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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Appeal Case Number: A149/22
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE : 21/05/2025
SIGNATURE
In the matter between:
MOTLATSO LLOYD MOROTOBA First Appellant
HLENGANI JOHANNES RINGANI Second Appellant
and
THE STATE Respondent
___________________________________________________________________
Delivered: 21 May 2025 - This judgment was prepared and authored by the Judge
whose name is reflected and is handed down electronically by circulation to the
parties/their legal representatives by e -mail and by uploading it to the electronic file
of this matter on CaseLines and by release to SAFLII . The date for hand -down is
deemed to be 21 May 2025.
JUDGMENT
MOILA , AJ and NYATHI , J,
A. Introduction
[1] This is an appeal against conviction and sentence. The Appellants appeared
in the Pretoria Regional Court on two counts of Rape, Contravening section 3 of the
Criminal Law (Sexual Offences and related matters) Amendment Act 32 of 2007,
read with section 51(1) of schedule two of the Criminal Law Amendment Act 105 of
1997.
[2] Both Appellants were represented throughout the trial. T hey pleaded not guilty
on both counts and tendered a plea explanation in terms of section 115(1) of the
Criminal Procedure Act 51 of 1977 . The plea explanation was later reduced to
Admissions in terms of section 220 of the Criminal Procedure Act.
[3] The Appel lants' admissions were as follows :
On 27 September 2013, they were both police officers. They conducted a
patrol in a marked vehicle with registration number B[...]. They witnessed an
altercation between the complainant and h er boyfriend outside the Shebeen.
They intervened , and the complainant left with them in the police bakkie at
23:05 . The complainant sat in front of the motor vehicle with them in the police
bakkie. She wanted to go to the police station , and they dropped he r at 23:18 .
The second Appellant was the driver, and the first Appellant was a passenger.
They indicated that the complainant was under the influence of alcohol.
Both Appellants denied raping the complainant.
[4] On 15 September 2017, the two Appellants were c onvicted of two counts of
Rape ; the Court found that it was no doubt that the two Appellants acted for a
common purpose, and they were sentenced to two life imprisonment.
[5] Aggrieved by this, the two Appellants exercised their right of appeal under
section 309(1)(a) of the Criminal Procedure Act, seeking a reversal of the conviction
and sentence imposed by the Court a quo.
[6] The record of the proceedings is incomplete . However, it is still possible to
decide the case fairly.
B. Background facts
[7] On 27 Sep tember 2013, the complainant and her boyfriend, Tebogo, were at
the tavern or pub with other friends drinking alcohol. The complainant was drinking
wine. The complainant and her boyfriend quarrelled and pulled each other outside
the tavern. The Appellants, who are former South African police officers based at
Attridgeville police station and holding the ranks of student constable and warrant
officer, respectively , arrived at the tavern. They were driving a marked police bakkie .
The Appellants separated the complainant and her boyfriend and drove off with her.
[8] On 28 September 2013, at Attridgeville police station , just before 5:00 am, the
complainant reported that she was raped. The investigati ng officer took the
complainant for medical examina tion. Doctor Naledi Ramopo examined her. The
doctor completed a J88 stating that the complainant had tenderness inside her
vagina, and it happened after forceful penetration. The identity of the Appellants is
not in dispute.
C. Grounds of appeal
[9] The Appellants raised the following grounds on conviction:
The learned magistrate erred in finding that the State had proved its case
beyond a reasonable doubt in that ;
9.1 the evidence of the state witnesses is credible and not contradictory,
9.2 the appellants had unlawful sexual intercourse with the complainant
despite that there is no proof, specification, or confirmation of the alleged date,
time, and place of the sexual intercourse.
9.3 The learned magistrate erred in finding that the appellants should have
challenged the testimony of the motor vehicle tracking experts, despite the fact
that the said testimony supported their case, as the police vehicle in issu e had
shown no period of stoppage on that day,
9.4 The learned magistrate erred in finding the appellants guilty and ignored
the fact that the complainant was not a credible witness.
