
mother made to the police that the complainant’s aunt lived near Dongeni’s Tavern.
It further appears from that statement about which her mother was cross -examined
that the complainant did not scream while she was being assaulted and dragged
there for the reason that she respected her auntand did not want her to hear her
name being called there . I am struggling to understand a person being forcibly taken
away, being abducted basically, who did not want to draw attention to what was
being done to her out of respect for her aunt who could have saved her or called the
police.

[24] When they arrived at the appellant’s home, her evidence was that she was
thrown over the fencing which her mother referred to as a wall in her and fell on the
crushed stone but was neither injured nor sprained. She still did not run while the
appellant was still trying to scale the fencing. She did not scream to attract the
attention of the other people in that homestead. Even when they came across
Lungile in the flat, she did not ask for help from him or scream to raise alarm or try
to draw the attention of the other people in the main house. Before they slept, her
evidence was that she went into the bathroom to wash the blood from the head -
butting incident. This bathroom was not inside the appellant’s room but it was
outside. As Mr Jikwana, the appellant’s counsel pointed out, this was yet another
opportunity for her to escape and run to the main house where the appellant’s
mother was apparently sleeping. Instead, after washing her face she returned to the
appellant’s room where she found him already naked.

[25] Finally, the complainant’s version was also that when her mother saw her that
morning at her home when she open ed the gate for her, she noticed that her face
was swollen. Her mother’s evidence and that of her friend Nomzamo was that her
face was swollen and greenis h. However, the doctor who exam ined the complainant
on the same day and completed the medico -legal examination report found no
injuries, not even the swelling or greenish pigmentation. Lastly, it was the
complainant’s evidence that she went to the police to report assault, not rape. Her
decision that despite being raped and assaulted, she was not going to report the
rape and yet she had told her mother that she had been raped is difficult to
unders tand. The possibility that the evidence of the State witnesses might have been
curated in some instances cannot be excluded . There were also a number of glaring
inconsistenc ies among the State witnesses’ account s of what happened or said to
have happe ned.

[26] This brings me back to the trite principle to which I alluded earlier , that a court
must account for all the evidence. In Van der Meyden2 the court expressed this
principle as follows:

“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 reasoning 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. What must be borne in mind, however, is that the conclusion
which is reached (whether it be to convict or acquit) must account for all the
evidence. 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 might be ignored.”


2 S v Van der Meyden 1999 (2) SA 79 (W) at 82 C -Y
[27] Precisely because it is the duty of the State to prove its case beyond
reasonable doubt , a court does not have to be convinced that every detail of an
accused’s version is true3. I am mentioning this principle to make the point that while
there might have been improbabilities in the version of the appellant, even on the
acceptance of certain elements of his version being improbable, it did not follow that
he should be convicted without more. He had no onus to prove his innocence.

[28] The last point is that the complainant was a single witness whose evidence
needed to be considered with the required degree of circumspection, the so-called
cautionary rule. This has nothing to do with the complai nant being a rape victim but
everything to do with her being a single witness , a caution that applies to all single
witnesses regardless of the nature of the offence. The court a quo did not seem to
be factoring the cautionary rule into account in the assessment of the complainant’s
evidence on the crucial issue of consent to sexual intercourse. The court simply
pronounced that it accepted the evidence of the complainant. Inexplicably, Lungile
was not called to testify and yet he was the only person who interacted with the
appellant and the comp lainant at the appellant’s homestead that night and who, on
the complainant’s version, witnessed the assault there and tried to intervene.

[29] In Ximba4 the Supreme Court of Appeal restated the approach to the
application of the cautionary rule as follows:

“Invariably, in any rape matter, the complainant will be a single witness. There
is no formula for assessing the credibility of a single witness. A trial court
should consider the evidence in its totality and should determine whether the
truth has been told, despite any shortcomings and contradictions. As has
been repeatedly stated by this Court, the correct approach 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, decide whether the balance weighs so heavily in favour
of the State as to exclude any reasonable doubt about the accused’s guilt. In

3 Olawale v S [2010] All SA 457 (SCA) at 455 at paras 13-15.
4 Ximba v S (957/2022) [20 24] ZASCA 6 (19 January 2024) at para 26.
other words, what is required is credible evidence which renders the
complainant’s version more likely that the sexual intercourse took place
without her consent, and the appellant’s version less likely that it did not.”

