SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
(EAST ERN CAPE DIVISION , MAKHANDA )

APPEAL CASE NO: C A&R 23/2025
REPORTABLE

In the matter between :

J[...] S[...] APPELLANT

and

THE STATE RESPONDENT


JUDGMENT


Noncembu J

[1] The appellant was convicted on a charge of rape in contravention of Section 3
of the Criminal Law Sexual Offences and Related Matters Amendment Act 32 of
2007 . The offence fell under the ambit of section 51 (1) of the Criminal Law
Amendment Act 105 of 1997 as amended , in that it was committed on diverse
occasions between the period of 2016 and 2019, and the complainant was 6 years

old at the time of offence . He was sentenced to imprisonment for life on 19 October
2021 .

[2] In exercis ing his automatic right of appeal ,1 he is now appealing against both
his conviction and sentence .

The grounds of appea l

[3] On the merits, the appellant contends that the court a quo failed to administer
the oath on the complainant or to properly admonish her before her testimony was
taken in court , thus rendering her evidence inadmissible. It is further contended that
the court failed to properly assess the evidence tendered and to apply the necessary
caution in assessing the evidence of the complainant who was a single witness and
a child at the time of testifying in court. The submission is that the court erred in
finding that the s tate proved its case beyond reasonable doubt, given the material
contradictions in its cas e.

[4] In respect of sentence, it is contended that the court a quo erred in not
considering the personal circumstances of the appellant, s pecifically and of material
significance , his advanced age which inter alia , constituted substantial and
compelling circumstances.

Factual background

[5] It was common cause between the parties that the complainant was 6 years
old at the time of the offences and 11 years when she testified in court. As can be
ascribed to her you ng age, she could not recall the specific dates and times of the
offences when she testified in court . Summarily, her evidence was that she was
raped by two people, one uncle Jimmy and uncle Jacky ( the appellant ), during the
period 2016 and 2019. The appel lant raped her on four occasions but her testimony
in court pertained to two incidences only.


1 Section 309(1)(a) of the Criminal Procedure Act no 51 of 1977 (the Act ).
[6] On the first occasion , she was at home when the appellant ca me to her bedroom.
She could not recall if this was during the day or during the night. Her maternal
grandmother (R[...] ), who was married to the appellant and with whom she was
staying together with the appellant, was drunk and sleeping in the other bedroom.
Inside the bedro om the appellant asked her to pull her pants down and when she
refused , he pulled them down himself and pulled down his own. He laid the
complainant on the bed on her back and had sexual intercourse with her. When she
wanted to scream , he threatened to kil l her with an okapi knife which was under the
pillow.

[7] The second incident occurred on another day during the day . Her
grandmother was not at home as she had gone to the shop. On this day t he
appellant called her to his bedroom . Once they were inside the bedroom , he asked
her to pull down her pants. She refused and the appellant pulled them down himself .
He also pulled his own pants down and had sexual intercourse with her anally. She
did not tell her grandmother (R[...] ) about these incidences .

[8] Much later o n a date she could not recall, she reported the rape incidences to
her paternal grandmother, P[...] when she was visiting her in P ersev erance .

[9] P[...] testified and told the court that the complainant came to stay with her
during the hard covid lockdown between March and April 2020. In the course of her
stay, P[...] noticed that there were some changes in the behaviour of the
complainant , who used to be a friendly c hild before. She had become aggressive
and was fighting with the other children. She took her to a pastor ( who is now late)
who was conducting some counselling sessions at the time. After the intervention of
the pastor the complainant reported to her that she had been raped by the appellant.

[10] The report was that one morning her maternal grandmother (R[...] ) had gone
to the shop to buy lunch for her (the complainant). As she was getting ready for
school, the appellant grabbed her from behind, threw her on the floor and had sexual
intercourse with her. When her grandmother came back , they both stood up and the
complainant ran to the toilet as she was bleeding. She never reported the incident to
her grandmother (R[...] ).

[11] P[...] took the complainan t to Dora Nginza hospital where she was examined.
The forensic nurse who examined the complainant at the Thuthuzela centre situated
at the hospital, Mr Fezile Mtini (Mr Mtini) , also testified in court. His qualifications and
expertise were not placed in i ssue.