9.5 The learned magistrate erred in not taking into account the eviden ce of
Tebogo Mashiane, who testified that he and the complainant were drunk, and
the inconsistencies in the testimony of both the complainant and Tebogo
Mashiane.
9.6 The learned magistrate erred in not attempting to analyse the consistency
and cre dibility of the complainant’s evidence as presented in different stages,
that is , disciplinary hearing, initial testimony , and her testimony after being
recalled.
9.7 The learned magistrate erred in believing the complainant when testifying
that she felt the condom inside her vagina without explaining how she felt it.
9.8 The learned magistrate erred in ignoring the DNA report that exonerated
the appellants.
9.10 The learned magistrate erred in finding that there was no evidence under
oath by the app ellants when their bail application record on which they had
testified under oath was incorporated through the prosecutor's application to
form part of the record and in finding that version of the appellants as put forth
from the bar by the legal represen tative against the state witnesses testimony
is of no value or consideration, or is not part and parcel of the contestation of
the state witnesses’ testimony whether appellants did not testify.
[10] The following are the grounds for sentence :
10.1 The Court should have found that substantial and compelling
circumstances justif y imposing a lesser sentence.
10.2 The court erred in passing a sentence that is excessively inappropriate
and raises a sense of shock on the following grounds: the learned ma gistrate
failed to take into account the personal circumstances of the appellants,
10.3 the court a quo erred in not considering other types of sentences and or
short -term imprisonment,
10.4 the court erred in effecting a sentence that is shock ingly disproportionate
by overemphasizing the deterrent effect of the sentence, the seriousness of the
crime, and the interest of society,
10.5 the Appellants were sentenced to two life imprisonments besides the fact
that their capability of being rehabi litated,
10.6 The Appellants should be granted leave to appeal against the decision of
the learned Magistrate because a different court may arrive at a different finding
on both conviction and sentence.
D. Evidence
[11] The state led the evidence of f ive witnesses. The first witness was the
complainant, N[...] P[...]. She w as 17 years old at th e time of the alle ged rape . She
testified that she was with her boyfriend and other friends at a pub in Attridgeville.
They arrived there at around 21:00.
[12] She w as drinking wine. She and her boyfriend had a quarrel and pushed each
other until they were outside the pub. A motor vehicle, a Chevrolet -marked police
vehicle, arrived and stopped in front of them. Two police officers alighted from the
vehicle and separated them. The first Appellant f ought with Tebogo . She then went
inside the Chevrolet.
[13] The two police officers took the complainant and drove off. T ebogo remained
in the tavern. She asked them to go back to fetch her friend, who was staying two
houses away. The Appellants turned, drove, and stopped in front of her friend’s
house .
[14] The second Appellant told her to go to the back of the bakkie in order to sit
with her friend . The sec ond Appellant alighted from the vehicle and gave her space
to alight. She went to the back of the b akkie . The first Appellant was still sitting in the
motor vehicle.
[15] The second Appellant came to the back of the bakkie, closed the door, and
sexually penetra ted her . He used a condom. When he was done, the first Appellant
also sexually penetrated her. She was cry ing, but she did not shout or scream. She
had tears on her cheek s. After they were done, they shouted at her to go and sit in
front. They drove and dropped her off a street away from the police station.
[16] She did not go to the police station because she thought she would not get
help. She walked home, met her sister, and reported that police officers had raped
her. They went to her boyfriend , Tebogo, and then went to the police station and
reported the matter. She was taken to the hospital on the morning of 28 September
2013.
[17] The second witness was Naledi Ramopo. He is a medical doctor with 38
years of service. He qualified in 1976. On 28 September 2013 , he was on duty and
exami ned the complainant . He concluded that there was tenderness on the internal
vagina. This is in keeping with a forced penetration or rape.
