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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1571 /2024
In the matter between :
RAMESA JOHANNES RATHEBE APPELLANT
and
THE STATE RESPONDENT
Neutral citation : Rathebe v The State (1571/2024) [2025] ZASCA 73 (30 May 2025 )
Coram: MOCUMIE, KEIGHTLEY and BAARTMAN JJA and PHATS HOANE and
HENNEY AJJA
Heard: This appeal was, by consent between the parties, disposed of without an
oral hearing in terms of s 19 (a) of the Superior Courts Act 10 of 2013.
Delivered: 30 May 2025
Summary: Criminal Law – Criminal Procedure Act 51 of 1977 (the CPA) – the proper
approach to adopt where an accused person whose erstwhile co -accused was found
not guilty and discharged in a separate appeal on the same facts – convictions based
on the uncorroborated evidence of a single witness – s 208 of the CPA.
2
ORDER
On appeal from : Gauteng Division of the High Court, Pretoria (B[...]-Mere AJ with
Davis J concurring, sitting as a court of appeal ):
1 The appeal is upheld .
2 The order of the high court is set aside and substituted with the following:
‘Accused 2 is found not guilty and discharged on all 11 counts of rape.’
JUDGMENT
Mocumie JA ( Keightley and Baartman JJA and Phatshoane and Henney AJJA
concurring):
[1] This is an appeal against the judgment and order of a full bench of the Gauteng
Division of the High Court, Pretoria (the high court) with spec ial leave having been
granted by this Court under the extraordinary circumstances which will become
apparent . The crisp issue for determination is whether the appellant , Mr Ramesa
Johannes Rathebe ( Mr Rathebe ), is entitled to an acquittal on all 11 counts of rape on
which he was convicted by the trial court . His appeal follows on an acquittal , in an
earlier appeal to this Court, of his erstwhile co -accused on the same charges and on the
same set of facts . The appeal is unopposed and the parties agreed that it be disposed
of without oral argument on Mr Rathebe ’s papers, as contemplated in s 19(a) of the
Superior Courts Act 10 of 2013 (the S uperior Courts Act).1
[2] First, I dispose of the application for condonation for the late filing of the appeal
which had lapsed. Mr Rathebe was released , on warning, from a correctional facility on
1 Section 19 (a) of the Superior Courts Act 10 of 2013 provides that the Supreme Court of Appeal or a
Division exercising appeal jurisdiction may, in addition to any other powers, dispose of an appeal without
the hearing of oral argument.
3
the directive of this Court in November 2023, after considerin g his co-accused’s appeal .
After Mr Rathebe and his erstwhile co -accused had had their sentences increased in an
appeal to the high court, he had not earlier applied for special leave to appeal to this
Court. However, on being advised of this Court’s directive, and assisted by the Legal
Aid Board, he pursued th e new opportunity to seek special leave to appeal in earnest .
Special leave to appeal was granted . Several problems occurred while the appeal was
on the Legal Aid Board’s desk, resulting in the late filing of the notice of appeal.
Consequently, the appeal lapsed. The reasons for t he period of delay ha ve been
sufficiently explained , and the State does not oppose condonation being granted . I can
conceive of no reason why condonation ought not to be granted and it is so ordered .
The appeal is reinstated.
[3] This appeal is a sequel to an appeal which served before this Court in
September 2023, Sekoala v The State (Sekoala ).2 Mr Rathebe is serving 20 years ’
imprisonment, albeit he was released on warning pending this appeal . The conviction
and sentence of h is erstwhile co-accused, Mr Sekoala , were overturned by this Court in
February 2024. He is similarly circumstanced as Mr Sekoala .
[4] The Constitutional Court i n Molaudzi v S (Molaudzi )3 highlights the difficulties that
can occur when former co -accused persons separately seek leave to appeal with
different outcomes. There , the accused persons were found guilty of murder and
robbery based on common purpose by the North West Division of the H igh Court,
Mafikeng . The high court and this Court on appeal , grounded on the inadmissibility of
the extra -curial statements , dismissed their appeal . In the Constitutional Court, Mr
Molaudzi , who was not legally represented, unsuccessfully applied for leave to appeal
on the basis that he was seeking leave to it on essentially an attack on the factual
findings of the trial court . That did not raise a proper constitutional issue for the
Constitutional Court to entertain it.
