REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

High Court Ref No:12/2023
Magistrate’s Serial No:01/22
Case No: RCA 118/2017

In the matter between:

THE STATE

And

L N ACCUSED

Heard: 06 December 2024
Delivered: Electronically on 31 January 2025


JUDGMENT


LEKHULENI J et ADAMS AJ

Introduction

[1] This case came before us by way of review in terms of section 85 of the Child
Justice Act ("the CJA") read with Chapter 30 of the Criminal Procedure Act 51 of
1977 ("the CPA"). The accused faced 10 counts in total, namely : assault, assault
with intent to d o grievous bodily harm, four counts of kidnapping and four of rape in
contravention of section 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007. All the charges emanate from three separate
incidents, which allegedly occu rred on 23 November 2015, 5 December 2016, and 5
August 2017, respectively. The accused was legally represented throughout the trial.
During the first incident in November 2015, the accused, whose date of birth was
established to be 3 February 1998, was 17 years old, and the proceedings in respect
of counts 1 to 3 were therefore conducted in terms of the Child Justice Act 75 of
2008 (“the CJA”) .

[2] The trial in the Regional Court commenced on 16 October 2019, with pleas of
not guilty noted in respect of all the charges. The accused elected to exercise his
right to remain silent, and no formal admissions were noted. The court proceeded to
hear severa l witnesses, which culminated in the conviction of the accused on counts
1, 3, 8, 9, and 10 on 4 June 2021. The accused was acquitted on count 2 and
counts 4 to 7. In terms of section 71 of the CJA, a pre -sentence report was obtained,
and on 8 September 2 021, the accused was sentenced as per Annexure K attached
to the charge sheet as follows:

“Accused is sentenced as follows:

[1] In respect of count 1 – Kidnapping , you are sentence d to 12 months
direct imprisonment.

[2] In respect of count 3 – Rape , you are sentenced 10 years direct
imprisonment. Both on count 1 and 3 you are sentenced in accordance with
the provisions of section 77 of the Child Justice Act 75 of Act 2008 . And your
sentence is antedated in terms of section 77(5) of CJA by (4years 18d ays)
which is the time that you have spent in prison from the 20th of August 2017.

[3] In respect of count 8 - Assault Common , you are sentenced to 3
months direct imprisonment.

[4] In respect of count 9 – Kidnapping , you are sentenced to 12 months
direc t imprisonment.

[5] In respect of count 10 – Rape , you are sentence Life Imprisonment.

[6] In terms of section 280(2) the court makes an order that the sentences
imposed on count 1, 3, 8 and 9 shall run concurrently with the sentence
imposed on count 10 .

[7] In terms of Section 103 of the Firearms Control Act 60 of 2000 , the
court makes no order, meaning you are automatically unfit to possess firearm.

[8] In terms of section 50(2)(a)(i) of Act 32 of 2007 the Court makes an
order that your personal details including the offence, date and place of
conviction and sentence, court and case number will be included in the
Sexual Offences Register. In terms of section 45 of A ct 32 of 2007 your
employer or any pro spective employer shall before employing you apply to the
Register for a prescribed certificate stating whether or not your particulars are
not recorded. “

[3] As previously stated, this matter came before us on automatic review in terms
of the provisions of section 85 of the CJA read with Chapter 30 of the CPA , as the
accused was 17 years old at the time of the commission of the first alleged offence s
(counts 1 to 3). The record of proceedings from the court a quo was placed before us
on 09 February 2023. Upon perusal of the record, no concerns were noted with the
conviction and sentence in respect of counts 1 and 3; however, following certain
concerns noted with the conviction on counts 8 to 10, we addressed specific queries
to the Regional Magistrate during February 2023.

[4] Furthermore, we noted that the record was incomplete, and we returned the
incomplete record to the Regional Magistrate for the reconstruction of the missing
part of the evidence of one witness, Latoya Morris, as the s ame was not included
when the record was originally submitted to the High Court. The response to these
queries was only received after further enquiries were made to the lower court in
October 2023. The complete record with the Regional Magistrate's respo nse and
the transcription of Latoya Morris' evidence was received on 6 November 2023.
Systemic challenges related to loadshedding and CRT machines malfunctioning,
which allegedly caused a delay in obtaining the transcription of the missing evidence,
were r eported to have contributed to the long turnaround time in returning the
complete record to the High Court.

[5] Upon perus al of the complete record that was belatedly submitted , we were
deeply concerned with the conviction of th e accused on count s 8 to 10 . These
counts did not trigger the supervisory powers of this court as contemplated in section
85 of the C JA. To this end, we issued a memorandum setting out the difficulties
inherent in the proceedings in relation to counts 8 to 10 and forwarded i t to the
Director of Public Prosecutions (DPP), Western Cape, as well as the Provincial
Executive of Legal Aid South Africa (LASA), Western Cape extending an invitation to
them to present arguments in respect of the mentioned counts (8 to 10) . Copies of
the record were subsequently made available to the DPP and LASA for their
consideration

[6] Subsequent thereto, written submission s were received from the DPP and
LASA in late August 2024 . We are indebted to them for their written submissions
which were o f great hel p to this court. Consequently, a date for oral argument was
set for 6 December 2024 and both parties confirmed their availability . At the hearing
on 6 December 2024, the submissions of Mr Calitz, the accused’s Counsel , centred
around the material contradictions in the State’s case which impeached the
credibility of the complainant. Mr Calitz contended that these contradictions relate to
various aspects of the complainant’s evidence which differed with her written
statement and th e evidence of other witnesses.