[18] The third state witness was P[...] P[...]. She testified that on 27 September
2013 at 23:45, she was standing at the gate with her friend when she saw the
complainant approaching, crying. The complainant reported that two poli ce officers
had raped her . She related that she was with Tebogo and Rethabile at the pub. She
had an argument with Tebogo. She saw the police and ran to them. The case was
reported, they informed Tebogo , and she also accompanied her to the hospital.
[19] The ne xt witness was Tebogo Mash ego. He testified that he was the
complainant’s boyfriend. On 27 September 2013, he was with the complainant and
friends at the Tavern. It was approximately 21 hours. They ordered their drinks , and
an incident ensued between him a nd the complainant, and they went outside , pulling
each other. That's when the police arrived and enquired as to what was happening.
The complainant asked them to take her home , but he declined.
[20] The first Appellant then started pulling him around, and he could see that the
police officers were drunk. He could smell the alcohol. The complainant got inside
the police motor vehicle, and they drove off with her. Later, the complainant came
back , and she was crying. She alleged that those officers raped her. She was crying
profusely. He did not know those police officers before this incident . He did not have
sexual intercourse with the complainant on that day.
[21] The last witness was Mr Eric D eysel. He testified that he is employed by
Digicor Fleet Manageme nt and is a consultant at the South African Police Fleet.
They put devices on SAPS motor vehicles to monitor their movements. He referred
to exhibit G, which was handed in. It is the movement report of the motor vehicle with
registration number B[...] for the period 27 -28 September 2013.
[22] The state closed its case.
[23] The two Appellants applied to be discharged under section 174 of the
Criminal Procedure Act. The application was refused.
[24] Both Appellants elected not to testify. The defence case was closed.
E. Submissions
Appellants’ submissions
Conviction
[25] Counsel for the Appellants , Mr Molatelo Malowa, submitted that there was a
contradiction in the street name where the complainant alleged that the police
officers dropped her . The charge sheet stipulates that the crime scene is Mphalane
Street. The complainant stipulates that the crime scene is behind Maude. At the bail
hearing, evidence alleged the crime scene was at Semenya Street. He referred the
Court to a map of Attridgeville indicating the streets.
[26] Counsel for the Appellants further submitted that it is not in dispute that the
complainant was taken from the Tavern by the two Appellants. However, her
evidence was not clear , and it was contradictory. In this manner, she said she had
taken alc ohol, but she was not drunk ; yet her boyfriend said they were drunk.
[27] Counsel asserted that t he Aviation report handed in by the State does not
support the State’s case ; however, it supports the evidence of the t wo Appellants
regarding where the Appellants dropped the complainant.
[28] Counsel referred the Co urt to the version of the Appellants as testified in the
bail application that the complainant had requested them to take her to the police
station to report the assault case against her boyfriend , and not her home because
she had not given them the address.
[29] Counsel for the Appellants argued that it was common cause that she was
under the influence of alcohol. The question is , to what degree was the influence of
alcohol? He also urged the Court to take into account that she was a minor who was
under the influence . This is a 17-year-old girl, a school -going child, a minor for that
matter, who was at a tavern at 23:00 under the influence of alcohol and involved in
sexual activity; who requires the Court to believe her story.
[30] Counsel for the Appellants further submitted that the c omplainant was
probably too drunk to know exactly what happened, so she could not be believed.
After reporting the case at 01:00, the polic e made her sit at the police station until
5:30 to take her to the hospital. Which might show they wanted her to sober up.
[31] The version by the complainant was that she was wearing jean s, which w ere
below her knees above her ankle, lying on her back, and she could not have been
able to open her legs to allow penetration to her vagina. Hearing that the
complainant had stretched her legs while the Appellants were standing and having
sex with her in the bakki e is improbable.
[32] Counsel further argued that the allegation that the complainant's last sexual
intercourse was two weeks prior could not be true , because her boyfriend testified
that they usually meet on weekends .
[33] Mr Malowa submitted that the complainant w as not honest; she testified that
she felt a condom inside her vagina but did not see it. How do you feel that there is a
condo m? If this question is unfair, it determines how untruthful the allegation is .