[12] Mr Mtini told the court that he examined the complainant on 1 May 2020 at 10
in the morning. He did not collect any DNA samples or clothing from her. The
complainant was 10 years old and accompanied by her grandmother P[...]. The
history he was given by the grandmother was that the child had been sexually
assaulted by a known male who was a family friend on 26 April 2020 around 12
noon. There were no physical injuries noted on the clinical examination and
everything was normal .

[13] On the gynaelogical examination he noted some healing bruises on the
posterior fourchette and the vestibule fossa navicularis. The hymen was completely
eroded. His conclusion was that the healing bruises and the absence of the hymen
were consistent with se xual penetration which happened plus/minus 5 days ago. The
injuries were noted on the schematic drawing in the J88 which formed part of the
evidence. Mr Mtini also explained that the completely eroded hymen meant that
penetration had happened on more than one occasion.

[14] The appellant denied raping the complainant, alleging that she may have
been told by her paternal grandmother, P[...], to implicate him as the perpetrator.

Failure to administer the oath and whether the complainant was properly
admon ished

[15] Counsel for the appellant argued that the conduct of the regional magistrate in
failing to administer the oath on the complainant, after finding that she understood
the nature and import of the oath, rendered her testimony inadmissible. In addit ion, it
is counsel’s contention that the child witness was not properly admonished, thus ,
even on that score her testimony did not bear the status and character of evidence
before court.

[16] The court, after conducting the competency test and satisfying itself that the
complainant , who was test ifying via an intermediary, was a competent witness, went
further and conduct ed an enquiry into whether or not the complainant understood the
nature and import of the oath. It is necessary to recount the enquiry that ensued in
order to properly contextualise the argument raised by counsel for the appellant . It
proceeded a s follows:2

Court : ‘JDJ [. . .] do you know what it means to take an oath?
JDJ[. . .]: No your worship .
Court: Okay, do you go to church?
JDJ [. . .]: Yes
Court: Okay, and which church do you go to?
JDJ [. . .]: Evangelie
Court: Okay, thank you. Do you believe in God?
JDJ [ …]: Yes, your worship.
Court: Do you know what it means when a person makes a promise to
God?
JDJ [. . .] : Yes, your worship .
Court: Please tell me what it means.
JDJ [… ]: You must not lie, your worship, for an elderly or to God as well.
Court: Do you know what will happen if a person makes a promise to
God to tell the truth and that person d oes not keep that promise?
JDJ [. . .]: You go to hell. You go to devil…
Court: Okay, okay, and in court , do you know what it means to take an
oath?
JDJ […]: No.
Court: Okay, You have never been in court ?
JDJ […]: No.
Court: Okay. Okay. An y questions on the oath ?
Prosecutor: Not from my side your worship.
Mr Nyoka: None, your worship.

2 In order to protect the ident ity of the complainant who was a child witness , she is referred to as JDJ
for pur poses of this judgment.
Court: Thank you. The court finds that the witness understand the
nature and import of the oath. However, she does not understand the court ,
the oath in court. I will, I have also proce eded in terms of section 164 of the
Criminal Procedure Act 51 of 1977. ’

[17] At this juncture, the court proceeded with the enquiry as to whether or not the
witness can distinguish between the truth and falsity. The enquiry proceeded thus –

‘JDJ [. . .] : Do you know what is the difference between a truth and a lie .
JDJ [. . .] : Yes.
Court: Please tell me what it is ?
JDJ [. . .]: So, if you say to a person something had happened that did not
happen, then you must know it is a lie.
Court: Okay. So, what is the colour of the clothes you are wearing?
JDJ [. . .]: Black.
Court: Okay. If I tell you that you are wearing red clothes today, will I be
telling a truth or a lie?
JDJ [. . .]: It is a lie.
Court: Is it a good thing or a bad t hing to tell lies?
JDJ [. . .] It is a wrong thing.
Court: Okay. At school are you allowed to tell lies?
JDJ [. . .] : No.
Court: Okay . What happens to a child if that child tells lies at school?
JDJ [. . .]: I do not know yet.
Court: Have you ever told lies at school?
JDJ [. . .]: No.
Court: If another child is telling lies at school , does the teacher do
anything to that child?
JDJ [. . .]: That child would be taken to the office.
Court: Okay. So you have been a good child, you have never been
taken to the office because you are telling lies at school?
JDJ [. . .]: Yes.
Court: And at home, does your grandmother allow a child to tell lies?
JDJ [. . .]: No.
Court: If a child tells lies at home, what happens to that child?
JDJ [. . .]: They go straight to hell .
Court: Okay. Any questions, Mr Van Biljon?
Prosecutor: None from the state. Thank you your worship . . .
Court: Mister . . . (intervention)?
Mr Nyoka: None, your worship.
Court: Okay. The court is satisfied that the child does understan d the
difference between a truth and a lie and the consequences thereof. JDJ [. . .],
I am going to warn you today to please tell the truth and nothing else but the
truth.
… (admonished through intermediary)
Court: Okay. And unlike at school, here you will not be taken to the
office . You are only required to tell what you saw with your own eyes and not
what you were told by somebody else.
JDJ [. . .]: Yes , your worship. ’