[7] In addition, Counsel contended that the eyewitness, Zanele, who was present
with the complainant at the time when the alleged offenses occurred, was available
in court throughout the proceedings. According to Counsel, Zanele had the potential
to provide significant corroboration for the complainant's testimony; however, the
state di d not call her as a witness. The prosecutor had indicated on the record that
she consulted with Zanele but ultimately opted not to call her as a witness. Counsel
asserted that a negative inference should be drawn against the state for its failure to
call this eyewitness to testify.

[8] On sentence, Mr Calitz contended that the complainant in count 8 was
already 16 years old at the time she claimed to have been raped, and thus, the
minimum sentence did not apply. However, considering the finding by the lear ned
Regional Magistrate that the complainant was raped more than once, Counsel
submitted that the prescribed minimum sentence applicable in those circumstances
would be life imprisonment. Furthermore, there were no substantial and compelling
circumstances warranting a deviation from the prescribed minimum sentence.

[9] On the other hand, Mr Breyl , the State advocate submitted that the p residing
officer during the hearing of the matter was in the best position to make credibility
findings. Mr. Breyl conceded that the learned Magistrate erroneously conflated the
facts concerning the evidence provided by the accused for counts 1 to 3. In these
counts, the accused admitted to slapping the complainant; however, no assault
charge was put against him regard ing this incident (assault) . The Magistrate
subsequently convicted the accused on count 8, basing this conviction on the
admission made by the accused in relation to the assault incident in counts 1 to 3.
Nonetheless, Mr Breyl was unwilling to concede that the conviction on the assault
count cannot stand. He submitted that the evidence demonstrated that the
complainant was slapped albeit that there are contradictions regarding the number of
times she was slapped as well as the exact circumstances under whic h that incident
happened.

[10] The state additionally submitted that the court a quo considered the evidence
wholistically and used the version of the accused to find corroboration for the version
of the complainant. As it will be demonstrated hereunder, t hese submission s are not
borne out by the facts of this case . Notwithstanding, Counsel implored the Court to
confirm the conviction of the accused on review.

[11] We pause to state that a careful reading of the judgment on the merits
illustrates that sound reasoning underpins the verdict with respect to the findings
made on counts 1, 2 and 3. There is a clear distinction between the strengths
inherent in respect of the case presented by th e State on counts 1 and 3 and the
shortcomings in the State case concerning count 2. The Regional Magistrate clearly
and succinctly sets out the corroboration found for the evidence of the complainant in
the form of the witness who was present during the i ncident albeit outside the room,
as well as the medical report corroborating the complainant on crucial aspects and
the concessions the accused made in his evidence.

[12] The proper analysis and evaluation of all evidence presented form a well -
reasoned b asis for the conviction in respect of counts 1 and 3. No concerns were
noted in respect of the conviction on counts 1 and 3, and that portion of the
proceedings are found to be in accordance with justice. Similarly, the reasons
presented for the sentence imposed in respect of count 1 account for all the factors
and circumstances that must be taken into account in considering an appropriate
sentence . However, the same cannot be said in respect of the sentence imposed in
count 3. In our view, t he sentenc e imposed in respect of count 3 was not consistent
with the provisions of the CJA.

[13] We are mindful that a court exercising review or appellate jurisdiction cannot,
in the absence of a material misdirection by the tri al court approach the question of
sentence as if it were the trial court and then substitute the sentence arrive d at by it
simply because it prefers it as that will be usurp ing the sentencing discretion of the
trial court. (See S v Malgas 2001 (2) SA 1222 (SCA) at para 12 ). However, w here
material misdirection by the trial court vitiates its exercise of that discretion , an
appellate court is entitled to consider the question of sentence afresh.

[14] As stated above, in respect of count 3, the court sentenced the accused to 10
years direct imprisonment in accordance with the provisions of section 77 of the
CJA. The sent ence was antedated in terms of section 77(5) of CJA by 4 years and
18 days, which was the time that the accused spent in prison before the sentence. In
our view, this sentence is incompetent in that it offends the provisions of section
77(5) of the CJA as amended . The trial court did not have the statutory power to
antedate the sentence in terms of section 77(5) of the CJA.

[15] Perhaps it is apposite to remind ourselves that before section 77(5) of the
CJA was amended, the section read as follows:

“(5) A child justice court imposing a sentence of imprisonment must antedate
the term of imprisonment by the number of days that the child has spent in
prison or child and youth care centre prior to the sentence being imposed.”