[30] The court a quo misdirected itself in a number of ways as alluded to
hereinbefore. How it came to the conclusion that the State had proved its case
beyond reasonable doubt without any attempt at assessing the version of the State
against that of the appellant remains unfathomable. Cases like this one are a cause
for concern if not disquiet in light of the crime of rape which has reached alarming
proportions in this country. As Mr Sinclair, counsel for the State correctly pointed out,
this case appears to have been a comedy of errors from poor investigation by the
police to poor prosecution and, unfortunately the failure of justice at the hands of the
hapless magistrate who also failed to do the basics in doing a proper assessment of
all the evidence.

[31] The importance of a proper analysis of all the evidence cannot be over-
emphasised as a general proposition . This becomes even more indispensible in rape
cases where the offence was committed in the context of the history of an intimate
relationship between the rape victim and the accused . As the Supreme Court of
Appeal pointed out in Coko5, sexual violence committed in the context of an intimate
relationship does call for a thorough assessment of all the evidence. The court
expressed the principle as follows in Coko:

“[13] It bears mentioning that this case falls within the category of sexual
violence committed in the context of an intimate relationship. Consequently,
this can be particularly difficult to navigate given the intimate nature of such
relationship, familiarity coupled with the fact that the parties would in most
cases have previously been involved in some form of sexual contact prior to
an allegation of rape by one of the parties against the other. This point was
studiously emphasised by counsel for the second amicus curiae, Initiative for
Strategic Litigation in Africa. However, it must be stressed that this in no way
means that cons ent by one party to a specific form of sexual act should be

5 Director of Public Prosecutions, Eastern Cape, Makhanda v Coko 2024 (2) SACR 113 (SCA); [2024]
3 All SA 674 (SCA) paras 13 and 6 2.
taken to be a licence to every other sexual act. It is, inter alia, those types of
situations that the Sexual Offences Act was designed to address.
…
[62] As to the element of mens rea, it is beyond question that intention is a
prerequisite for a conviction as it is an integral part of the definition of the
statutory crime of rape. A must know that B had not consented to a
penetrative sexual act. Therefore, the accused may only ‘escape [criminal]
liability on the ground of absence of knowledge of unlawfulness of his conduct
if he [or she] believed the complainant … was in fact consenting. ’ Even dolus
eventualis suffices, which means that it is sufficient to prove that A foresaw
the possibility that B’s free and conscious consent might be lacking, ‘but
nevertheless continues to act [recklessly] appreciating that [he/she may be
acting without his/her consent], therefore “gambling” as it were [with the
security, bodily integrity and dignity] of the person against whom the act is
directed.’ ’’

[32] The basis on which there could have been any inkling of the absence of
consent at any stage during the night of the 22 or the morning of the 23 September
2017 is indecipherable from the court a quo’s judgme nt. How mens rea was
established in any form was, at best, not explained by the court a quo, at least, not
as properly as one would have expected in as serious a matter as this one. It follows
that the State failed to discharge the onus resting upon it to prove the guilt of the
appellant beyond reasonable doubt. It follows that the appeal must be upheld and
the appellant must therefore be acquitted.

[33] In the result, the following order is issued:

1. The appeal is upheld.

2. The conviction and sentence of the appellant are set aside.



M.S. JOLWANA
JUDGE OF THE HIGH COURT

I agree:


B.M. PAKATI
JUDGE OF THE HIGH COURT


APPEARANCES:

Counsel for the Appellant : Adv T.M. Jikwana
Instructed by : B.N. Jikwana Attorneys Inc.
Butterworth

Counsel for the Respondent : Adv L.W. Sinclair
Instructed by : Director of Public Prosecutions
Bhisho

Heard on : 26 March 2025
Judgment Delivered on : 08 April 2025