IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CA&R 51/2023
In the matter between:
SONGEZO MTETANDABA Appellant
and
THE STATE Respondent
_____________________________________________________________ _________
JUDGMENT
______________________________________________________________ ________
RUSI J
[1] The appellant was convicted of rape in contravention of section 3 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 ( SORMA ) by
the Mt Frere Regional Court on 09 June 2022 and sentenced to undergo 10 years ’
imprisonment .
[2] The sentence imposed on the appellant is the minimum sentence prescribed for
this type of of fence in terms of section 51(2) of the Criminal Law Amendment Act 105 of
1997 (the Act). He now appeals against his conviction and sentence.
[3] His application for leave to appeal against his conviction and sentence was
refused by the court a quo , whereupon he petitioned the Judge President of this
Division for such leave. This appeal is with the leave of this Court .
[4] The appellant was legally represented during the proceedings against him in the
court a quo . In this Court , he was represented by Mr Dorfling , and Ms Mbunye
represented the respondent.
A preliminary issue
[5] The respondent’s heads of argument were filed out of time and Ms Mbunye
applied for condonation of th eir late filing. Th at application was granted, unopposed by
the appellant.
The factual background
[6] On 03 March 2019, the complainant had gone to a local tavern called ‘ Zetman ’ to
buy alcohol . She left the tavern with the appellant who took her to his home where he
had sexual intercourse with her. The complainant a sserted that the sexual intercourse
was without her consent. She subsequently reported to her boyfriend named Thabiso ,
her friend nam ed ‘Sito’ or ‘Siko’,1 and her sister, that she was raped by the appellant.
[7] Having reported the alleged rape, she went to the Mt Frere police station where
she laid a criminal charge of rape against the appellant. From the police station, she
went to Madzikane H ospital where she was examined by Seitlhelo who compiled a
medico -legal report detailing his clinical observations and conclusio ns relating to his
examination of the complainant.
1 The record of proceedings in the court a quo interchangeably makes reference to the complainant’s
friend as “Sito” or “Siko”.
[8] Even though the medico -legal report indicates that vaginal swabs were taken
from the complainant, the record before us reveals that no results of a scientific analysis
of the vaginal swabs were relied on at trial. This must have been because the appellant
admitted having had sexual intercourse with the complainant on the night of 03 March
2019, but contended that it was consensual .
The grounds of appeal
[9] In appealing against his conviction, the appellant contends that the court a quo
erred in the following respects:
(i) Failing to give reasons for rejecting the appellant’s version as not being
reasonably possibly true.
(ii) Adopting the approach that it adopted in rejecting the appellant’s version ,
which is indicative of lack of impartiality on its part .
(iii) Failing to take into consideration that even where the version of the state
stands on a completely acceptable and ‘unshaken edifice ’, a court must still
investigate the defence case in order to discern whether it is demonstrably or
inherently so improbable that it ought to be rejected as false.
[10] As regards his sentence, these are the grounds of appeal that the appellant
relies on:
(i) That t he court a quo erred in finding that there are no substantial and
compelling circumstances present which would warrant deviation from the
prescribed minimum sentence ; and
(ii) It erred in not showing mercy in sentencing the appellant.
[11] Below I set out a summary of the evidence t hat was adduce d at the trial in the
court a quo .
The evidence of the complainant
[12] The complainant told the court a quo that during the evening of 03 March 2019,
she went to Zetman’s tavern to buy alcohol. Before she made her purchase at the
tavern , she was assaulted by a person named Yongama. The appellant came to her
rescue and told her that he would take her to her boyfriend, Thabiso . She accepted this
gesture and went along with the appellant.
[13] Before the rape incident, s he did not personall y know the appellant but used to
see him next to ‘Mashajize’s homestead . She did not know his name but saw it on a
‘student card’ that had his photo which was affixed on his clothing on the chest area. It
is not clear from the complainant’s evidence at wha t stage she saw this ‘student card’.
Asked in cross -examination whether she knew that the appellant was Thabiso’s friend,
she testified that she used to see him in Thabiso’s company.
[14] The complaint went further and told the court that while walking with the
appellant from the tavern , she noticed that he was taking a route that took them
elsewhere than to the home of Thabiso. She asked him why he was not taking the path
to Thabiso’s home . The appellant responded that Thabiso had in fact asked him for a
place to sleep that night , hence , they would go to his place and not to Thabiso’s home .
She accepted this explanation and went along with the appellant to his home believing
that that is w here Thabiso would be .
[15] She did not find Thabiso at the appellant’s home upon their arrival, and she
asked the appellant where he was. The appellant told her that Thabiso was in fact on
his way there. It was at that point that the appellant be came aggressi ve towards her ,
ordered her to undress herself and to sit on the bed. He used a knife to threaten her,
and she complied with the instruction to sit on the bed but did not undress herself.
[16] The appellant switched off the li ght of the room . In response , she stood up in
order to switch the light back on, but the appellant blocked her and pushed her onto the
bed. H e climbed on top of her , took off her trousers and panty with one hand while
pressing her down on her chest with the other. They struggled as she resist ed being
undressed, telling him to stop what he was doing. The appellant silenced her by placing
his hand over her nose and mouth and poked her ears and ribs wit h the knife but
caused her no injury. He threatened to kill her i f she screamed. Having undressed
himself as well , he penetrated her with his penis vaginally without her consent and
without using a condom even though there was a condom next to the bed.
[17] She felt pain as the appellant raped her and asked to urinate . The appellant told
her to urinate i n a washing basin that was placed in the room. While urinating, she
heard the appellant snoring. She took that opportunity to escape and took with her th e
knife that the appellant used to threaten and subdue her. On the way out she observed
that there were other people in the house. It was around 12 midnight when the rape
took place.
[18] After leaving the appellant’s home, she proceeded to Thabiso ’s home where she
jumped over the gate and went to r eport the rape to Thabiso. Thabiso told her that he
did not know what to do with the report and instead took her to her friend ‘Sito’ or ‘Siko ’.
She slept over at Sito’s /Siko’s place. In the morning, she wen t to her home where she
told her sister about the rape, after which she went to the police station where she laid a
charge of rape . From the police station she was conveyed by the police to Madzikane
Hospital where she was examined by Dr Seitlhelo. It was the complainant’s evidence
further that when she left the appellant’s home after the rape up to the time of
examination by Dr Seitlhlelo, she had not bathed.
[19] In the course of her appearances in court, t he appellant requested her to
withdraw the rape charge and sent someone else to her to convey the same request .