[16] This section was amended by section 4 of the Judicial Matters Amendment
Act 14 of 2014 which came into effect on 19 May 2014. In terms of the new
amendment , instead of antedating the sentence, a court must take into account the
period that the child off ender spent in prison when imposing a sentence. For
completeness, the amended section provide s as follows:

“(5) A child justice court imposing a sentence of imprisonment must take into
account the number of days that the child has spent in prison or a child and
youth care centre prior to the sentence being imposed.”

[17] It is thus abundantly clear that the trial court did not have the statutory
competence to antedate the sentence. Section 77(5) no longer empowers a trial
court to antedate its own sentence. The correct approach for the trial court in terms
of the new amendment would have been to consider a lighter sentence by reason of
the period spent by the accused in custody awaiting trial. We emphasise that
antedating a sentence of imprisonment is only pe rmissible after a review or appeal
court has set aside such a sentence, and another sentence of imprisonment is
imposed in its place. It is not permissible to be imposed during trial proceedings.
(See S v Sileni 2005 (2) SACR 576 (E) ). Consequently, the court a quo erred in
imposing the sentence it did on count 3. It is a misdirection which demands
interference from this court.

[18] We are also of the view that a sentence of direct imprisonment which is partly
suspended will be appropriate in the circumstances. While we accept that the
accused invaded the dignity and privacy of the complainant, we also appreciate that
the accused was a minor when the crime was committed. He was impetuous,
immature, and less deserving of harsh punishment. We are also mindful of the
guiding principle in section 3(f) of the CJA, which states that a child offender must
not be treated more severely than an adult would have been treated in the same
circumstances. On review, we are of the view that a sentence of ten (10) years
imprisonment, four (4) years of which is suspended for five years on condition that
the accused is not convicted of rape, or attempted rape, which is committed during
the period of suspension, would be appropriate in the circumstances.

[19] As previously stated, a careful reading of the trial court's judgment on the
merits illustrates that with respect to the findings made on counts 1, 2 and 3, sound
reasoning underpins the verdict. However, the picture in respect of the findings,
which underpin the conviction in respect of Count 8 – 10, is a horse of a different
colour and was a significant part of the reason for returning the record to afford the
Regional Magistrate an opportunity to comment. As indicated above, the comments
were received and clearly set out the daily difficulties experienced in our courts due
to systemic failures fuelled by loadshedding and defective court re cording
equipment.

[20] In respect of counts 8 to 10, the State, in presenting their case, called two
witnesses. The State also presented the affidavit deposed to by the complainant,
which the court marked exhibit A, and the J88 medical report compiled b y Dr
Bongwalanga, which was received into evidence by the Court as Exhibit H. For the
sake of completeness, we deem it proper to briefly set out the evidence that was
presented before the trial court in respect of these counts.

Evidence of the complainant – Counts 8 to 10

[21] The complainant in these counts was 16 years old at the time of the alleged
incident. On the afternoon of 5 August 2017, she was in the company of her friend,
Latoya Morris, on their way to buy food when they encountered the accused, who
was in the company of friends. The complainant indicated that she knew the accused
only in passing and that she was propositioned by him on one occasion prior to the
incident. On the afternoon in question, the accused pulled her by the arm and used
unsavoury language towards her. The accused told Ms Latoya Morris to go as he
was going with the complainant. Latoya left as she feared the accused.

[22] She testified that the accused pulled her and slapped her once. She cried. On
the way, they met an unk nown guy that the accused spoke to. The complainant
could not run away because the accused was 2 to 3 meters away from her when he
spoke to the unknown guy. When the accused went around the corner, the
complainant asked this guy to delay the accused so she could get a chance to get
away, but the guy refused out of fear for the accused. The accused came back, and
they walked to his house.

[23] When they got to the house, she did not see any dogs, and the accused put
her inside the house. She was unsure whether a dog was inside the house or just on
the chains. When the accused left her alone, the complainant went outside but
returned to the house upon seeing the dogs. When the accused returned, the
complainant cried, wanting to go home and then ask ed to use the toilet. The accused
told her to come out of the toilet naked and slapped her when she did not comply.

[24] The accused threw her on top of the bed and undressed her by pulling down
her panties and lifting her dress. She cried, begging him n ot to do it. The accused
opened her legs, took out his penis and inserted it into her vagina, with the
complainant crying, telling him to stop. The accused told her to stop crying for fear of
what his big brother would say if he found her crying. The compl ainant was crying
because it was late, and she wanted to go home. The accused refused to let her go.

[25] The accused and the complainant later went to the accused’s brother's room,
which is situated outside on the side of the main house where they found the
complainant’s friend Zanele and the accused's brother. Zanele asked the
complainant why she was crying, and the complainant told her. The accused’s
brother also asked why she was crying, and the complainant told him that she
wanted to go home, and that the accused slept with her by force. The accused’s
brother said she must not cry, as it shows that the accused loved her. The accused
and his brother left for the tavern to buy alcoh ol, leaving her and Zanele behind in
the room of the accused’s brother . They could not leave as the dogs were unchained
outside, and another dog with puppies was inside the room. The accused and his
brother returned after twenty minutes , and the accused fo rced her to consume
alcohol against her will which she refused .