2 See the unreported judgment of this Court , Sekoala v The State (579/2022) [2024] ZASCA 18 (21
February 2024) (Sekoala ).
3 Molaudzi v S [2015] ZACC 20 ; 2015 (8) BCLR 904 (CC); 2015 (2) SACR 341 (CC) .
4
[5] In Mhlongo v S; Nkosi v S ,4 Messers Mhlongo and Nkosi , the erstwhile co -
accused of Mr Molaudzi applied for leave to appeal against their convictions and
sentences . Their application differed from that of Mr Molaudzi (in Molaudzi ) in that they
raised constitutional arguments pertaining to the admissibility of extra curial statements
of an accused person against a co -accused in a criminal trial. The Constitutional Court
considered the challenge to raise a meritorious constitutional issue which engaged its
jurisdiction ; the Court granted the applicants leave to appeal; and subsequently
overturned their convictions and they were released from prison.
[6] Under directions by the Constitutional Court, Mr Molaudzi brought a further
application for leave to appeal to the Court. He raised the same arguments as Messers
Mhlongo an d Nkosi . The question that arose was whether the refusal of his first
application for leave to appeal rendered his second application res judicata . Mr
Molaudzi argued that it did not. This was because the first application was an attack
against the factual findings of the trial court. It did not raise a constitutional issue and
accordingly did not engage the Court’s jurisdiction. Mr Molaudzi argued that the second
application dealt with the constitutional tenability of the admissibility of extra -curial
statements by an accused against a co -accused was not raised in the first application.
[7] The Constitutional Court found , inter alia , that ‘even though a constitutional
challenge was not raised and decided in the first application, the second application
ought to be considered res judicata as the merits of Mr Molaudzi’s appeal were
considered by [the] Court and ruled on ’.5 However, i t found , with reference to foreign
jurisdictions and precedents , that:
‘The general thrust is that res judicata is usually recognised in one way or another as necessary
for legal certainty and the proper administration of justice. However, many jurisdictions
4 The matter is reported as Mhlongo v S; Nkosi v S [2015] ZACC 19; 2015 (2) SACR 323 (CC); 2015 (8)
BCLR 887 (CC).
5 Op cit fn 3 para 21.
5
recognise that this cannot be absolute . This is because “[t]o perpetuate an error is no virtue but
to correct it is a compulsion of judicial conscience ”.’6
[8] The Constitutional Court exercis ed its powers under s 173 of the Constitution to
effect an outcome that served the interest s of justice . In doing so, it balance d the rule of
law and the need for legal certainty and finality in the administration of criminal justice –
which may be adversely affected if parties are allowed to approach the courts on
multiple occasions on the same matter – against the necessity to vindicate the
constitutional rights of an unrepresented , vulnerable similarly situated accused, who
would otherwise be denied relief. The Constitutional Court held, ‘[a]s in this case, the
circumstances must be wholly exceptional to justify a departure from the res judicata
doctrine ’.7 It concluded that the merits of Mr Molaudzi warranted the same conclusion
as his erstwhile co -accused, Messers Mhlongo and Nkosi.
[9] While the present case does not raise the same issue of res judicata , as was
raised in Molaudzi , the approach of the Constitutional Court in that matter, makes plain
the importance of the need to serve the interests of justice in cases where co-accused
person s have ‘split appeals’ and unfortunate anomalies consequently occur.
[10] Reverting to Mr Rathebe , it is common cause that he w as charged together with
Mr Sekoala on 11 counts of rape of one complainant. Both unsuccessfully appealed all
the convictions and sentences before the high court . On appeal before this Court ,
Mr Sekoala was found not guilty and discharged on all counts . In Sekoala , this Court
said:
‘The complainant’s evidence that she was raped by both Mr Sekoala and Mr Rathebe must be
considered along with the explanation given by both accused. Mr Rathebe’s version is wholly
exculpatory. He denied any sexual intercourse with the complainant. He confirmed his
knowledge about the troubled relationship Mr Sekoala and the complainant had. This was also
confirmed by Ms B[...]. His version was that the complainant asked him to talk to Mr Sekoala on
several occasions about their relationship, prior to the night in question, which he refused to do.
