IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA )
Case Number .: CA&R 182/2023
In the matter between:
GARETH PAYNE First Appellant
and
THE STATE Respondent
JUDGMENT – CRIMINAL APPEAL
Beshe J
[1] The appellant , a male person who was 28 years old at the time together with
another male person stood t rial in the Regional Court, Gqeberha on a charge of
rape. Both the appellant and his co -accused who were legally represented pleaded
not guilty to the charge . At the conclusion of the trial on 6 July 2023 t hey were both
convicted as charged . They were each sentenced to undergo imprisonment for life.
Subsequent to that they were granted leave to appeal against both the conviction
and sentence. The Regional Magi strate’s r ational e for granting them leave to appeal
against both conviction and sentence being that because the y have an automatic
right to appeal against life imprisonment , the appeal court might as well consider the
judgment on the merits.
[2] It is only the present appellant who was accused number one during the trial
who filed h eads of argument. T his led to respondent appl ying that second appellant’s
appeal be struck off the roll. Respondent’s application in this regard was acceded to,
with second appellant’s appeal being struck off the roll. During the hearing of the
appeal, appellant’s legal representative Mr O’Brien in timated that the appeal against
sentence was no longer being p ursued, it being abandoned. So, the appeal is
against the conviction only.
[3] The charge that the appellant and his co -accused were facing was based on
the allegation that on the 12 February 2020 at or near Whitehead Street, St.
George’s Park, Gqeberha, they unlawfully and intentionally committed act s of sexual
penetration with the complainant by inserting their genital organs into her vagina.
Four witnesses testified in support of the state’s case. Appellant also testified and
called his wife to testify in support of his case .
[4] Complainant’s evidence was briefly that she was walking at Central when a
Quantum minibus stopped next to her. The driver asked her for directions to St.
George ’s Park. She recogni zed the driver as someone she would see at th e taxi rank
and identified him as the appellant. The latter asked her to come with him so that she
can direct him to St. Georges Park and promised to drop her off at her destination
which was at the garage or petrol station. He then drove towards St. George’s Park.
However, he did not stop at the garage but drove faster, pointed her with an object
she could not identify on her neck and told her not to move . He drove off to St.
George ’s Park and stopped the motor vehicle next to a block of flats. He told her to
take off her clothes which she did because she was scared of him. He wore a
condom and proceeded to rape her, firstly between the two front seats and later on
the second row of seats from the back . Even though she did not observe him
removing the condom, she felt wet afterwards . Appellant handed her a piece of cloth
and instructed her to wipe her private parts . Unbeknown to her, there was a second
man on the back seat of the bus who then told her to come to where he was. She
did, due to fear. The second man also raped her. She was thereafter dropped off at
the garage she was initially going to.
[5] On a subsequent date she decided to go and report the matter at a satellite
police station in Humewood realising that if she did not, the two men will continue
doing what they did to her to other women unabated. She told the female officer who
attended to her that she knows her assailants from the taxi rank where Greenacres
taxis stop. They proceeded to the taxi rank but could not find her assailant s. She was
referred to Humewood main police station. It was at the Humewood police station
that she formally laid charges against her assailants. A few days thereafter she
spotted one of her assailants driving a minibus in Main Street. As luck could have i t
there happened to be a police van nearby. She told the police in that van that she
had seen the person against whom she had opened a criminal case. She took the
police to where the former accused number two was. The latter was taken to
Humewood police st ation. During the discussions with the police at the police station
accused number two denied that he had come across complainant, that she may be
mistaking him for his brother. Two of his friends or brothers who had accompanied
him to the police station joined the discussion. During the discussions at the police
station, with arrested suspect and his friends disavowing that he raped the
complainant, appellant’s name was mentioned. He searched Facebook for a p erson
with that name, appellant’s image came up. Complainant described the second
suspect , resulting in accused number two’s friend asking her if that person
resembled one who was in an image on a mobile phone. S he confirmed that it was
him. The police, ac companied by accused number two’s companions proceeded to a
car wash where complainant pointed the appellant out. It appeared to be common
cause that the complainant was examined by a Doctor Mtini on the 18 February
2020 some six days after the incident.
[6] During cross -examination, she was taken to task about what appeared to be a
contradiction between what she said in court and what she said to the first report , a
female officer she found at the satelite police station , namely:
(i) whether she was on her way to or walking back from the garage.
(ii) whether she got into the minibus because she sa w there was only one
occupant or because she recognised the driver’s face from the taxi rank.
It also transpired from complainant’s evidenc e that there were streetlights as they
were driving in the minibus, enabling her to see the driver’s face.
[7] The first report was made to Sergeant Ngxonono at the Satellite police
station. According to her , what prompted the complainant to lay a charge was that
she had spotted one of two people who had raped her on an earlier date at the taxi
rank and she was in a state. She narrated to her what occurred on the date of the
alleged rape. It transpired that s he did not reduce what complainant told her at the
time she did so. She only did so at a later stage. Because they attend to petty
crimes, she called her colleagues from the Humewood police station to come and
deal with the report.