[26] The complainant asserted that she again begged the accused to let her go
home because she was going to get a hiding at home , but to no avail. The accused
told her to stop crying and took her back from his brother ’s room into the house. She
assured the accused that she would not tell anybody what happened, and the
accused did not heed to her request. The accused's mother arrive d, and she (the
accused’s mother ) wanted her to go, but the accused refused. They remained there
until the next morning as the accused did not want to let her go home . The accused
informed her she would go home during the day. The accused had sex with the
complainant again, and she told him it was painful. Later that afternoon, around
14h00, the accused accompanied the complainant and Zanele home.

[27] On the way home, the complainant told Zanele that she was experiencing
difficulty walking, and it was pa inful. Zanele told her that she would heal. On the way,
they met Baso, who asked where the complainant was as she had been looking for
the complainant for a long time. Zanele told Baso that they were coming from her
house. Baso wanted to know why the compl ainant's face was swollen, and the
complainant broke down and reported what had happened. Both Baso and the
complainant cried, and Baso asked what the complainant would do when she got
home, to which the complainant replied that she would tell the truth. T hey sought
assistance from the Metro police, who took the complainant to the Khayelitsha Day
Hospital, where she was examined.

The evidence of Latoya Morris

[28] This witness testified that she was with the complainant on the way to buy
vetkoek when they encountered a man named Asiphe who told them their friend
Zanele was looking for them. They left, and when they arrived at the place that was
indicated, Zanele was not there, but instead, they found the accused and his friends
busy smoking. The a ccused, who appeared to be under the influence of alcohol,
called the complainant. The accused and complainant were conversing off the side,
and it was difficult for this witness to hear what was being said. However, she saw
that the accused slapped the co mplainant 3 or 4 times, and then people intervened.
The accused and the complainant then resumed normal conversation, after which
the two walked towards the accused's home.

[29] The witness followed them initially because she wanted the complainant to
hurry up so they could get the vetkoek. The accused told Morris not to interfere in
matters between two people, and when the complainant said nothing, she stopped
following them. The accused and complainant disappeared from her view, and she
asked some children who were playing on the sidewalk, who told her that they saw
the accused walking with the complainant, assaulting her. This piece of evidence
constituted hearsay evidence, whic h the court a quo allowed and referred to in the
summary of facts in its judgment, notwithstanding that no substantive application
was made for its admission. We will deal with this aspect later in this judgment.

[30] Ms Morris left and went to inform Ba so that the complainant had left with the
accused. She saw the complainant again the following day around 17h00 in Baso's
company. The complainant was wearing the same clothes she had on the previous
day, and she noticed her eyes were red, and it appeared that she had been crying.
When she made enquiries, the complainant did not want to disclose what had
happened initially, but after she went inside to allow the complainant to compose
herself, upon her return, the complainant was crying and reported that th e accused
had raped her. When Morris asked how she was walking, the complainant indicated
she could not close her legs. The complainant fully disclosed what had happened to
Ms Morris in the following way :

[31] In her retelling of the events, the complainant indicated to Ms Morris that she
saw the dogs upon entering the accused’s premises and that they were vicious dogs.
She went in with the accused because you cannot enter on your own; you have to go
in with som eone. In addition, the accused threatened to set the dogs on her if she
did not go in with him. The complainant explained to her further that when she got
there, she saw Zanele, who was also there. Zanele said she was there to report to
the accused's broth er that the accused had choked her.

[32] The sequence of events relayed by Ms Morris as to what the complainant told
her happened is completely different to the version narrated to the court by the
complainant herself. Ms Morris also indicated that the c omplainant told her she
asked Zanele to go to the toilet with her, but the accused offered to go with her, and
while she was in the main house toilet, the accused locked the door in the front. The
accused then told the complainant that they must go to the room and that the
accused had a knife with him, which he placed on the table. The accused told the
complainant that they must do the deed; otherwise, he would kill her. The
complainant was crying and pleading while the accused undressed her by force and
then did what he did to her.

[33] Ms Morris also disclosed to the court that at one stage, the accused had given
the complainant a cell phone , which the complainant had for some time, which again
was information that the complainant chose not to disclose to the court. As already
indicated in her evidence, Ms Morris suggests that partly because the complainant
said nothing when the accused told her not to interfere in the affairs of two people,
she decided to stop following them and not because the accused told her to go as
the complainant had indicated.

The medical evidence

[34] Dr Belinga Patrick Bongwalanga examined the complainant in counts 8 to 10
on 6 August 2017 at 21h00. His clinical findings were noted in 3 categories, namely
general, gynaecological and anal examination. In relation to all these categories, the
physician found nothing of note. In the general examination, no injuries were noted,
and n o clinical evidence of alcohol or drugs was noted at the time of examination.