6 Ibid para 30. Quoting The Indian Supreme Court in M S Ahlawat v State of Haryana and Another 1999
Supp (4) SCR 160 para 15.
7 Ibid para 38.
6
On the night in question, he intervened when Mr Sekoala manhandled the complainant, trying to
chase her out of his house. He was present when Mr Sekoala told the complainant he wanted to
end their relationship. After Mr Sekoala told them to leave his bedroom, he and the complainant
went to the sitting room, where she was sobbing. He fell asleep and when he woke up the next
morning, the complainant was not there. He later saw her doing some chores in Mr Sekoala’s
bedroom .
The evidence of Mr Rathebe , is important in the scheme of how events unfolded on the night in
question. The trial court considered the complainant’s evidence in isolation. When the strengths
and weaknesses of both the State and Mr Sekoala’s version are considered, Mr Sekoala’s
version does not strike as one that could be viewed as being false beyond [a] reasonable doubt.
If there is a reasonable possibility of his version being true, he is entitled to an acquittal. The
court does not need to be convinced that he is telling the truth. Mr Sekoala’s evidence is
supported by Mr Rathebe’s, whose evidence was hardly disturbed in cross examination .
As regards the bruises found on the arms of the complainant, the trial court concluded that they
were sustained during the rape incidents when the two accused held her down. This was not the
only reasonable inference that could be drawn from the proven facts. The bruises could equally
have resulted from the aggressive manhandling by Mr Sekoala when she was being chased out
of the house. Unfortunately, this was neither explored with any witness during the trial , nor was
the doctor who examined the complainant called to explain which scenario would be consistent
with the bruises. Whether the bruises could only have been sustained when the complainant’s
arms were held to the ground whilst she was being raped was not tested. The trial court erred
by finding that they were consistent only with her version of rape by the two men. Since the
holding down of the hands while being raped was not the only reasonable inference to be drawn
from the bruises on the arms, the trial court materially misdirected itself. The accused ought to
have been given the benefit of the doubt.’8 (Emphasis added.)
[11] Sekoala emphasised the basic principles in criminal cases , which apply where
the State relies solely on the evidence of a single witness , as envisaged in s 208 of the
8 Sekoala paras 63-65.
7
Criminal Procedure Act 51 of 1977 ( the CPA).9 The principles have been stated and
applied in many judgments of th is Court10 and other courts. The trial court and the high
court did not follow these authorities .
[12] The basic rights impugned are clear. Section 35(3) of the Constitution, provides
for the right to a fair trial . Our criminal judicial system seeks to promote fairness for all
accused persons. It emphasises that fairness is a fundamental requirement of the
Constitution during a trial , meaning that a trial court must consider what is fair in the
circumstances and ensure that the accused person is treated fairly. Where a trial court
failed to do so , the appellate court must be extra careful not to repeat the same
misdirection. Section 9 of the Constitution provides for the equal treatment of all who
appear before the courts .
[13] It follows that , as with Mr Sekoala, the only evidence the State presented against
Mr Rathebe did not meet the high threshold of proof beyond a reasonable doubt. For
these reasons, Mr Rathebe is entitled to the benefit of the same doubt that Mr Sekoala
enjoyed , and on the same basis held by this Court in Sekoala .
[14] There remains one issue upon which some observations are appropriate . The
heads of argument which were originally f iled by the State comprised only three page s
which were of no assistance to this Court , nor in line with the Practice Directive s of this
Court. To demonstrate the point, page s three and four, which comprise the entirety of
the submissions made, are quote d verbatim :
‘INTRODUCTION ’
AD Par 1: Correct
MERITS
AD Par 2 and 3
9 Section 208 of the Criminal Procedure Act 51 of 1977 provides that an accused person may be
convicted of any offence on the single evidence of any competent witness as long as the evidence is clear
and satisfactory in every material respect.