She denied the version of the appellant that was put to her during cross -examination
that she was the appellant’s girlfriend . She also denied that she consen ted to have
sexual intercourse with the appellant and that she was visiting his home for the second
time on that day as his girlfriend.
[20] The medico -legal report that Dr Seitlhelo compiled in relation to the
complainant’s examination (the J 88 report) was admitted in evidence by agreement
between the prosecution and defence without the evidence of the treating doctor.
According to Dr Seitlhelo, the complainant was traumatized. Dr Seitlhelo recorded the
manner of causation (history) of the rape on the J8 8 report as follows:
“27 yrs female victim brought by Mt Frere Police Officer. Victim reports being
raped by her boyfriend’s friend at 02h30 at Badibanise location. The victim
narrated that they met at the tavern with the perpetrator who said he is taking her
to her boyfriend’s house but instead took her to his house and raped. The
perpetrator used a condom and took off at times. The perpetrator threatened the
victim by putting a knife on the [word no t legible] .”
[21] Under “clinical evidence of drugs or alcohol ”, the doctor records “admitted to
using alcohol”. It is further recorded in the J88 report that “sperm/ semen was collected
for from the complainant’s vagina for analysis ”. This concluded the ca se for the
prosecution.
The evidence of the appellant
[22] The appellant’s version was that he found the complainant and her friends at
Zetman’s tavern around 20h00 and they were drinking alcohol. She asked him to buy
her alcohol which he acceded to . They made an agreement to leave together
afterwards . At some stage h e indicated to the complainant that he had had enough
alcohol and therefore it was oppor tune for them to leave. He knew that the complainant
was Thabiso’s girlfriend. The y went to his house by agreement and on arrival there they
had consensual sexual intercourse. He used a condom during the intercourse as the
complainant requested so.
[23] Around 02 h00, Yamkela Masentse , arrived to ask for a cigarette. He and
Yamkela are not friends, but he knows him from his neighbourhood . According to the
appellant, Yamkela gained knowledge of his relationship with the complainant when he
came to ask him for a cigarette . He found him a nd complainant in bed. The complainant
was a bit nervous when Yamkela arrived, and he assumed that it was because Yamkela
was Thabiso’s friend . He surmised that complainant feared that Yamkela would inform
Thabiso of the ir affair. While he and Yamkela smoked, Yamkela asked him why he was
sleeping with Thabiso’s girlfriend and his re sponse was that they had a secret love
affair.
[24] After Yamkela’s departure he and the complainant had sexual intercourse for the
second time and conversed . The complainant asked him for money telling him that she
wanted to pay rent and buy groceries. Their interaction turned sour when he could not
give the complainant the money that she asked for . They slept around 03h00 to 04h00 .
When h e woke up, the complainant had left, and he does not know when she left.
According to the appellant, this was not the first time that the complainant asked him for
money after a sexual encounter with her. His affair with the complainant was
clandestine since he knew that she was Thabiso’s girlfriend. He denied that he took the
complainant to his home under the false presence that he was taking her to Thabiso’s
home.
[25] The court a quo further heard from the appellant that Thabiso phoned him the
next day and advised him to give the complainant what she wanted because ‘she was
going to the police’. After the appellant’s testimony, Yamkela was called as his witness.
[26] When Yamkela gave evidence he first told the court a quo that he did not know of
a love relationship between the complainant and the appellant. He confirmed that the
appellant and complainant were at Zetman’s tavern during the night of the alleged rape,
and they were drinking. He further told t he court a quo that while at the tavern, the
appellant and complainant would dance together at times and the mood was jovial. The
appellant would also accompany the complainant outside whenever she wanted to
relieve herself. He further explained that t he women at the tavern usually ask ed males
to accompany them when they want ed to go outside to urinate, and t he appellant was
not the only one who accompanied the complainant outside to urinate .
[27] Yamkela confirmed that he went to ask the appellant for a cigarette and found
him and the complainant in bed naked. He and the appellant went outside to smoke,
and he asked him why he was sleeping with the complainant when she was Thabiso’s
girlfriend. His response was that they had a secret affair. In his observation the
complainant was joyful and showed no signs of discomfort when she fo und her and the
appellant in bed. He also observed condoms next to the bed.
The finding s of the court a quo
[28] The magistrate gave a summary of the evidence adduced, and having set out the
applicable principles of law on the evaluation of evidence , he found that the appellant’s
version of the circumstances under which he had sexual intercourse with the
complainant was not reasonably possibly true.
[29] He remarked that it was improbable that the complainant left the appellant’s
room , took the trouble of reporting the rape to her boyfriend and the police, and even
subject ed herself to an examination by a doctor in her private parts all because, on the
appellan t’s version, he refused or failed to give her money after the sexual intercourse
when she demanded it.
Submissions on appeal
[30] In addressing the court a quo ’s misdirection in evaluating the evidence, which the
appellant contends for, Mr Dorfling submitted that the court a quo impermissibly
accepted the J88 report as confirmation of the fact that the complainant was raped.
[31] It was his submission in this r egard that since the complainant gave no evidence
pertaining to that report, which was not the first report she made, and the circumstances
under which it was made, it was not available to the court to accept it as proof of its
contents. The purpose of a p revious consistent statement, so the submission went, is to
rebut consent and to prove consistency.
[32] It is further submitted in the appellant’s heads of argument that the complainant’s
testimony as a single witness was contradictory regarding her fami liarity with the
appellant, and therefore, it did not meet the standard that would qualify as the basis of
the appellant’s conviction.
[33] As regards the alleged state of sobriety of the complainant at the time of the
rape, it was submitted that if, as s uggested by the prosecution , the appellant could not
have obtained consent from the complainant since she was drunk, then, the same state
of drunkenness ought to have adversely affected the weight of her evidence.
[34] Mr Dorfling further submitted that the court a quo committed a misdirection in not
giving reasons why it rejected the version of the appellant as against that of the
complainant who was a single witness. He took the view that the court’s approach in
making a finding that the appellant’s guilt was proved beyond reasonable doubt was
flawed and indicative of lack of impartiality as it failed to take into account his version in
circumstances where there was a reasonable possibility that it was true. This
submission was made in rel ation to the court a quo ’s remarks regarding the
improbability of the appellant’s version based on the circumstances under which she left
the appellant’s home.
[35] Concerning sentence, it was submitted that the court a quo ought to have found
that the mit igating factors that were presented on behalf of the appellant, taken
cumulatively with the circumstances of the offence, constituted substantial and
compelling circumstances w hich justified a lesser sentence than the one imposed .