[34] Counsel further argued that t he Court a quo ignore d the fact that the
complainant was a single, minor witness in a sexual offence case. Her evidence
must be satisfactory in all material respects; if not, the court will seek corroboration
from various facts before allowing such evidence. The credibility fi nding seems to
have been ignored by the Court a quo, considering the weakness in the witnesses in
the State’s case.
[35] In conclusion, counsel submitted that t he Appellants had elected not to testify
because DNA results excluded them from being the persons who sexually
penetrated the complainant. The Court cannot reject the defence version as averred
in the plea explanation or put to the state witness as untruth ful or false. The Court
must consider this; although the Appellants did not testify, their version was put forth
to the witnesses, and the bail transcript was part of the evidence to be considered.
Sentence
[36] Counsel for the Appellants submitted that the Cou rt should find that the
imposition of the minimum sentence was very harsh and unjust. The Court must not
take the sledgehammer approach where presenting mitigating factors is just paying
off lip service. He finally submitted that the h onourable Court shoul d uphold this
appeal against conviction and sentence and set them aside.
Respondent ’s submissions
Conviction
[37] Counsel for the Respondent , Ms Nazley January, submitted that the correct
approach for the Court to follow regarding a factual dispute between evidence of the
State and that of the defen ce is to apply its mind , not only to the merits and demerits
of the case or rather of the State and the defen ce witnesses , but also to the
probabilities of the case.
[38] Counsel argued that the re was no contra dictory evidence about the street
name. The complainant testified that she was raped behind Mau de street . Under
cross -examination, she stated that she did not know all the streets in Attridgeville. If
one examines the AVR report, it does not give the exact location, and the expert
confirmed that.
[39] Counsel further submitted that t he Appellants admitted that the y were with the
complainant. The charge sheet read s, “at or near Mphalane Street ”. Looking at the
map, Mphalane street is perpendicular to Ma ude street. If there were any
shortcomings, they could have been cured by section 88 of the C riminal Procedure
Act.
[40] Counsel for the Respondent asserted that the complainant, despite having
consum ed alcohol, could narrate what occurred that evening of 27 September 2013.
The Appellants admitted many aspects of her evidence . Her sister and boyfriend
corroborated her version of what happen ed before and after the rape. If one smells
of alcohol, it does not mean they are drunk. The Court has to evaluate her evidence;
she was a school -going 17 -year-old girl who was almost an adult.
[41] Ms January argued that Counsel for the Appellants is not an expert on
alcohol. There was no evidence from police officers that she had to sober up from
1:00 to 5:30a.m. It is not a material contradiction that the complainant testified that
she asked the police officers to take her home and her boyfriend said the police
officers volunteered to take her home.
[42] Counsel further submitted that no DNA report had been handed in. The
allegation was that the Appellants used condoms in raping the complainant. The
medical evidence also recorded that condoms were used. The doctor who examined
the complainant corroborated her version that she was raped. The doctor concluded
that “there is marked tenderness on vaginal examination. Th at was in keeping with
forced vaginal penetration” .
[43] Counsel argued that there is no rule book on how rape victims must behave.
Everyone acts differently. The complainant testi fied that she was crying, tears rolling
down her face. Any sexual history is inadmissible in terms of section 227 of the
Criminal Procedure Act . How do we expect a rape victim to count time when she is
being sexually violated ?
[44] Counsel for the Respondent reiterated that the complainant was a single
witness. Section 208 of the Criminal P rocedure Act regulates whether a single
witness’ evidence can be accepted. In R Mokoena ,1 the Court stated :
“Now the uncorroborated evidence of a single competent and credi ble witness
is no doubt declared to be sufficient for a conviction by [section 208], but in
my opinion, that section should only be relied on where the evidence of a
single witness is clear and satisfactory in every material aspect .”
[45] Ms January further sub mitted that t he complainant testified that when she was
at the back of the bakkie, she was lying on her back. She resisted with the second
Appellant . He then pulled down her jeans to below her knees and above her ankles.