[35] Similarly, with the gynaecological examination, the parts of the body
examined were found to be normal, with no abnormalities or injuries noted. The anal
examination also did not show any evidence of abnormalities or injury. The
conclusion reached by the d octor was that the : "Patient story, physical examination
and findings are not consistent with assault. The patient story, gynaecological
examination and findings are not consistent with forced vaginal penetration, but this
doesn't exclude rape …", and in re lation to the “anal examination, normal anal
examination and findings not consistent with forced anal penetration." That was, in
short, the evidence of the State.

[36] The accused also testified in respect of all the counts levelled against him.
However, as far as counts 8 to 10 are concerned, the accused explained to the court
how he met the complainant in th ese counts. He explained that he had known the
complainant since 2017, when he was released from jail. He met the complainant
through Zanele , with whom he smoked dagga. He met the complainant two months
before the alleged incident.

[37] The accused's evidence was that two days after he was released from prison,
he went to meet his friend Qozo. It was around 13h00, just after school. As Qozo
was exiting the school gate, two girls were with him. He knew one of the girls as
Zanel e and did not know the other. He then walked with Qozo, and on the way, he
called Zanel e and asked her about the lady she was with and who she was. In
response, Zanele a sked the accused if he was interested in her, and he answered in
the affirmative. Zanele told the accused not to worry and promised to come with the
said lady when she later came to buy dagga during that day. Later, around 15h00,
Zanele came back with the complainant, as well as Latoya.

[38] The accused stated that on the day of the alleged incident, it was a Saturday,
and he visited a friend that he smoked dagga with. Upon arrival at his friend's place,
there was a group of boys, and amongst them were Lat oya and Zanele. The
complainant's premises was just opposite where the boys were standing. He asked
his friend to call the complainant. It was not for the first time that he asked his friend
to call the complainant on his behalf. Five minutes later, his friend came with the
complainant . They then walked together. As they were walking, Latoya came from
behind and saw that the accused was now lighting dagga to smoke . Latoya asked for
a skyf.

[39] The accused told Latoya that she does not have to include h erself on two
people's zol. In response, Latoya said I am your friend referring to the complainant.
The complainant looked back at Latoya and continued walking with the accused. On
the way, they met Avito. On the road, they also passed Mr Masilakhe, a police official
who was concerned that the accused was out of prison within two months of
incarceration . The accused thereafter continued to his h ouse with the complainant.
He got home and found his elder brother with Zanele inside the house. They had half
of the Viceroy. He did not say anything and continued to drink and smoked dagga.
The complainant did not drink.

[40] Later, around six, the accused and the complainant went to a tavern to buy
liquor. On the way, they took pictures of him and the complainant. He still has these
pictures. They both went into the tavern and later went to the Somalian shop, where
they bought Sprite for his elder brot her. They then walk ed to the house. He then
went to the flat and continued to drink with his brother and Zanele. Later, he heard
the gate opening, and he peeped through the window and saw his mother leaving
the premises. He went into the main house with th e complainant.

[41] His testimony was that he was drunk, and he could not do anything or move
and ended up sleeping. He woke up the following day at 08h00 in the morning. That
morning, when he woke up, he started to have sex with the complainant with her
consent. This was the first time he had sex with her. He was not aware that she was
16 years old at the time. When he was accompanying her back home, he learned
that the complainant was the cousin of the guys he had bad blood with. They are his
competitor s in the selling of drugs. Customers no longer bought from these people
but were now buying from him.

[42] According to him, these must be the reasons the complainant reported a false
charge against him. He testified that one of the complainant's cousins at one point
shot him on his left foot. As a result of the shooting, he went to the hospital, and
when he came back , in revenge, he stabbed the complainant's cousin 17 holes until
the said cousin became unconscious. This altercation w as all about the selling of
drugs. He testified that he had sexual intercourse with the complainant with her
consent. He refuted the allegations that he raped the complainant as alleged or at
all.

The Relevant L egal Principle s and Discussion

[43] It is well established in our law that the duty to prove an accused's guilt rests
fairly and squarely on the shoulders of the State. The accused need not assist the
State in any way in discharging this onus. (S v Mathebula 1997 (1) SACR 10 (W) ). In
assessing whether the State has discharged the onus of proving its case against the
accused beyond a reasonable doubt, the court must consider all the evidence in
concluding whether to convict or acquit an accused. In other words, a court's
conclusion must account f or all the evidence presented before it. (S v Van der
Meyden 1999 (1) SACR 447 (WLD) at 449h ).