[18] Two primary concerns immediately loom from the ab ove two enquiries. Whilst
I cannot fault the questioning of the regional magistrate in respect of the first enquiry
(whether the child understands the nature and import of the oath ), her finding at the
end is somewhat con voluted . She finds on the one hand, that the child understands
the nature and import of the oath. However, o n the same score she goes further and
make a finding that the child does not understand an oath in court. (Emphasis
intended)

[19] This is the crux of the a rgument by counsel for the appellant . He contends
that, having found that the child underst ood the nature and import of the oath , the
court was required to swear her in as provided for in terms of the law before taking
her testimony. And having failed to d o so, it means that the child’s testimony was not
under oath, and therefore inadmissibl e.

[20] The second challenge mounted by counsel for the appellant, is the manner in
which the child was admonished by the court . The court in admonishing the child
took away the very essence of the warning that is en gendered in admonishing a
witness ie. the consequence of not telling the truth in court .3 She warns the child that
whilst she is required to tell only the truth in cour t, unlike at school, she will not be
taken to the office if she does not comply. This statement can be construed to imply ,
especially to a n 11-year-old young mind, that unlike at school, in court there are no
consequences for not telling the truth.

The Legal Principles

[21] Section 192 of the CPA provides that every person not expressly excluded by
this Act from giving evidence shall, subject to the provisions of section 206, be
competent and compellable to give evidence in criminal proceedings.

[22] In terms of section 193 of the CPA , a court is obliged to decide on the
competency or compellability of any witness to give evidence. Evidence is normally
given under oath. When a witness is called to testify, an oath is administered to
ensure that he does not speak carelessly and frivolously , rather s/he evaluates
her/his words to convey the gravity of the situation and most importantly, the oath
is administered to provide a penalty against untruthfulness. (Emphasis
intended)

[23] Section 162 of the CPA provides as follows:

‘Witness to be examined under oath:
(1) Subject to the provisions of Section 163 and 164, no person shall be
examined as a witness in criminal proceedings unless he is under oath,
which shall be administered by the presiding judicial officer or, in case of
a superior court, by the presiding judge or the registrar of the court, and
which shall be in the following form:

“I swear that the evidence I shall give, shall be the truth, the whole truth
and nothing but the truth, so help me God .” ’


3 Section 164(2) of the CPA.
[24] It is settled in our law that the testimony of a witness who has not been placed
under oath properly, has not made a proper affirmation or has not been admonished
to speak the truth as provided for in the Act, lacks the stat us and character of
evidence and is inadmissible.4

[25] The provisions of Section 162 are peremptory ; however, they may be
departed from under the circumstances set out in sections 163 and 164 of the CPA.
Any person, who is found not to understand the nature and import of the oath
or affirmation, may be admitted to give evidence in criminal proceedings without
taking the oath or making the affirmation, provided that such person in lieu of the
oath or affirmation is admonished by the presiding judge or judicial officer to
speak the truth .5 (Emphasis intended).