He then forced her legs open and inserted his penis into her vagina without her
consent. She started crying. She also testified that he was wearing a condom. The
other Appellant then foll owed and did the exact same thing. The complainant went
as far as demonstrating to the Court how the rape was done. She showed the Court
how the second Appellant forced her legs open.
[46] Counsel asserted that the evidence tendered in Court meets the definitio n of
rape in terms of section 3 of the Sexual Offences Act 32 of 2007. She testified that
both Appellants inserted their penis into her vagina without her consent , and both
used condoms. She did not see it as it was dark, but she felt the condom.
1 1932 OPD 79 at 80 .
[47] Counsel r eferred the court to section 35(3)(h) of the Constitution , which states
that “Every accused person has a right to a fair trial, which includes the right to be
presumed innocent, to remain silent and not to testify during the proceedings ”.
[48] Counsel referred the Court to State v Allan Boesak (“Boesak”) ,2 where the
Court stated the following :
“The right to remain silent has application at different stages of a criminal
prosecution. An arrested person is entitled to remain silent and may not be
compelled to make any confession or admission that could be used as
evidence against that person. It arises again at the trial stage when an
accused has the right to be presumed innocent , to remain silent and not to
testify during the proceedings. The fact that an accused person is under no
obligation to testify does not mean that there are no consequences attach ing
to a decision to remain silent during the trial . If there is evidence calling for an
answer , and an accused person chooses to remain silent in the face of such
evidence, a court may well be entitled to conclude that the evidence is
sufficient in the absence of an explanation to prove the guilt of the accused.
Whether such a conclusion is justified will depend on the weight of the
evidence ”. (footnotes omitted)
[49] Judge Langa (DP) , in Boesak , also referred to Madala J in Osman and
Another v Attorney – General , Transvaal ,3 where the following was said:
“Our legal system is an adversarial one. Once the prosecution has produced
sufficient evidence to establish a prima facie case, an accused who fails to
produce evidence to rebut that case is at risk. The failure to testify does not
relieve the prosecution of i ts duty to prove guilt beyond reasonable doubt. An
accused, however, always runs the risk that , absent any rebuttal, the
prosecution's case may be sufficient to prove the elements of the offence. The
fact that an accused has to make such an election is no t a breach of the right
2 2001 (1) SA 912 (CC) at para 24.
3 1998 (4) SA 1224 (CC) . at para 22.
to silence. If the right to silen ce were to be so interpreted, it w ould destroy the
fundamental nature of our adversarial system of criminal justice. ” (footnotes
omitted)
[50] Counsel for the Respondent argued that t he two Appellants did not testify. In
as much as the proceedings of bail form part of the trial record, the evidence must be
led during the trial, and a failure to lead such evidence relegates such evidence to
hearsay evidence, which is inadmissible.
[51] Counsel furt her referred the Court to S v Katoo ,4 where Jafta AJA , as he then
was, had this to say :
“The other issue relates to the weight attached by the trial Judge to the
defence version which was put to the State witnesses under cross -
examination. It was treated as if it were evidence when the trial court
considered its verdict on the merits. As the respondent failed to place any
version before the Court by means of evidence. The Court's verdict should
have been based on the evidence led by the prosecution only .”
[52] In conclusion , counsel submitted that a s indicated previously, the Appellants
have no evidence before this court, even though they testified in the bail
proceedings. For that evidence to become available, they needed to testify at the
trial. It is clear that the State discharges the onus of proof in a criminal case if the
evidence establishes the guilt of the accused beyond reasonable doubt. The State
submits that the prosecution proved its case beyond reasonable doubt.
Sentence
[53] Counsel for the Respondent referred the Court to State v Malgas :5
"Courts are required to approach the imposition of sentence conscious that
the Legislature has ordained life imprisonment (or the particular prescribed
4 2005 (1) SACR 522 (SCA) at para 19.