10 Cupido v The State (1257/2022) [2024] ZASCA 4 (16 January 2024) and authorities cited therein.
8
The Respondent cannot refer to evidence that is implicating the appellant that did not implicate
his erstwhile co-accused .
CONCLUSION
The Respondent abides by the decision of this Court .
Signed at PRETORIA on this 13th day of October 2024. ’ (Emphasis added. )
[15] A directive was issued by this Court for the State to file proper heads of
argument. As prompted and i n due course , detailed ‘ Respondent’s Supplementary
Heads of Argument ’ were filed. In there, r eference was made to authorities not relevant
to the issue raised in the appeal . In addition, the author conceded the merits ‘cautiously ,
acknowledging that the constitution of the Court to decide this appeal is totally different
than the Honorable Judges that considered the appeal of the [a]ppellant’s erstwhile co-
accused , and who will be required to consider the evidence and draw their own
conclusions ’.11
[16] The prosecution represented by its own prosecutors , who are admitted
advocates of the high court of the respective divisions in which they serve, play a critical
role in the criminal court from the commencement of the trial until the final court of
appeal. While it may be so that they act under pressure and tight court schedules , this
cannot be an excuse for failing to file proper heads of argument . In this Court , the
prosecution is required to file heads of argument a month after the appellant has filed
theirs. That is sufficient time to be able to produce well -reasoned and detailed heads of
argument which will be of great assistance to this Court. Rule 1012 read with 10A ,13
11 Emphasis added.
12 Rule 10 provides:
‘(1) Unless the President otherwise directs —
(a) the appellant shall lodge with the registrar six copies of his or her main heads of argument within six
weeks from the lodging of the record; and
(b) the respondent shall lodge with the registrar six copies of his or her main heads of argument within
one month from the receipt of the appellant’s heads of argument.
(2) When the lodging of an application or record of appeal with the registrar does not allow the heads of
argument to be lodged and served in terms of subrule (1), the applicant or appellant, as the case may be,
shall file the same without delay and the respondent shall thereafter file the argument in answer as soon
as possible.
9
remains in place and must be adhered to. A failure to do so, as occurred with the initial
heads of argument filed in this case, amounts to a breach of a professional duty owe d
by them as representatives of the State in criminal matters, and to the Court.
[17] In the result , the following order issues.
1 The appeal is upheld .
2 The order of the full bench is set aside and substituted with the following:
‘Accused 2 is found not guilty and discharged on all 11 counts of rape .’
_______________________
B C MOCUMIE
JUDGE OF APPEAL
. . . .’ (Emphasis added.)
13 Rule 10A provides:
‘The heads of argument of each party must be accompanied by —
(a) a brief typed note indicating —
(i) the name and number of the matter;
(ii) the nature of the appeal;
(iii) a concise statement of the basis for jurisdiction in this Court, including the statutory provisions and
time factors on which jurisdiction rests;
(iv) if that party wishes to raise a constitutional question relating to the constitutional validity or the
constitutional applicability of any law or the constitutional validity or applicability or extension of a common
law rule, a concise definition of the question;
(v) the issues on appeal succinctly stated (for example “negligence in MVA case”, “admissibility of a
confession”, “interpretation of . . .”);
(vi) an estimate of the duration of the argument;
(vii) if more than one day is required for argument, the reasons for the request;
(viii) which portions or pages of the record are in a language other than English;
(ix) a list reflecting those parts of the record that, in the opinion of counsel, are necessary for the
determination of the appeal.
(x) a summary of the argument, not exceeding 100 words;
(xi) if a core bundle is not appropriate for the appeal, the reasons for the conclusion.
(xii) that there was due and timeous compliance with rule 8(8) and (9), and if not, why not; and
(b) a certificate signed by the legal practitioner responsible for preparing the heads of argument that rules
10 and 10A(a) have been complied with. . .’ (Emphasis added. )
10
11
Written Submissions
Counsel for the appellant: H L Albert s
Instructed by: Lega l Aid South Africa, Pretoria Office
Legal Aid South Africa, Bloemfontein
Counsel for the respondent: J P Krause
Instructed by: Director of Public Prosecutions, Pretoria
Director of Public Prosecution, Bloemfontein .