[26] Discernible from the above is that s ection 164(1) is resorted to when a court is
dealing with the admission of evidence of a witness who , from obliviousness or
ignorance arising from youth, defective or sub-standard education or other cause, is
found not to understand the nature and significance of the oath or the affirmation.
Such a witness must instead of being sworn in or affirme d, be admonished by the
judicial officer to speak the truth. It is clear from the reading of the provision that
for it to be triggered there must be a finding that the witness does not
understand the nature and import of the oath.6

[27] The words ‘is found’ in section 164(1) ha ve been held to indicate that a proper
enquiry must be conducted in order to determine whether an oath can be
administered to the witness.7 The first duty of the court, therefore, is to enquire
whether a child tendered as a witness understands the meaning and r eligious
sanction of an oath.8 In S v N 9 Van Reen J held :


4 S v Matshiva 2014 (1) SACR 29 (SCA) at [10]; Henderson v S 1997 (1) All SA594 (C), S v
Bezuidenhout 2002 (4) All SA 230F .
5 Section 164 of the CPA .
6 S v Matshiva (supra ) at [11].
7 S v Pienaar 2001 (1) SACR 39 (C) ; S v Malinga 2002 (1) SACR 615 (N ).
8 The South African Law of Evidence 3rd Edition, Ch 20 at page 935 .
9 1996 (2) SACR 225 (C) .
‘It is s elf -evident that that purpose is not attainable where a witness lacks the
capacity to understand and assume the religious obligation of the oath.
Accordingly, a court before administering the oath to a child or any person
who is lacking in formal education or for any other reason might not have the
required capacity, enquire whether such a witness understands the meaning
of and possess the capacity to appreciate and accept the religious sanction of
the oath. If after such an enquiry, the court finds that th e witness does not
possess the required capacity, it should establish whether he or she
understands what it means to speak the truth as in the absence of the
capacity to distinguish between “truth and falsity….and to recognise the
danger of wickedness of l ying… ”, he or she is not a competent witness. The
capacity to distinguish between the truth and falsity is furthermore a
prerequisite for the making of an affirmation or an admonition in terms of
sections 163 and 164 of the Act .’

Discussion

[28] From the questions posed by the regional magistrate to the complainant in the
present matter and the answers provided, it becomes readily apparent that the child
has a full understanding of the meaning and religious sanction of the oath. Granted,
the concept of ‘oath’ is an abstract to an 11-year-old. But broken down to its bare
essentials , the child had a clear understanding of what it means and the religious
sanction that goes with it . In her own words she explained the religious obliga tion
entailed in making a promise to God, and the religious sanction that follows should
one fail to keep that promise . That in my view is the very essence of section 163 ,
hence I am satisfied that a proper assessment was conducted , and a proper finding
was made in this regard.

[29] To formulate a question about an ‘oath in court’ would be confusing even to
an adult witness who has never been to court before , as it underscores an
implication that an ‘oath in court ’ is different to the concept of an ‘oath’ as explained
above. Clearly, that is a misnomer. The complainant in the present matter clearly
demonstrated that she had the requisite capacity to understand the nature and
import of taking an oath. Therefore, she should have been sworn in before her
testimony was taken.

[30] As stated above ,10 a witness can only be admonished if s/he is f ound not to
understand the nature and import of the oath. The finding of the court clearly
exclude d the complainant from the latter category. This notwithstanding , the court
went on to admonish the child. This, however, did not resolve the problem of
unsworn testimony by the complainant.

[31] In admonishing the child the regional magistrate also told her that unlike at
school , she w ould not be taken to the office if she does not tell the truth in court.11
She then left that statement open without indicating that consequences of a different
kind apply in court. As stated before , anyone, especially a n eleven -year-old child,
could easily construe that statement to imply that unlike at school, no consequences
follow when one tells an untruth in court. This puts paid to the very essence of an
oath/affirmation/ admonishing a witness , which is to provide a penalty for
untruthfulness.

[32] This in my view, means that even if one were to accept that it was proper for
the court to admonish the complainant in terms of section 164 , the enquiry process
that was followed thwarted the very essence of the provision . In S v Mali12 it was said
that the ‘importance of truthfulness is covered by an enquiry satisfying the court that
the child witness understands that an adverse sanction will generally follow the
telling of a lie .’ The regional magistrate clearly attenuated this material feature when
she was admonishing the child. Given these circumstances it is my view therefore
that the child was not properly admonished .