[36] On behalf of the respondent, Ms Mbunye submitted that it was incorrect that the
court a quo accepted the J88 report as evidence of a previous consistent statement in
the context envisaged in section 58 of SORMA. In developing this argument, she further
submitted that the court a quo made reference to the J88 report as part of the evidence
that was adduced by the state, and its admission was , in any event, in terms of section
212(4) of the Criminal Procedure Act 51 of 1977 as amended (the CPA).2
[37] It was further submitted on behalf of the respondent that the contention that the
court a quo failed to give reasons for its rejection of the appellant’s version cannot be
sustained in that the record of the proceedings in the court a quo reveal s that the court
embarked on a careful evaluation of the evidence and weighed the version of the
appellan t against the probabilities. In this regard, Ms Mbunye referred to Director of
Public Prosecutions: Limpopo v Molope and Another ,3 in which the Supreme Court of
2 Section 212(4) of the CPA provides as follows: ‘Whenever any fact established by any examination or
process requiring any skill —
(i) in biology, chemistry, physics, astronomy, geography or geology;
(ii) in mathematics, applied mathematics or mathematical s tatistics or in the
analysis of statistics;
(iii) in computer science or in any discipline of engineering;
(iv) in anatomy or in human behavioral sciences;
(v) in biochemistry, in metallurgy, in microscopy, in any branch of
pathology or in toxicology; or
(vi) in ballistics, in the identification of fingerprints or body prints or in the examination of disputed
documents,
is or may become relevant to the issue at criminal proceedings, a document purporting to be an affidavit
made by a person who in that affid avit alleges that he or she is in the service of the State or of a
provincial administration or any university in the Republic or any other body designated by the Minister for
the purposes of this subsection by notice in the Gazette , and that he or she has established such fact by
means of such an examination or process, shall, upon its mere production at such proceedings be prima
facie proof of such fact: Provided that the person who may make such affidavit may, in any case in which
skill is required in chemistry, anatomy or pathology, issue a certificate in lieu of such affidavit, in which
event the provisions of this paragraph shall mutatis mutandis apply with reference to such certificate. ’
3 2020 (2) SACR 343 (SCA), para 55.
Appeal held that it does not follow that because the judgment of the trial court does not
ment ion certain aspect s, they were not considered .
[38] On the score of the court a quo ’s finding that the appellant’s version was not
reasonably possibly true, Ms Mbunye highlighted the appellant’s failure to cross -
examine the complainant on the crucial aspe cts of the case . She submitted that this
undermined the credibility of the appellant’s version, hence , the court a quo was entitled
to reject his version as a recent fabrication. Added to this, so the submission went, w ere
the contradictions inherent in the versions given by the appellant and his witness,
Yamkela on the events that took place at Zetman’s tavern before the departure of the
appellant with the complainant.
[39] Regarding the appeal against sentence, Ms Mbunye submitted that in as much
as the prosecution held the view that a sentence lesser tha n the one prescribed in terms
of the Act was appropriate in the pr esent case, the court a quo was not bound by th ose
submissions.
[40] The court a quo , said Ms Mbunye , evaluated the personal circumstances of the
appellant, the offence and interests of society, and guided by the Act and relevant legal
principles as expounded in case law, found that there existed no substantial and
compelling circumstances which justified a deviation from the prescribed sentence of 10
years’ imprisonment. Accordingly, so the submission continued, the court a quo correctl y
exercised its discretion when it imposed the sentence sought to be appealed against.
The law
[41] It is settled law that a court of appeal will be hesitant to interfere with the factual
findings and evaluation of the evidence by a trial court and will on ly interfere where the
trial court materially misdirected itself insofar as its factual and credibility findings are
concerned.4As held in S v Francis5:
4 R v Dhlumayo and anothe r 1948 (2) SA 677 (A).
“The powers of a court to interfere with the findings of fact of a trial court are
limited. In the absence of any misdirection the trial court’s conclusion, including
its acceptance of a witness’s evidence, is presumed to be correct. In order to
succeed on appeal, the appellant must therefore convince the court of appeal on
adequate grounds that the trial court was wrong in accepting the witness's
evidence a reasonable doubt will not suffice to justify interference with its
findings. Bearing in mind the advantage which a trial court has of seeing, hearing
and appraising a witness, it is only in excep tional cases that the court of appeal
will be entitled to interfere with a trial court’s evaluation of oral testimony.”
[42] In the absence of demonstrable and material misdirection by the trial court, its
findings of fact are presumed to be correct and wi ll only be disregarded if the recorded
evidence shows them to be clearly wrong.6
[43] It bears restating that t he standard of proof against which the court evaluates
evidence in a criminal case is that of proof beyond reasonable doubt. All that the
accused need s do in order to displace a case prima facie made against him by the
prosecution is to put forward a version that is reasonably possibly true. In this regard,
the Court, in S v Shackell7, held 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 pro of
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
51991 (1) SACR 198 (A) at 198j – 199a.
6 S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645e -f. See also: S v Monyane and Others 2008
(1) SACR 543 (SCA) at para 15; S v Francis 1991 (1) SACR 198 (A) at 204e.
7 [2001] 4 All SA 279 (A), para 30.
probabilities. But it cannot be rejected merely because it is improbable; it can
only be rejected on the basis of inherent probabilities if it can be said to be so
improbable that it cann ot reasonably possibly be true. On my reading of the
judgment of the Court a quo its reasoning lacks this final and crucial step.’
[44] In S v Trainor8, it was held that in determining whether the accused ’s version is
reasonably possibly true, the court must consider the conspectus of all the evidence.
Evidence that is reliable should be weighed alongside such evidence as may be found
to be false. Independently verifiable evidence, if any, should be weighed to see if it
supports any of the evidence tendered. In considering whether evidence is reliable, the
quality of that evidence must , of necessity, be evaluated, as must corroborative
evidence, if any. Evidence, of course, must be evaluated against the onus of any
particular issue or in respect of t he case in its entirety.9
[45] I must interpose to state that o ne of the instances of the procedural inadequac ies
in the South African common law regarding sexual offences, in particular, rape, was how
it dealt with the absence of a previous consistent statement made by a rape victim
regarding the alleged rape , or the delay in making such a statement . The common law
position in this regard was influenced by the regrettable notion that complainants in
sexual offences were more likely to lie than other complainants, and therefore their
evidence was to be treated with circumspection.
[46] SORMA which codifies the common law on sexual offences, was an attempt by
the legislature , inter alia to prevent secondary victimization of rape victims in various
sectors including the criminal justice system . To this end, it provides , in section 58,
among others, that evidence r elating to previous consistent statements by a
complainant shall be admissible in criminal proceedings involving the alleged
commission of a sexual offence: Provided that the court may not draw any inference
only from the absence of such previous consisten t statements.