[44] The correct approach to the evaluation of evidence in a criminal trial was
enunciated by the Supreme Court of Appeal as follows in S v Chabalala 2003 (1)
SACR 134 (SCA) para 15 , where the court stated :

'The trial court's approach to the case was, however, holistic and in this
it was undoubtedly right: S v Van Aswegen 2001 (2) SACR 97 (SCA).
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, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about the
accused's guilt. The result may prov e that one scrap of evidence or one
defect in the case for either party (such as the failure to call a material
witness concerning an identity parade) was decisive but that can only
be an ex post facto determination and a trial court (and counsel) should
avoid the temptation to latch on to one (apparently) obvious aspect
without assessing it in the context of the full picture presented in
evidence... .'

[45] This salutary approach was quoted with approval in S v Trainor 2003 (1)
SACR 35 (SCA) para 9, where the court emphasised that a conspectus of all the
evidence is required. The court noted that reliable evidence should be weighed
alongside such evidence that 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 be evaluated, as must corroborative evidence, if any.

[46] In the present matter, we emphasi se that the failure or unwillingness to call
the witness Zanele who was present at the house when the alleged incident took
place, means that in respect of the charge of rape, the complainant is a single
witness with the attendant cautionary rule governing the evaluation of her evidence
on those aspects.

[47] Section 208 of the CPA provides that an accused person may be convicted of
any offence on the single evidence of any competent witness. It is well established in
our law that t he testimony of a s ingle witness should be clear and satisfactory in all
material aspects. In S v Rugnanan [2020] ZASCA 166 (unreported, SCA case no
259/18 ) (10 December 2020) at para 23 , the Suprem e Court of Appeal held that the
cautionary rule does not require that the evidence of a single witnes s must be free of
all conceivable criticism’; the 'requirement is merely that it should be substantially
satisfactory in relation to material aspects or be corroborated’.

[48] We have noted in the present matter that counts 4 to 7 and counts 8 to 10
involve allegations of the taking of a young woman from the streets under duress to
the home of the accused. Both involve allegations of the young lady being held
against her will and then allegedly raped by the accused inside the house and/or his
room. In both incidents, both complainants are single witnesses in relation to the
events that transpired at the accused's home. Witnesses who were with the
complainants and who could have provided valuable assistance to the court in
deciding the matter were not c alled, and, in both instances, the medical report was
not particularly of help in deciding the matter.

[49] Notwithstanding, it must be stated that in respect of counts 8 to 10, an
additional witness was called. However, the witness, Zanele, who was also at the
house of the accused in the company of the accused and the complainant at the time
the alleged incident occurred, was not called despite her being available and present
at court. On 20 February 2020 , Zanele was available in court, and the prosecutor
informed the court after the complainant's testimony that Zanele was the only
witness the State intended to call on these counts to corroborate the complainant's
evidence. The matter was subsequently postponed for the evidence of this witness.
On 18 March 2020, notwithstanding that, the prosecutor had on more than once,
indicated on record that she wanted to call Zanele as a witness, informed the court
that she consulted with Zanele and Ms Morris and was no longer going to call Zanele
as a witness. Still, instead, she would only call Ms Morris.

[50] Another witness , Baso , mentioned by the complainant, who allegedly saw the
swelling on the complainant's face, was not called to testify to corroborate the
complainant's evidence. No reasons were given for not calling this witness. As will be
discussed later in this judgment, th e witness, Ms Morris, who was called to
corroborate the complainant on counts 8 to 10, presented challenges as her
evidence was inconsistent with that of the complainant. Instead of corroborating
each other, their evidence contradicted one another on sever al material aspects.

[51] In dismissing the complaint in counts 4 to 7, the trial court placed reliance on
the following aspects: The complainant did not scream even though she knew her
friend was inside the tavern. The court found that the complainant in these counts
alleged that she was pulled by the braids, smacked, and dragged, but this is not
corroborated by the lack of injuries found in the medical report. Furthermore, the
court found that there is no indication that the complainant inf ormed the doctor that
she had been assaulted, pulled, and dragged. If this really happened, the court
found, why did the complainant not inform the doctor about it? The trial concluded
that if the complainant had surely informed the doctor about this, the doctor would
have noted it in the J88.

[52] The trial court, quite correctly so, questioned several inconsistencies in the
complainant's evidence. In addition, the court a quo was concerned with the inability
of the complainant (in counts 4 to 7) to satisfactorily explain the inconsistencies and
discrepancies in her evidence as well as the contradiction in her evidence in court as
compared to the evidence she gave under cross -examination and what is contained
in her statement. The trial court lamented the fact that there are no injuries to support
or corroborate the evidence of the complainant that she was raped by the accused
for two hours and thereafter raped again. The court found that in those
circumstances, 'surely one would have expected to see injuries on her. ’

[53] In this regard, it must be noted that the absence of injuries should not be
overemphasised unless the circumstances justify an adverse inference. For these
reasons and because the accused denied the allegations, the trial court, in our view,
was correct in finding that it was unable to determine who was telling the truth
between the complainant in counts 4 to 7 and the accused.