5 2001 (1) SACR 469 (SCA) at para 25.
period of imprisonment ) as the sentence that should ordinarily and in the
absence of weighty justification be imposed for the listed crimes in the
specified circumstances. Unless there are, and can be seen to be, truly
convincing reasons for a different response, the crimes in q uestion are
therefore required to elicit a severe, standardized and consistent response
from the courts. The specified sentences are not to be departed from lightly
and for flimsy reasons. Speculative hypotheses favourable to the offender,
undue sympathy, aversion to imprisoning first offenders, personal doubts as to
the efficacy of the policy underlying the legislation, and marginal differences in
personal circumstances or degrees of participation between co -offenders are
to be excluded ."
[54] Counsel further referred to S v C :6
“Rape is regarded by society as one of the most heinous of crimes , and rightly
so. A rapist does not murder his victim - he murders her self -respect and
destroy s her feeling of physical and mental integrity and security. His
monstrous deed often haunts his vi ctim and subjects her to mental torment for
the rest of her life – a fate often worse than the loss of life . . . . Society
demands protection in the form of heavy and deterrent sentences from the
courts against such atrociou s crimes”
[55] Ms January , in her submissions that sentence granted by the Court a quo is
proportional to the offence committed , referred to S v Vilakazi ,7 where the court , at
paragraph 58 , stated that in cases of serious crimes, the personal circumstances of
the offender by themselves will necessarily recede into the background. Once it
becomes clear that the crime is deserving of a substantial period of imprisonment,
the questions of wheth er the accused is married or single, or whether he has two or
three children, or whether or not he is in employment, are in themselves largely
immaterial to what the period should be, and those seem to me the kind of flimsy
reasons or grounds that Malgas said should be avoided.
6 1996 (2) SACR 18 1 (C) at 186D -E.
7 2012 (6) SA 353 (SCA).
[56] Counsel for the Respondent respectfully submitted that in terms of section
51(1) of the Criminal Law Amendment Act 105 of 1997, the Legislature has ordained
these hefty sentences. Regarding the Appellants’ personal circumstances, not hing
was placed before the Court that was substantial and compelling to warrant deviat ion
from the minimum sentence.
[57] In conclusion , counsel submitted that t he aggravating circumstance was that
the Appellants were both police officers whose job was to prote ct the community.
The complainant told the social worker that she saw the Appellants as her rescue ;
she trusted them that evening. The damage inflicted on the complainant, who was 17
years old at the time, will have a serious impact on her for the rest of her life. For all
these reasons, she respectfully submitted that the appeal against conviction and
sentence be denied.
F. AD CONVICTION
[58] When evaluating or assessing evidence, it is required that all evidence must
be evaluated. Judge Nugent , as he then was, in S v Van Der Meyden ,8 stated that:
“What must be borne in mind, however, is that the conclusion which is
reached (whether it be to convict or acquit) must account for all the evidence.
Some of the evidence might be found to be false; some of it might be found to
be unreliable; and some of it might be found to be only possibly false or
unreliable, but none of it may simply be ignored.”
[59] In S v Hadebe and Others ,9 the flynote reads:
“Trial court's evaluation of evidence – Presumption that trial Court’s findings of
fact are correct - In the absence of demonstrable and material misdirection by
trial Court, its findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly wrong - In
determining whether the trial court's findings of fact were clearly wrong, it is a
8 1999 (1) SACR 447 (W) at 450A -B.
9 1998 (1) SACR 422 (SCA).
useful aid to break the body of evidence down into its component parts, but in
doing so, one must guard against a tendency to focus too intent ly upon
separate and individual parts of what is, after all, a mosaic of proof. Evidence
ultimately to be assessed as a whole.”
[60] The State presented the evidence of five witnesses: the complainant, her
boyfriend, her sister, the doctor, and Mr Deysel. The complainant testified that she
was at a pub with her boyfriend and some friends. They quarreled and pulled each
other outside the pub.
[61] The Appellants arrived and separated them. She requ ested that they take her
home and dr ove off with them. They drove and stopped on the street behind Maude
street and told her to go to the back of the bakkie while they went to collect her
friend, as she requested , so that she could sit with her friend .