8 2003 (1) SACR 35 (SCA) .
9 Id, para 9.
[47] When it comes to sentencing, it must be emphasized that it is a matter for the
discretion of the trial court, which discretion will only be interfered with on appeal if it has
not been exercised properly and jud iciously , the test being whether the sentence meted
out is vitiated by an irregularity, or a misdirecti on, or is disturbingly inappropriate.10
[48] The Criminal Law Amendment Act 105 of 1997 prescribes discretionary minimum
sentence to be imposed on persons convicted of various categories of serious offences
including rape. These prescribed sentences may b e departed from only where there are
in existence in a given case substantial and compelling circumstances justifying the
deviation. This is in terms of section 51(3) of the same Act.
[49] In the discussion that follows I consider whether there are any gro unds for this
Court to interfere with the court a quo ’s findings of fact and the appellant’s conviction
and if not, whether , in any event, the court a quo committed any misdirection in
sentencing the appellant warranting this Court’s interference with the sentence of 10
years’ imprisonment that it imposed.
Discussion
[50] It is by now an incontrovertible fact that the offence of rape is a particularly
difficult one for the prosecution to prove by reason of the fact that it is usually committed
surreptitiously with only the victim and the perpetrator at the scene. This perforce
requires of the prosecution to be meticulous in its presentation of evidence on which it
seeks to rely in seeking the conviction of the accused. In this regard the credibility of the
evidence given by and on behalf of the complainant i s crucial in order to found a
conviction against the accused .
10 S v Rabie 1974 (4) SA 855 (A) at 857 E; see also S v Malgas 2001 (1) SACR 469 (SCA) at para 12.
[51] The court, on the other hand , is required to consider the evidence holistically in
making its finding that the guilt of the accused has been proven beyond reasonable
doubt .11
[52] What is clear from the record of proceedings before us is that the court a quo
was faced with two conflicting versions. In assessing the evidence before it, it was
enjoined to weigh all the elements that point towards the guilt of the appellant against
those which are indicative of his innocence , taking proper account of inherent strengths
and weaknesses, probabilities and improbabilities on both sides . Having done so, the
court was required to decide whether the balance weighs so heavily in favour of the
State as to exclude any reasonable doubt a bout the appellant ’s guilt .12
[53] The judgment of the court a quo is by no means a perfect one and this is not
something unheard of, for there is indeed no such a thing as a perfect judgment which
encompasses every conceivable aspect of the case. With this said, it is discernible from
the record before us that the court a quo was alive to the fact that the complainant was
a single witness whose evidence was to be treated wit h caution not because she was a
complainant on a rape charge, but because this is the general position in law regarding
evidence of a single witness . It is also accepted, as a trite principle of the law, that the
exercise of caution must not be allowed to displace the application of logic or common
sense.13 The court must still consider the totality of evidence in deciding whether the
single witness’ evidence is credible.
[54] The complainant’s evidence is far from being perfect. She gave the court the
impression that she had not consumed alcohol when she left the tavern with the
appellant. Dr Seitlhelo’s medico -legal report , on the other hand, makes mention of the
fact that ‘she admitted using alcohol ’. A literal interpretation of this recordal would be
that this was the general position, i.e. the complainant generally took alcoholic
beverages. However, considered in context, when regard is had to the section of the
11 S v Van der Meyden 1999 (1) SACR 447 (W) at 448.
12 Tshiki v S (358/2019) [2020] ZASCA 92 (18 August 2020) para 23 .
13 S v Sauls and Others 1981 (3) SA 172 (A) at 180 G – H.
report wherein this is recorded by the Dr Seitlhelo, viz, “clinical evidence of drugs and
alcohol”, the recordal must have been in relation to her intake of alcohol prior to her
medical examination.
[55] An issue that arises from this recordal is that it ought to have been canvassed
with the c omplainant, at least, what was meant by Dr Seitlhelo when she recorded that
“she admitted to using alcohol” considering her testimony that when she left the tavern
after her assault by Yongama , she had not consumed alcohol. It is regrettable that this
was not done.
[56] On the appellant’s version, taken in its true context, even though the complainant
had taken alcohol, she was still able to appreciate what was happening around and
concerning her, hence according to him, she was just tipsy.
[57] This being so, the prosecutor, for reasons that are difficult to fathom, put to the
appellant that “he had sexual intercourse with a drunk person”, and continued with this
line of cross -examination even in circumstances where the complainant herself had told
the cou rt that she had not consumed any alcohol. This line of cross -examination was at
no stage corrected by the court, and regrettably , it also did not express itself on what it
made of it in its judgment .
[58] I acknowledge the need for deference to the court a quo ’s factual findings, but
this Court is not bound by the court a quo ’s evaluation of evidence.14 In as much as the
court a quo made no finding in its judgment on the complainant’s state of sobriety and
its effect on the consent that the appellant alleged she gave him to have sexual
intercourse with her, it is necessary to mention that the appe llant’s own evidence was
that the complainant was not very drunk in addition to the complainant’s evidence that
she had not drunk alcohol when Yongama assaulted her . It is also for that reason that it
is difficult to understand the suggestion that the appellant had sexual intercourse with a
drunk person . In its simplest form ulation , the purpose of cross -examination is to test the
14 Marx v S [2005] 4 All SA 267 (SCA) at 326b.
credibility of a witness and elicit evidence that will enable the court to have appreciation
of all the facts in establishing the truth .
[59] A further inconsistency in the evidence o f the complainant relates to the time of
the rape as recorded by Dr Seitlh lelo under the ‘history ’ to the rape. It appears from
what Dr Seitlhlelo recorded that the complainant narrated that she was raped at 02h30
on 03 March 2019. This was not dealt with during the trial in the court a quo , either by
the prosecution, the defence or the magistrate.
[60] With this said, the discrepanc ies between the evidence of the complainant and
the recordal of Dr Seit lhelo regarding the time of r ape and her consumption of alcohol,
cannot, on their own, lead to a conclusion that the complainant’s entire testimony lacked
credibility. I elaborate below.
[61] The J88 report was admitted in evidence by consent between the prosecution
and the defence. T here was no indication by the defence of its desire to cross -examine
Dr Seitlhelo on what she recorded on the J88, nor was the complainant cross -examined
on the time that she appeared to have given to the doctor as the time of rape. This, as I
will demonstrate later in this judgment, is besides the fact that the version that the
appella nt later advanced regarding the event s that led to h im taking the complainant to
his home and the circumstances under which he had sexual intercourse with her, was
not put to the complainant.