[8] The investigatin g officer’s involvement began when she found the
complainant and one of the suspects at Humewood police station. She confirmed
that one of the suspects who was there showed complainant an image of a person
who the complainant confirmed was that of one of h er assailants. This led to her
proceeding to the car wash where complainant pointed the appellant out.
[9] Constable Mo hamed ’s testimony was in relation to the arrest of appellant’s
co-accused at the taxi rank. His evidence seems to have placed the issue of how the
image depicting appellant came to the fore, into perspective.
[10] Appellant confirmed that he owned a taxi but that the driver thereof was one
Alvin. That he would pick the driver up in the morning, Alvin in turn would drop him
off at his th en fiancé’s place, now his wife. He would remain there the whole day.
This was also the case on the day of the alleged incident. Also, that he also spent
the better part of the night there because there was a party held that evening. He
only went home at a round 01h00 whereupon he drove in his minibus. His co -
accused was known to him seeing his brother is married to appellant’s sister. His co -
accused is a taxi driver. Appellant testified that as a taxi owner he was known to
many people. It transpired that he would take his driver home in the evening and
then drive home to Kensington. That on the day in question he took his driver home
at about 19h00 and then went back to his fiancé’s house. Driving home after leaving
the party, he drove with his co -accused wh o he had given a lift as they both reside in
Kensington.
[11] Appellant’s evidence about his whereabouts on the day of the incident was
confirmed by his wife. She however could not recall whether appellant’s co -accused
Zaheer attended the party at her home. That in a nutshell is the evidence that was at
the trial court’s disposal.
[12] After considering the evidence in its totality, the Regional Magistrate made the
following findings:
That th ere may have been discrepancies in the evidence of the st ate
witnesses , but none concerned material aspects of the case;
That the witnesses corroborated each other on material aspects of the case;
That the version of the appellant was not reasonably possibly true in so far as
it contradict ed that of the state an d stood to be rejected.
[13] The appeal against conviction is premised on the grounds inter alia that: The
trial court erred in accepting the veracity of the evidence of the state in
circumstances where the standard thereof was of a poor quality and
contr adictory in material respects.
The magistrate provided no basis in law or fact why the version of the
appellant stood to be rejected as not being reasonably possibly true.
[14] It is so that the trial magistrate did not give in depth reasons why she was of
the view that appellant’s version was not reasonabl y possibly true and therefore
stood to be rejected. I also take note of authorities referred to by appellant’s counsel
in this regard. It is however trite that in a situation where the magistrate ha s not fully
recorded her reasons for judgment, the court on appeal or review is obliged to
consider the issues afresh1. In S v Luzipho2 the magistrate had delivered a terse
judgment and rejected appellant’s version and accepted the evidence of the state.
On appeal, the court had this to say:
‘[9] Our courts have on several occasions addressed the fundamental
importance of a trial court, whether a lower or higher court, furnishing reasons
for their decisions. The failure to set out the findings of fa ct and to furnish
reasons for its judgment places an appeal or reviewing court at a
disadvantage in adjudicating the matter.
[10] In S v Frazenb urg and Others it was said:
‘It is clearly in the interests of justice that a Judge, either sitting alone or
with assessors, should give reasons for the finding of the trial Court‒ S
v Immelman 1978 (3) SA 726 (A) at 729A -B and the cases there cited.
This is now enshrined in s 146 of the Criminal Procedure Act 51 of
1977, which imposes on a trial Judge the duty to g ive the reasons for
the decision or the finding of the Court on questions of fact, including
where the Judge sits with an assessor or assessors and there is a
difference of opinion, the reasons for the decision of the member of the
Court in the minority. T he importance of complying with this duty was
recently emphasised by Howie JA, as he then was, in S v Calitz en 'n
Ander 2003 (1) SACR 116 (SCA) in para [12] , when he said:
“Hoe dit ook al sy, dit moet beklemtoon word dat die behoorlike
beskerming, enersy ds, van 'n appellant se grondwetlike reg tot
appèl en, andersyds, die gemeenskap se belang dat oortreders
behoorlik gestraf word, van 'n regterlike amptenaar vereis dat
deeglike aandag gegee word aan die formulering en
verstrekking van vonnisredes. Daarso nder word gesonde
strafregpleging belemmer.”’
1 See Commentary on the Criminal Procedure Act Du Toit et al Volume 1 21 -17 and the authorities
cited therein.
2 2018 (1) SACR 635 ECG at [9].
[11] These remarks are, in my view, equally apposite to magistrates whose
obligation to furnish reasons for a decision or finding is enshrined in s 93 ter(3)
of the Magistrates’ Courts Act 32 of 1944. As was no ted in Frazenburg in the
absence of any or proper reasons, the appeal court‒
‘(a) has to do its best on the material on record; (b) cannot proceed on
the assumption that there was no misdirection or irregularity in the
process of reaching the decision that was reached by the Court a quo ;
(c) cannot assume that the Court a quo had cogent reasons for
seemingly accepting the witnesses who implicated the appellants; and
(d) should have regard only to the question of the onus of proof once
all the relevant evide nce had been examined to see whether there is
any doubt as to which version is acceptable’.