[62] The second Appellant alighted and gave her space to alight. She went to the
back of the Bakkie; the second Appellant followed her and sexually penetrated her
using a condom. The first Appellant also came and sexually penetrated her. They
dropped her and left.
[63] She walked , met her sister at the gate , and reported the rape to her. They
went to her boyfriend and reported the ordeal. They accompanied her to the police
station and the rape case was reported .
[64] She was taken to the hospital and ex amined by the doctor. Her sister
corroborated her version of what happened after the rape. The complainant arrived
where she was and reported that the police raped her . Her boyfriend also
corroborated her version of what happened before and after the rape. The doctor
supported her evidence by concluding , after examination , that there was tenderness
in her vagina , and that is in keeping with forced vaginal penetration.
[65] The complainant was a single child witness who was 17 years old. Experience
has shown that most rape victims are single witnesses. In the landmark case of S v
Jackson ,10 the Supreme Court of Appeal’s ruling effectively eliminated the cautionary
rule in sexual assault cases, acknowledging that it was discriminatory and
inappropriate.
[66] Section 208 of the Criminal Procedure Act provides that an accused may be
convicted of any offence on the single evidence of any witness. The complain ant
made a favorable impression on the Court a quo . Despite being a minor, her
evidence was found to be clear, satisfactory, and reliable in all material respects.
[67] In S v Sauls and Others ,11 the Court held that there is no rule of thumb test or
formula to apply when it comes to a consideration of the credibility of a single
witness. The trial Judge will weigh his evidence, consider its merits and demerits
and, having done so, decide whether, despit e the fact that there are shortcomings or
defects or contradictions in the testimony, he is satisfied that the truth has been told.
[68] The two Appellants made Admissions in terms of section 220 of the C riminal
Procedure Act. They corroborate d the version of t he complainant. The only issue in
dispute was the sexual intercourse. The Appellants’ basis of defence was a bare
denial.
[69] Counsel for the Appellants submitted that the Court must not believe the
evidence of a school -going child, a minor who was at the tavern at 23:00, under the
influence of alcohol and involved in sexual activity. It is impossible for the
complainant to have felt a condom inside her vagina. It was impossible for rape to
have occurred at the back of the bakkie.
[70] I am appalled , if not disa ppointed by counsel’s submissions. Does the fact
that the complainant is young, drinks alcohol, and is sexually active make her a bad
witness? How does counsel know that women cannot feel the condom? I agree with
counsel for the Respondent that an inspecti on in loco was not done on the police
bakkie to conclude that it was impossible.
10 1998 (1) SACR 470 (SCA) .
11 1981 (3) SA 172 (A).
[71] In S v Chapman ,12 the Supreme Court of Appeal articulately stated that
women in this country have a legitimate claim to walk peacefully on the streets to
enjoy their shopping and entertainment, to go and come from work, and to enjoy the
peace and tranquility of their homes without fear, apprehension, or insecurity, which
constantly diminishes their quality and enjoyment of life .
[72] The Appellants elected not to testify. Counsel for the Appellants submitted
that the Court could not reject the defence version as averred in the plea explanation
or put to the state witness as untruthful or false. The Court must also consider the
version of the Appellants’ bail transcript.
[73] The Appellants’ failure to give evidence must be considered along with all the
other factors in the matter to ascertain whether their guilt has been proven beyond
reasonable doubt. The value to be attributed to their failure to give evidence depends
upon the s urrounding circumstances of the matter.
[74] The Court agree s with counsel for the Respondent that the bail proceedings
are not admissible in trial proce edings. In S v Sibeko ,13 the Court stated :
“The District Court record of bail proceedings may have been part of the
record of proceedings that were transferred to the regional court, but that did
not automatically render it part of the trial record. It is so that section
60(11B)( c) of the CPA not o nly makes the record of the bail proceedings part
of the record of the subsequent trial record , but makes any evidence that the
accused elects to give at the bail hearing admissible against him or her at trial,
provided the court hearing the bail applicati on had warned the accused of the
risk of such use. The record of the bail proceedings is neither automatically
excluded from nor included in the evidentiary material at trial. Whether or not it
is to be excluded is govern ed by the principles of a fair trial. The regional
magistrate seems to have mistakenly interpreted this bail provision to mean
that the record of the bail proceedings is automatically admissible in toto. ”
12 1997 (3) SA 341 (SCA) at 345A -B.