[62] Apart from this, the complainant’s version that she had n ot yet consumed alcohol
when the assault by Yongama took place was not challenged in cross -examination. For
these reasons, these discrepancies I have afore enumerated pale into insignificance.
[63] The complainant’s evidence in chief regarding her familia rity with the appellant
was that she did know him or his name before the rape incident . It was only in cros s-
examination that she was asked if she was aware that he was Thabiso’s friend, to which
she answered that she used to see him in Thabiso’s company. To my mind, there is a
difference between knowing a person by sight and knowing that person closely . The
issue of the complainant’s prior familiarity with the appellant was not traversed in her
cross -examination, for what it was worth.
[64] It therefore does not assist the appellant to contend that the complainant gave
contradictory evidence in this regard without any basis being laid for this assertion.
Furthermore, i t cannot be said that Yamkela’s evidence is corroborat ion of what the
appel lant told the court a quo regarding the alleged secret affair between him and the
complainant. Yamkela did not have independent knowledge of any relationship between
the appellant and the complainant besides what he was told by the appellant while they
were smoking outside after, on his version, he found them in bed naked. He confirmed
as much when he told the court a quo that he had no prior knowledge of such a love
relationship between them.
[65] Not that it would be a defence , in any event, that the appellant and the
complainant were in a love relationship. Section 56(1) of SORMA confirms this position
by providing that whenever an accused person is charged with an offence under section
3, 4, 5, 6 or 7 , it is not a valid defence for that acc used person to contend that a marital
or other relationship exists or existed between him or her and the complainant.
However, t he relevance of the existence or otherwise of a love relationship between the
appellant and the complainant , in the context of t he present case, is in regard to
probabilities. This, in my view , is what the court a quo considered in the following
excerpt of the record: (sic)
‘Then one had to ask himself, why is the complainant falsely implicating the
accused? If they were secret lovers, why did they part ways in that fashion? If
they were secret lovers as the accused said, why did he . . . [inaudible] the same,
he said the sam e Sunday she went to the police station to report? This is a very
serious offence of rape. Could it be said it is because the complainant demanded
money and the accused person had no money and this is why complainant had
to undergo all these steps, reporti ng to his boyfriend, reporting to the police
station and all these medical J88, her private part being examined by the doctor
because she did not get the money she demanded from the accused? Why? Is it
a reasonably possible true story or version of the acc used?’
[66] I must at this point deal with the ground of appeal that the magistrate did not
state why he rejected the evidence of the appellant. After his evaluation of the evidence
given by all the witnesses , the magistrate pronounced that the version pro ffered by the
appellant was not reasonably possibly true , hence his conviction. The approach
followed by the court a quo cannot be faulted when regard is had to the fact that the
court a quo was, as a matter of law, entitled to measure the evidence adduced before it
against the probabilities in order to determine where the truth lies.
[67] I agree with the submission made on behalf of the respondent that the fact that
the magistrate did not enumerate his reasons for rejecting the appellant’s version
individually, does not mean that he did not consider his version in the light of the
conspectus of the evidence before him before making the finding that it was implausible.
In any event, those reasons are discernible from the record of proceedings before us .
[68] On the appellant ’s own showing, the reason why the complainant laid the rape
charge against him was his failure or refusal to give her money wh en she demanded it,
and this was not the first occasion on which the complainant demanded money after a
sexual encounter with him. I am unable to agree with the submission made on behalf of
the appellant that it is , as a general rule, unfair to expect the accused to speculate
reasons why a criminal charge has been laid against him or her and to draw a negative
inference against that accused on the issue of credibility where those reasons are not
convincing to the court . The holding of the court in S v Lotter ,15 a case that we were
referred to as authority for the submission made in the appellant’s heads of arguments
indicates otherwise.
15 2008 (2) SACR 595 (C) .
[69] In Lotter , Erasmus J, evaluat ed several cases where the accused ’s credibility
was impugned after failing to give an explanation as to the possible motive behind him
being falsely incriminated . In those cases,16 the accused had denied the commission of
those offences and there was not sufficient evidence from which their guilt could have
been inferred. Mr Lotter, as the accused, had been charged of rape and denied having
had sexual intercourse with the complainan t. There was no other corroborative
evidence of sexual intercourse which was placed before court. The complainant further
did not report the alleged rape timeously. The prosecutor in that case repeatedly asked
the accused to state the motive behind the com plainant falsely incriminating him. The
magistrate rejected his speculative reasons as ‘making no sense’. In criticizing the
magistrate’s approach, the court said:
‘In the circumstances of this case , the magistrate was not entitled to draw any
inference ad verse to the appellant’s credibility from the fact that he had offered
explanations as to the complainant’s possible motives which she found
unacceptable.’ (my emphasis)
[70] It follows from the above quoted passage that the circumstances of each case
and the conspectus of all the evidence ought to determine the appropriateness of
drawing an adverse inference on the credibility of an accused where the explanation he
or she gives as to the motive behind his/her incrimination in a criminal case is found not
to be convincing to the court . I hold the view that a ny explanation that the accused
furnishes is to be measured against what, in the exercise of logic, is probable and that
which is not , upon a holistic evaluation of all th e evidence.
[71] In the present case, the appellant admitted having sexual intercourse with the
complainant. He painted a picture of him and the complainant having reached an
16 S v Lesito 1996 (2) SACR 682 (O) at 687 H-I; Rex v Roga 1935 TPD 101 -102; R v Mthembu 1956 (4)
SA 334 at 335H – 336B.
agreement to leave the tavern together to his home. The Supreme Court of Appeal i n
Coko,17 interpreted ‘consent’ in the context of section 3 of SORMA as follows:
‘Turning to s 3 of the Sexual Offences Act, we first deal with the concept of
'consent' as defined in s 1(2) with special reference to the word 'agreement'. To
our mind, such a word entails the meeting of the minds of the willing participants
to engage in penetrative sexual intercourse. The Sexual Offences Act explicitly
requires that consent must be 'given consciously and voluntarily, either expressly
or tacitly by persons who have the mental capacity to appreciate the nature of the
act consented to. Moreo ver, for the consent to avail a person who commits a
penetrative sexual act, such consent must be based on true knowledge of the
material facts relating to the act in question.’
[72] No further details were placed before court for the purposes of establish ing the
alleged prior agreement between the appellant and the complainant apart from the
appellant’s assertion when he gave his version under oath (which was never put to the
complainant), that he and the complainant had a prior agreement to go to his home . It
was not unreasonable to ascertain from him the reasons why the complainant acted in a
manner that was inconsistent with that agreement by laying a charge of rape against
him. For these reasons, Lotter is distinguishable from the present case on the facts.