In S v Kalogoropoul os,3 likewise, the trial court had not given reasons for findings
made. The court had this to say:
‘His failure to do so has caused needless pr oblems for all concerned in the
appeal. In this unfortunate state of affairs, we are called upon to consider
appellant’s defence afresh, in the light of the evidence on the record. ’
[15] That the magistrate went through the evidence with a fine tooth comb cannot
be doubted as can be seen for her summation of the evidence. She was well
conversant with the onus of proof applicable in criminal cases as is apparent also
from her examination of the authorities in this regard. So was she cognisant of the
need to approach the evidence of an identification witness with caution. She went on
to analyse complainant’s evidence in this regard, in particular her ability and
opportunity to observe the appellant. Regarding appellant’s evidence, she noted first
that app ellant’s co -accused was also in attendance at the party that evening,
according to the appellant. Secondly, that his wife, even though there were
approximately 12 people does not recall whether his co -accused was in attendance.
3 1993 (1) SACR 12 (A)
[16] It is noteworthy that according to the appellant he gave his co -accused a lift
home after the party as they stayed in the same area, Kensington. In my view, this
serves to corroborate complainant’s evidence that they were together that evening. A
settled principle of our law i s that a court of appeal is not at liberty to depart from the
trial court’s findings of fact and credibility, unless they are patently wrong. This
principle had also been re -stated in S v Francis4 where the court held that the
powers of a court of appeal to interfere with the findings of fact of a trial court are
limited. In the absence of any misdirection, the court’s conclusion including its
acceptance of a witness’s evidence is presumed to be correct. In order to succeed,
the appellant must convince the appeal court on adequate grounds that the trial court
was wrong.
[17] I am inclined to agree with the court a quo that there were no material
contradictions in the evidence of the state witnesses warranting the rejection of the
evidence for the state. In my view, complainant’s evidence was clear and satisfactory
in all material respects, both in relation to her being a single witness as far as rape is
concern ed and as far as the identification of the appellant is concerned . Upon
examining the record of proceedings, I am unable to say that the trial court’s findings
are vitiated by irregularity or that the magistrate’s findings are patently wrong.
[18] The app ellant raised an alibi as a defence. It is trite that evidence relating to
an alibi is to be viewed in light of the totality of the evidence and not in isolation.5 The
magistrate noted that appellant only disclosed his alibi during his evidence in chief. It
is also noteworthy that appellant’s defence witness, his wife, could not recall whether
erstwhile appellant attended the party that was held at her home that evening. There
were only about 12 people at the party. According to the appellant, he offered f ormer
second appellant a lift as they were residing in the same area. It therefore sounds
strange that appellant’s wife would not recall if he was in attendance or not. And as
indicated earlier, the fact that appellant and his co -accused were in each other ’s
company during that evening lends some credence to complainant’s evidence. This
4 1991 (1) SACR 198 A.
5 S v Malefo & Andere 1988 (1) SACR 127 (W) 158 a -e. See also R v Hl ongwane 1959 (3) SA 337 A
340 H – 341 B.
in my view suggests that appellant’s version is not reasonably possibly true.
Otherwise, how would complainant have known they were together that evening.
[19] It is often said that it is difficult to see how a defence can possibly be true if at
the same time the state’s cases viewed in the totality of the evidence, with which it is
irreconcilable , is acceptable. See in this regard S v Van Der Meyden6 where the
court had this to say:
‘In order to convict, the evidence must establish the guilt of the accused
beyond reasonable doubt, which will be so only if there is at the same time no
reasonable possibility that an innocent explanation which has been put
forward might be true. The two are inseparable, each being the logical
corollary of the other. ’
And later at page 449 g -h the following is stated:
‘It is difficult to see how a defence can possibly be true if at the same time the
State's case with which it is irreconcilable is 'completely acceptable and
unshaken'. The passage seems to suggest that the evidence is to be
separated into compartments, and the 'defence case' examined in isolation, to
determine whether it is so internally contradictory or improbable as to be
beyond the realm of reasonable possibility, failing which the accused is
entitled to be acquitted. If that is what was meant, it is not correct. A court
does not base its conclusion, whether it be to convict or to acquit, on only part
of the evidence. The conclusion which it arrives at must account for all the
evidence.’
[20] In my view, the magistrate did not misdirect herself in convic ting the appellant.
The appeal against conviction can therefore not succeed .
[21] Accordingly, the appeal against conviction is dismissed.
6 1999 (1) SACR 447 at 448 (g).
_______________
N G BESHE
JUDGE OF THE HIGH COURT
ZILWA J
I agree.
_______________
P ZILWA
JUDGE OF THE HIGH COURT
APPEARANCES
For the Appellant : Mr. R. P. O’Brien
Instructed by : O’BRIEN INC.
29 Bird Street
Central
GQEBERHA
Ref.: Mr. O’Brien
Tel.: 041 – 582 1309
For the Respondent : Adv: M. M. Van Rooyen
Instructed by : DIRECTOR OF PUBLIC PROSECUTIONS
94 High Street
MAKHANDA
Ref: Mrs Turner
Tel.: 046 – 602 3000
Date Heard : 9 October 2024
Date Reserved : 9 October 2024
Date Delivered : 8 April 2025