13 2024 (2) SACR 25 (NWM) at para 17.
[75] It is trite that all versions must be repeated under oath and tested in cross -
examination before any Court can accept any facts and, in turn, attach evidentiary
weight to the said evidence. Versions put to the witnesses must , alike, be repeated
under oath and be tested in cross -examination before any party c an argue that the
truth was told.
[76] The Court is mindful of the fact that no duty rests upon the accused to prove
his innocence. However, in light of the strong evidence implicating the Appellants ,
one would have expect ed them, in these circumstances , to ans wer to the allegations
if they are innocent. The defence put forward during plea explanation, or cross -
examination of the state witnesses , could have been repeated with ease and even
conviction in the witness box.
[77] The fact that this was not done, after pro per consideration, the Court found
that they knew that its untruthfulness would have been exposed during cross -
examination.
[78] As a result , this Court is satisfied that the trial Court rightly convicted the
Appellants. The appeal against conviction must fail.
G. AD SENTENCE
[79] I now turn to the question of sentence. In terms of section 51(1) of Schedule
Two of the Criminal Law Amendment Act 105 of 1997 , on conviction of rape by more
than one person, the Court was bound to sentence the Appellants to life
imprisonment unless there were substantial and compelling circumstances justifying
a lesser senten ce.
[80] In S v C,14 the Court stated that rape is regarded by society as the most
heinous of crimes, and rightly so. A rapist does not murder his victim, he murders her
self-respect and destroys her feeling of physical and mental integrity and security.
14 Above n 6.
[81] In Maila v S ,15 the Court stated that:
“With the onslaught of rape on children, destroying their lives forever, it cannot
be ‘business as usual .’ Courts should, through consistent sentencing of
offenders who commit gender -based violence against women and children,
not retreat when duty calls to impose appropriate sentences, including
prescribed minimum sentences. ”
[82] The general principles governing the imposition of a sentence in terms of the
Minimum Sentences Act, as articulated by the Supreme Court of Appeal in Malgas ,
have been endorsed by our Courts and cannot be ignored.
[83] In S v Matyityi ,16 the Supreme Court of Appeal reaffirmed that:
“The fact that parliament ha d enacted the minimum sentencing legislation was
an indication that it was no longer ‘business as usual ’. The court no longer
had a clean slate to inscribe whatever sentence it thought fit for the specified
crimes. It had to approach the question of sentencing , conscious of the fact
that the minimum sentence ha d been ordained as the sentence which
ordinarily should be imposed , unles s substantial and compelling
circumstances were found to be present.”
To avoid these sentences , the accused must satisfy the Court that substantial and
compelling circumstances exist to justify a lesser sentence.
[84] The Court a quo consider ed the totality of the evidence, mitigating and
aggravating circumstances , and found that there were no substantial and compelling
circumstances justifying a lesser sentence. It follows , accordingly , that there is no
misdirection by the trial Court. There is, accordingly, no merit in the appeal against
the sentence . The sentence of life imprisonment is , therefore, confirmed.
[85] The following order is made;
15 [2023] ZASCA 3 at para 59 .
16 2011 (1) SACR 40 (SCA) at para 11.
Appeal against conviction and sentence is dismis sed.
_______________________________
N L MOILA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I AGREE AND IT IS SO ORDER ED
_______________________________
J S NYATHI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
Counsel for the Appellants : Molatelo Malowa SC
Instructed by Zamisa Shisinga Attorneys
Counsel for the Respondent : Nazley January
Instructed by the State.
Date of hearing : 19 March 2025
Delivered: 21 May 2025