[73] The complainant was not confronted with the content and circumstances of the
alleged agreement to go with the appellant to his home and the rest of what the
appellant stated in his testimony rega rding the friendly encounter he had with her at the
tavern . These are crucial allegations which would establish that the complainant either
had an arrangement with the appellant that he would pay to her money for sexual
intercourse, or that the complainant , on two occasions extorted money from him. All of
this becomes important for the purposes of weighing up probabilities , among which
17 Director of Public Prosecutions, Eastern Cape, Makhanda v Coko (main and supplementary judgment)
(248/2022) [2024] ZASCA 59; 2024 (2) SACR 113 (SCA); [2024] 3 All SA 674 (SCA) (24 April 2024), para
55.
would be a determination whether the complainant was ad idem (of the same mind) with
the appellant regarding the reasons why he would take her to his home.
[74] I am alive to the fact that an accused’s failure to put his version to the state
witnesses does not automatically result in its rejection as a recent fabrication. In S v
Scott-Crossley18, the Court emphasized that the failure to put a version, even where it
should have been put, does not necessarily warrant an inference that the accused’s
version is a recent fabrication. It further affirmed what was held in S v Van As19 that the
circumsta nces of a given case will guide the court’s decision to draw an adverse
inference against an accused for failure to put a version to the state’s witnesses during
cross -examination.
[75] In the present case, the appellant sought to impeach the complainant’ s credibility
by stating that she cried rape after a sexual encounter (that only the two of them were
witness to) presumably to spite him for refusing or failing to give her money when she
demanded it.
[76] The Constitutional Court, in President of the Republic of South Africa and Others
v South African Rugby Football Union and Others ,20 explained the implications of failure
to cross -examine a witness as follows :
[61] The institution of cross -examination not only constitutes a right, it also
imposes certain obligations. As a general rule it is essential, when it is intended
to suggest that a witness is not speaking the truth on a particular point, to direct
the witness ’s attention to the fact by questions put in cross -examination showing
that the imputation is intended to be made and to afford the witness an
opportunity, while still in the witness box, of giving any explanation open to the
witness and of defending his or her character. If a point in dispute is left
18 S v Scott -Crossley (677/06) [2007] ZASCA 127; 2008 (1) SA 404 (SCA); 2008 (1) SACR 223 (SCA) (28
September 2007), para 26.
19 1991 (2) SACR 74 (W).
20 President of the Republic of South Africa and Others v South African Rugby Football Union and Others
(CCT16/98) [1999] ZACC 11 ; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999).
unchallenged in cross -examination, the party calling the witness is entitled to
assume that the unchallenged witness ’ testimony is accepted as correct. This
rule was enunciated by the House of Lords in Browne v Dunn and has been
adopted and consistently followed by our courts.
[62] The rule in Browne v Dunn is not merely one of professional practice but is
essential to fair play and fair dealing with witnesses. It is still current in England
and has been adopted and followed in substanti ally the same form in the
Commonwealth jurisdictions.
[63] The precise nature of the imputation should be made clear to the witness so
that it can be met and destroyed, particularly where the imputation relies upon
inferences to be drawn from other evidenc e in the proceedings. It should be
made clear not only that the evidence is to be challenged but also how it is to be
challenged. This is so because the witness must be given an opportunity to deny
the challenge, to call corroborative evidence, to qualify the evidence given by the
witness or others and to explain contradictions on which reliance is to be placed.
[64] The rule is of course not an inflexible one. Where it is quite clear that prior
notice has been given to the witness that his or her honesty i s being impeached
or such intention is otherwise manifest, it is not necessary to cross -examine on
the point, or where a story told by a witness may have been of so incredible and
romancing a nature that the most effective cross -examination would be to ask
him to leave the box.
[65] These rules relating to the duty to cross -examine must obviously not be
applied in a mechanical way, but always with due regard to all the facts and
circumstances of each case. But their object must not be lost sight of. Its p roper
observance is owed to pauper and prince alike. In the case of the President of
this country there is an added dimension. Not only are his personal honour and
dignity at stake. He, as head of state, is representative of all the people. That
being so, the rule needs to be observed scrupulously.
[77] I searched the record before us to ascertain if the complainant was confronted
with what, according to the appellant , took place at the tavern before she and the
appellant left. This relates, in particular, to what the appellant and Yamkela told the court
a quo that the complainant and the appellant had a prior friendly encounter at the tavern
and danced together , with the appellant even buying her alcohol. There is not a
discernible inkling from the complainant’s cross -examination regarding the appellant’s
intention to impugn her credibility regarding this aspect and the circumstances under
which he had sexual intercourse with her. Mr Dorfling ’s concession regarding the
appellant’s f ailure to put his version to the complainant was well made.
[78] In Mkhize and Others v S21 the Court restated the principle of law that it is the
duty of the cross -examiner to put all contested points to the witnesses in cross -
examination. It went further and held that a cross -examiner who fails to do so runs the
risk of having his witness criticized of recent fabrication when that witness later testifies.
Leaving contradictions, improbabilities or lies undisputed is dange rous. Failure to do so
would in appropriate cases lead to an adverse inference being drawn from the failure to
cross -examine on the contested issues .22
[79] Therefore, on the facts of the present case, i t was important that the appellant’s
version be put t o the complainant while she was in the witness stand, that she willingly
left the tavern with the appellant after the prior arrangement they made that they would
leave together and would both sleep at the appellant’s house. I say it was important
because i f the complainant’s version was accepted as the truth, it followed from the
appellant’s deviation from his undertaking that he was taking the complainant to the
safety of Thabiso’s presence that he had a pre -contrived plan to take advantage of her.
This in turn negates the appellant’s assertion that he and the complainant were lovers
21 Mkhize and Others v S (390/18) [2019] ZASCA 56 (1 April 2019).
22 Id, para 15.
and thus renders his version that he had agreed with the complainant that they would
go together to his home so improbable as to be false.
[80] It is rather surprising that the appellant told the court a quo that when Yamkela
arrived in his room the complainant appeared anxious or nervous presumably because
she feared that Ya mkela would tell her boyfriend Thabiso about their tryst, while
according to Yamkela, the complainant was joyful and showed no sign of discomfort.
This inconsistency is compounded by the fact that the complainant was not cross -
examined regarding the arrival of Yamkela while she was still in the appellant’s room.
Nor was it put to her that she and the appellant continued to converse and fell asleep
around 03h00 to 04h00.