[54] We have indicated hereinabo ve that the circumstances and evidence
underpinning the case for the State in counts 8 to 10 are eerily similar to that found
in respect of counts 4 to 7. The only difference between these two incidents is that
regarding counts 8 to 10, the State called an additional witness in the guise of Ms
Latoya Morris. However, when the evidence of the complainant and this witness is
evaluated, it is up for debate as to whether the evidence of this witness aid ed the
trial court in making a finding or whether it muddie d the water s even further. There
are material differences between the evidence of the complainant and Ms Morris on
material aspects of the matter, which leaves one with doubt whether the accused
comm itted the offence he was charged with as alleged or not.

[55] We observed that immediately prior to the cross -examination of the
complainant, the prosecutor asked her some questions, which led to some concerns
about the answers she provided. For example, when she testified, she initially
indicated that she was slapped in the road and again when she came out of the
bathroom still fully clothed. When the prosecutor asked her how many times the
accused slapped her, she responded, "Once on the road as we were walking." In a
follow -up question, she was asked whether there were people around at that time,
and her response was no.

[56] However, the evidence of Latoya Morris paints a different picture to that of the
complainant. Ms Morris mentioned people intervening at the stage when the accused
slapped the complainant 3 or 4 times. The prosecutor later prompted the
complainant about the slap after she came out of the bathroom, and the complainant
confirmed the slap. Further questioning by the prosecutor also muddied the waters
relating to whether the complainant was aware of and saw the dogs when they
entered the house. Initially, the co mplainant indicated that she only became aware of
the dogs when she tried to go out after the accused left and then she immediately
returned inside. Later, when the prosecutor asked her how she knew it was the
accused's house, she indicated that when she s aw him unchain the dogs when they
got there, she realized it was his home.

[57] Furthermore, the cross -examination of the complainant led to contradictions
relating to her alcohol consumption on the night in question. Several omissions from
her evidence, which formed part of her affidavit, were also put to her. She confirmed
that she did depose to the affidavit and gave the relevant information to the police
but did not explain why this information was not included in her viva voce evidence in
court. Thes e are important aspects as it relates to threats that the accused would kill
the complainant if she did not have sex with him, and that his brother, together with
the mother, attempted to stop the accused when he raped her. These aspects, which
constitute new information, also do not fit with the sequence of events the
complainant described in her evidence in chief.

[58] The evidence of the complainant makes it seem as if running into the accused
was a chance encounter as they were going in search of vetkoek, however, the
evidence of Ms Morris in this regard is that they were told that their friend Zanele
was looking for t hem and they went to the creche in search of her but found the
accused instead. The other difference between the complainant and Ms Morris ’
evidence is the extent of the relationship of the complainant and the accused. The
complainant was adamant that they only knew each other in passing and she quickly
corrected the prosecutor that the accused professing his love for her only happened
once.

[59] Ms Morris paints an entirely different picture, which points to the accused and
complainant being in the same company on a few occasions and ends with the
accused giving the complainant a cell phone , which, according to Ms Morris, the
complainant held onto for some time. From Ms Morris's evidence, it is abundantly
clear that the complainant was not open, candid, and truthful to the court. She hid
the information that she knew the accused before she met him on the date alleged
by the State in the charge sheet.

[60] The prosecutor asked Ms Morris whether the complainant left with the
accused of her own volition or under duress, to which the witness could not provide
an answer either way. This is certainly not the scenario painted by the complainant,
as she indicated s he was pulled and assaulted to get her to go with the accused. As
previously stated, Ms Morris's evidence also contradicted how well the complainant
knew the accused. This witness indicated that there were occasions prior to the
alleged incident where they were in the same company of the accused and that she
saw something developing between the complainant and the accused, or in her
words, "there was something they were trying."

[61] Regarding the information that the complainant omitted from her viva voce
evidence, which was contained in her affidavit, we are mindful that the witness
statement is not intended to be a precursor to that witness' evidence in court. We are
also cognisant of the fact that a witness is free to include in her statement whatever
the witness deems to be relevant and important, and there are no laws governing
this, namely what to say and what not to say in such a statement. We are also
recognisant that a witnes s is not expected to relate in his statement what he saw in
infinite detail. Should a witness, through a lapse of memory or any other valid
reason, omit some detail which later could become important, he should not be
branded as untruthful.

[62] Most imp ortantly, in S v Govender and Others 2006 (1) SACR 322 (E) at
326C, the court held that the mere fact that a witness deviates in a material respect
from what he said in his statement does not necessarily render all his evidence
defective. In the final anal ysis, the court will consider the evidence in its entirety to
determine in what respects the witness' evidence may be accepted and in what
respects it should be rejected. (See also S v Mafaladiso en Andere 2003 (1) SACR
583 at 593e - 594h ).

[63] In the present matter, the complainant could not give a plausible explanation
for the differences. The inconsistencies between the statement and her evidence in
court are highly irreconcilable. Crucially, it must be remembered that the details the
complain ant omitted are that she was threatened with death and of people coming to
her aid, which is something unlikely to have been omitted during her evidence in
chief . At the same time, she gave a detailed account of the events in question.
These averments are central to the charge that is levelled against the accused. We
are of the firm view that from the holistic analysis of the evidence, if indeed, the
complainant was threatened with death to walk with the accused to his house and
that the accused's mother ai ded or attempted to assist her from the clutches of the
accused, she would have included this in her statement and disclosed during her
evidence in chief .