[81] The appellant’s version was that when he woke up later that morning the
complainant was not there, and he had no idea when she left. It was important,
therefore, that the complainant be confronted with the fact that she voluntarily remained
in the appellant’s room to a point that when Yamkela arrived she was in bed with the
appellant .
[82] I am alive to the fact that not every contradiction in the evidence of witnesses
signifies falsity , as some contradictions might be indicative of error .23 However, the
nature of the contradiction and its effect on the witness’s evidence may, in an
appropriate case , lead to a finding that one or both witnesses lied. In the present case,
the nature of the contradictions between the evidence of the appellant and Yamkela is
such that it must lead to a finding that the version of the appellant was conveniently
presented to escape a finding of guilt.
[83] I turn do deal with the appellant’s contention that the court a quo misdirected
itself in acceptin g the J88 report as a previous consistent statement that corroborat ed
the evidence of the complainant .
23 S v Mkhohle 1990 (1) SACR 95 (A) at 98F -H, with reference to S v Oosthuizen 1982 (3) SA 571 (T) at
576B -C.
[84] We do not understand the court a quo ’s finding to be that the complainant’s
evidence regarding the rape was corroborated by the doctor’s recordal of the history on
the J88. In his judgment, the magistrate repeats the contents of the J88 report and
states that the recordal by the doctor that she collected sperm or semen from the
complainant’s vagina was consistent with the complainant’s evidence that she had not
bathed after the sexual intercourse.
[85] Significantly, nowhere does it appear from the J88 th at the complainant told the
doctor that she was raped by the appellant . The clinical observations and conclusions of
the doctor stood as objective evidence of facts as were observed by h im during h is
examination of the complainant. I may reiterate that the defence consented to the
admission of the J88 report in evidence upon its mere production. Nothing prevented
the defence from challenging the clinical observations and findings made by Dr Seitlhelo
in the report.
[86] Furthermore, t he defence po sited by the appellant was never that he did not
have sexual intercourse with the complainant, but that he had consensual intercourse
with her. Apart from this, it was the complainant’s evidence that when the appellant
penetrated her vaginally and had sexu al intercourse with her, he did not use a condom
even though she had seen a condom next to his bed. This evidence was never
challenged.
[87] It can hardly be said, therefore, that the magistrate accepted the J88 report as a
previous consistent statement m ade by the complainant. I hasten to state that nothing
prevents the court from accepting proof of a previous consistent statement concerning
the commission of a sexual offence where proper basis was laid for the acceptance of
that report and evidence adduc ed by the person to whom that report was made. I am
fortified in this view by the provisions of section 58 of SORMA which are as follows:
‘Evidence relating to previous consistent statements by a complainant shall be
admissible in criminal proceedings invo lving the alleged commission of a sexual
offence: Provided that the court may not draw any inference only from the
absence of such previous consistent statements. ’
[88] By contrast, and as far as we could have ascertained from the record before us,
the J88 report was handed to court in terms of the provisions of section 212(4) of the
CPA, whereupon it would become admissible to the court upon its mere production
subject to the right of the accused to challenge any aspect of the report if so advised.
[89] For all the foregoing reasons, t here is no basis for interference with the court a
quo’s evaluation of evidence. The grounds of appeal relied upon by the appellant,
cannot be sustained.
[90] I deal next with whether there are any grounds for interfering with the sentence
that the court a quo imposed on the appellant . The narrow issue in this regard, gleaned
from the ground s of appeal relied on, is whether the court a quo erred in finding that no
substantial and compelling circumstances existed which warranted deviation from the
minimum sentence prescribed for the offence of which the appellant was convicted.
[91] At the trial in the court a quo , both the appellant and the prosecution contented
themselves with making submis sions from the bar in mitigation and aggravation of
sentence , respectively .
[92] It was submitted on behalf of the appellant that he was 23 years of age with two
school going children aged 6 and 8 years, respectively. The two children were born of
differe nt mothers who were also school going, hence they are looked after by the
appellant’s aunt. The appellant was employed in a construction company as a
construction worker and used his income to support his children and younger sister.
Both his parents are d eceased. No previous convictions were proved against him.
[93] The prosecution submitted that even though the appellant was convicted of a
serious offence which constituted gender -based violence , and which warranted a
custodial sentence, the fact that the appellant had two children and the offence was
committed ‘while people were drunk’, constituted substantial and compelling
circumstances. Based on this, the prosecution submitted that there were grounds for the
court a quo to deviate from the minimum sente nce of 10 years imprisonment that was
ordained for the category of rape that the appellant was convicted of. The prosecution
submitted that a period of 6 years imprisonment was appropriate in the circumstances.
[94] In imposing the prescribed minimum of 1 0 years’ imprisonment, the magistrate,
after considering the appellant’s personal circumstances, reasoned that the conduct of
the appellant amounted to taking advantage of the complainant who had as much a
right to be at the tavern as he did . He further co nsidered the prevalence of the offence
in that court’s area of jurisdiction and the fact that rape undermines the victim’s human
rights. It was his finding that there were no substantial and compelling circumstances
which justified a departure from the pre scribed minimum sentence of 10 years’
imprisonment .
[95] The difficulty in formulating a straitjacketed definition of the phrase ‘substantial
and compelling circumstances’ is generally recognized by the court s.24 It bears
emphasizing that the advent of minimum sentence legislation has not done away with
the traditional factors that are relevant to sentencing. Those are the personal
circumstances of the offender, the crime committed and the interests of society.25
[96] It has been held that the prescribed minimum sentences are not to be departed
from for flimsy reasons that would not wit hstand scrutiny;26 and that in cases of serious
crime the personal circumstances of the offender, by themselves, will necessarily
recede into the background. In S v Vilakazi ,27 it was held that once it becomes clear that
24 S v Dodo 2001 (3) SA 382 (CC) at para 10; S v Malgas at para 20.
25 S v Zinn 1969 (2) SA 537 (A).
26 S v Malgas, supra , para 25.
27 2009 (1) SACR 552 (SCA).
the crime is deserving of a substantial period of imprisonment, the questions whether
the accused is married or single, whether he has two children or three, and whether or
not he is in employment, are in themse lves largely immaterial in the light of what that
period should be, and that those seem to be the kind of ‘flimsy’ grounds that, according
to Malgas, should be avoided.28
[97] Regarding the effect of intoxication, I acknowledge what the court said in S v
Ndhlovu (2) .29 In that case it was held that intoxication is one of humanity’s age -old
frailties, which may, depending on the circumstances, reduce the moral
blameworthiness of a crime, and may even evoke a touch of compassion through the
perceptive understanding that man, seeking solace or pleasure in liquor, may easily
over-indulge and thereby do the things which sober he would not do.30
[98] However, the learned author Terblanche ,31 states that the intake of alcohol or
drugs is not necessarily a mitigating factor; the circumstances of the case will determine
whether it is. Generally, however, once the court is satisfied that the offender was
intoxicated, his intoxication will be a mi tigating factor. The reason for this is that “[liquor]
can arouse sense and inhibit sensibilities which may diminish the responsibility of the
offender. However, it has to be shown that the intoxication actually impaired the mental
faculties of the offende r; only then can his blameworthiness be regarded as diminished.