[64] Concernedly, a careful perusal of the record reveals that there were several
witnesses who wer e available at court and ostensibly competent to testify, who were
not called. In this regard, the witness Zanele and Baso referred to earlier come to
mind. The medical report makes it clear that the report given to the doctor and his
findings were incompatible with the complainant's evidence.

[65] In light of the trial court's concern about the absence of injuries note d in
counts 4 to 7 and its misgivings on why the complainant did not tell the doctor about
her ordeal, one wonders why the swollen face of the complainant in counts 8 to 10
observed by Baso that same afternoon and her difficulty to walking were not
observe d or was not pointed out to the doctor who examined the complainant that
evening immediately after the alleged assault. As the court a quo found in respect of
counts 4 to 7, if it had been pointed out or noticed by the doctor who examined the
complainant, surely, the doctor would not have noted a finding of no injuries in
respect of, at the very least, the general examination. In our view, the doctor would
have also observed and noted the swelling on the complainant's face and the
difficulty the complainant had in walking.

[66] The evidence of Ms Morris called by the State could, at best, provide
corroboration on peripheral aspects such as what transpired when they encountered
the accused. As the summary of their evidence lays bare, there are material
differences in the evidence of these two witnesses relating to what led to the
encounter. These differences, viewed from a holistic analysis of evidence, impeach
the complainant's credibility.

[67] We regrettably observed that the trial court ma de findings on these counts
that were unsupported by the evidence presented. In its judgment, the court a quo
did not discuss or even acknowledge that there are differences between the
evidence of the complainant and Ms Morris. The trial court indicated th at the witness,
Ms Morris, confirmed that she saw the accused slapping the complainant and then,
in error, indicated that the accused admitted that he slapped the complainant. The
Regional Magistrate indicated that 'based on the accused's own admission, a
conviction on assault common would be justified. This finding was made in
circumstances where no such admission was made by the accused and where the
evidence of the complainant relating to injuries she suffered is not born out by the
available evidence.

[68] The trial court confused the evidence in relation to counts 1 to 3 vis-à-vis the
evidence in counts 8 to 10. The accused admitted having slapped the complainant in
counts 1 to 3, but he steadfastly denied the allegations as contained in counts 8 to
10. He denied that he assaulted the complainant as alleged or at all. He averred that
the complainant went with him to his house willingly, and he had sex with the
complainant with her consent. We are of the view that the trial court erred in this
regard.

[69] The concerns regarding the deficiencies and defects, as well as the gaps in
the evidence, which created cause for pause with the Regional Magistrate in respect
of counts 4 to 7, are visibly present in respect of counts 8 to 10 .

[70] Lastly, the record reflects that on a number of occasions and without
substantive applications for its inclusion, hearsay evidence was allowed to form part
of the record and repeated by the trial court in its summary of the evidence without
properly dealing with it on the basis of the provisions of section 3(1) (a), (b) or (c) of
the Law of Evidence Amendment Act 45 of 1988. The evidence was never dealt with
by the Regional Magistrate in the sense of whether it was included in the evidence
she considered . This evidence relates to hearsay of the accused assaulting the
complainant and choking the witness Zanele, which is extremely prejudicial to the
accused. The evidence is referred to in the j udgment of the trial court .

[71] Still, no indication was given whether it was excluded on the basis of its
hearsay nature or if it was considered part of the evidence presented and, if so, to
what extent. In our view, the court erred in accepting hearsay evidence without
following the in junction set out in section 3 of the Law of Evidence Amendment Act.

[72] On a conspectus of all the facts presented, we are of the view that the
convictions on count 8, 9, and 10 are not supported by the evidence and, thus, not in
accordance with justice . In our view, the presiding magistrate committed a material
misdirection that demands interference from this court.

Order

[73] In the result, the following order is granted.

73.1 The conviction and sentence proceedings in respect of count 1 are
held to be in accordance with justice and are confirmed. The sentence in
count 1 will run concurrently with the sentence imposed in count 3.

73.2 The conviction on count 3 is confirmed and the resultant sentence is
reviewed and set aside and replaced with the following sentence: The
accused is sentenced to 10 (ten) years imprisonment , four (4) years of which
is suspended for five years on condition that the accused is not convicted of
rape or attempted rape committed during the period of suspension. In terms of
section 282 of the Criminal Procedure Act 51 of 1977 , this sentence is
antedated to 08 September 2021.

73.3 The proceedings in respect of counts 8 to 10 are held not to be in
accordance with justice. Consequently, the conviction and the resultant
sentence s on counts 8, 9 and 10 are hereby set aside.


___________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT


___________________________
ADAMS M F
ACTING JUDGE OF THE HIGH COURT