[99] These views also found expression in Director of Public Prosecutions,
Grahamstown v Mzukisi Peli32, a case where the accused (and respondent on appeal
by DPP, was 24 years old victim 6 ye ars old) in which the Court held :
‘It is trite, that for intoxication to be considered as a substantial and compelling
circumstance in mitigation, it must be shown that the consumption of alcohol had
28 Vilakazi , at para 58.
29 1965 (4) SA 692 (A).
30 Id, at 695C -D.
31 Guide to Sentencing in South Africa, 2nd Edition (Lexis Nexis) 2007, at paragraph 7.3.9 .
32 Director of Public Prosecutions, Grahamstown v Mzukisi Peli (533/2017) [2018] ZASCA 40 (28 March
2018).
impaired or affected the respondent’s mental faculties o r judgment and thereby
diminished the respondent’s moral blameworthiness: see S v Cele 1990 (1)
SACR 251 (A) at 254 h-i & 255 b-c;S v Makie 1991 (2) SACR 139 (A) at 143 c-d
and S v Eadie 2002 (1) SACR 663 at 673 j-674f together with the cases
mentioned therein. . . That the respondent appreciated the wrongfulness of his
conduct and was accordingly able to distinguish right from wrong, but
nevertheless proceeded to rape the complainant, cannot on the facts of this case
serve to diminish his mora l blameworthiness to the extent that it may be regarded
as a substantial and compelling circumstance. ’33
[100] There is no indication from the facts of the present case that the appellant’s
consumption of alcohol impaired or affected his mental faculties o r judgment and
thereby diminished his moral blameworthiness. In his own words ‘he was moderately
drunk or tipsy’ when he left the tavern with the complainant. Furthermore, i t was not
suggested at any stage during the trial in the court a quo that appellant did not
appreciate the wrongfulness of his conduct and was accordingly unable to distinguish
right from wrong.
[101] I note that no submissions were made by the appellant’s legal representatives
regarding the existence of substantial and compell ing circumstances. That being the
case, from the personal circumstances of the appellant and the circumstances of the
offence as the y appear from the record before us, there are indeed none.
[102] It is as well to mention that despite the minimum sentence legislation, the
centrality of proportionality in sentencing has not changed. The absence of substantial
and compelling circumstances from the personal circumstances of the appellant is not in
and of itself the end of the inquiry. A prescribed sentence ca nnot automatically be
assumed to be proportionate in a particular case . Disproportionate sentences are not to
be imposed as the courts are not vehicles for injustice.34
33 At para 9.
34 Id, at para18 .
[103] In S v Dodo35, the Court held that it is incumbent upon a court in every case,
before it imposes a prescribed sentence, to assess, upon a consideration of all the
circumstances of the particular case, whether the prescribed sentence is indeed
proportionate to the particular offence. This the court does by considering all factor s
relevant to the nature and seriousness of the criminal act itself, as well as all relevant
personal and other circumstances relating to the offender which could have a bearing
on the seriousness of the offence and the culpability of the offender. Can it therefore be
said that the term of imprisonment of 10 years is disproportionate to the offence of
which the appellant was convicted , notwithstanding the absence of substantial and
compelling circumstances ?
[104] The repulsive and humiliating nature of the crime of rape can never be
overstated. It is indeed an invasion of the most private and intimate zone of a woman
and strikes at the core of her personhood and dignity. It diminishes or renders nugatory
the legitimate claim of women that the court referred to in S v Chapman36, ‘to walk
peacefully on the streets, to enjoy their shopping and their entertainment, to go to and
come from work, and to enjoy the peace and tranquillity of their homes without the fear,
the apprehension and the insecurity which constantly diminish the quality and
enjoyment of their lives.’
[105] The appellant contrived a plan to allure the unsuspecting complainant who
placed her trust in him when he rescued her from the assault by Yongama at the tavern.
He carefully executed his plan by continuously misleading the complainant when he left
the tavern with her by making her believe that he was taking her to her boyfriend. This,
he did in order to secure his control over the complainant so that his pre -contrived plan
to take advantag e of her may come to fruition.
35 Footnote 24, supra, at para 37; S v Vilakazi para 15 .
36 S v Chapman 1997 (3) SA 341 SCA.
[106] It must perhaps be stated that not every rape incident will be marked by evidence
of injuries on the victim, nor is it necessary in every instance that the perpetrator
subject s his victim to gruesome violence and terror in order to subdue her and retain
control over her while carrying out the despicable act of rape .
[107] The importance of this observation is that the appellant’s stratagem in taking the
complainant with him in order to have his way with her is far more perilous as it is bound
to go undetected until the victim is absolutely at his mercies at the surreptitious scene of
the rape. Society deserves protection from persons of the calibre of the appellant. This
can only be achieved by a substantial period of im prisonment which will hopefully afford
the appellant an opportunity to reflect long and hard on his conduct and the need to
respect the rights of other individuals who must co -exist with him in society .
[108] It has not been demonstrated that the court a quo’s judgment on sentence was
so wrong that this court must interfere with it. The period of imprisonment imposed by
the court a quo is proportionate to the offence committed by the appellant when regard
is had to the circumstances under which he committe d it. The appeal against sentence
must accordingly fail.
[109] In the result, I would make the following order:
1. The appeal against conviction and sentence is dismissed.
__________________
L. RUSI
JUDGE OF THE HIGH COURT
I agree and it is so o rdered :
_____________________
M. S. JOLWANA
JUDGE OF THE HIGH COURT
Appearances :
Counsel for the appellant : Adv. A Dorfling
Instructed by : GRIFFITHS ATTORNEYS
C/o 70 York Road
MTHATHA
Counsel for the first respondent : Adv. N Mbunye
The Office of the Director of Public Prosecutions ,
Mthatha
94 Lower Sissons Street Fort Gale
MTHATHA
Date heard : 04 November 2024
Date delivered : 21 January 2025