[33] Now the question that one must answer is whether it can be said that this
notwithstanding, admission of the said evidence would not be prejudicial to the rights
of the appellant to a fair trial. In my view this question can only be answered in the

10 See para 26; see S v N supra.
11 In S v Mali 2017 (2) SACR 378 (ECG) at para16, Malusi J described the phrase ‘admonish’ as
meaning ‘to reprimand firmly, urgently urge or warn’ a witness.
12 Ibid, at para 13; see also S v Sangweni 2019 (1) SACR 672 (KZP) at para 9; S v QN 2012 (1)
SACR 380 (KZP).
negative . Given the many shortfalls in the state’s case which I deal with below,
admitting the unsworn testimony of the complainant who was not properly
admonished, would be prejudicial to the appellant and render the trial unfai r. Under
these circumstances I find that the testimony of the complainant lacked th e status
and character of evidence and was therefore inadmissible.

[34] Having come to the above conclusion , it follows that the only evidence that
remains is t he first report evidence of P[...] (complainant’s paternal grandmother ) and
the medical evidence of Mr Mtini. The question to be answered therefore , is whether
this evidence can be said to be sufficient to sustain a conviction in the absence of
the complainant’s testimony . Whether it can be said that notwithstanding the
absen ce of the complainant’s evidence, the state proved the guilt of the appellant
beyond reasonable doubt.

[35] In my view, even if the complainant’s testimony was not excluded , to find that
the state proved its case beyond reasonable doubt would be a far cr y on the facts of
this matter.

[36] In the first instance, the first report was not at all consistent with the evidence
of the complainant. None of the two incidences that the complainant testified about
unfolded in the manner in which the report was given. According to P[...] the
complainant told her that she was grabbed from behind whilst getting ready for
school, thrown to the floor and r aped. This is totally inconsistent with the testimony of
the comp lainant . On her version, both instances occurred when she was called to
the bedroom where she was raped by the appellant, the only difference being that on
the second occasion there was anal penetration. Given these vast disparities, the
most likelihood is that the report P[...] testified about pertained to a totally unrelated
inciden t.

[37] One must also be alive to the fact that the report was made only after the
intervention of a pastor who could not be called to testify as he ha d demised. These
factors cumulatively raise the question of whether it can be said that the first report
evidence comp lies wi th the requirements of section 58 of the C riminal law (Sexual
Offences and Related Matters) Amendment Act .13

[38] The situation gets further compounded when one considers the evidence of
Mr Mtini, the forensic nurse who examined the complainant. According to him the
history given by P[...] was that the complainant was raped on 26 April 2020 . In his
findings after examining the complainant, he concluded that the gynaecological
injuries he obser ved were consistent with sexual assault which occurred plus/minus
five days ago (in line with the history given).

[39] With this evidence, one must also not lose sight of the fact that the offences
for which the appellant was charged were committed between 2016 and 2019.14
Whilst the medical evidence confirmed that the complainant was sexually a ssaulted
on more than one oc casion (in that the hymen was completely eroded) , the only
period that this evidence was specific about was April 2020, a period during which
the appellant was not staying with the complainant according to the common cause
evidence.15

[40] Another disturbing feature in this matter is that it became clear during the
proceedings that somebody else (other than the appellant) who is known had
sexually assaulted the complainant. In her earlier testimony the complainant
mentioned a certain uncle Jimmy who had raped her. She was however carefully
directed by the state to focus her evidence on the appellant before court. When Mr
Nyoka attempted to cross examine her on previous sexual encounters he was
stopped by the court after an objection was raised by the state. In uphol ding the
objection , the regional magistrate relied on section 227 (2) of the CPA.

[41] The regional magistrate clearly misdirected herself in this regard, as the said
evidence was first introduced by the state , and therefore fell under the exc eptions
provided for in the subsection.16 Furthermore, when the state was examining Mr
Mtini in chief , it was also mentioned that the complainant was allegedly raped by

13 Act 32 of 2007.
14 According to both the J15 and the testimony of the complaina nt.
15 It is common cause that she was staying with Patricia in Perseverance during this period.
16 Section 227 (2) (b).
another man just before she was seen by Mr Mtini , although such evidence was not
before court.17 This seems to fall in line with the history given to Mr Mtini that the
complainant was raped by a known male who was a family friend on 26 April 2020.18
Why this evidence was not presented to court remains a mystery . More so given that
P[...] made no mention in her testimony that the complainant was or had told her that
she was raped whilst she was staying with her. Equally strange is the fact that P[...]
failed to mention to Mr Mtini that the complainant had told her that she had been
raped before the 26 April 2020 (by the appellant).

[42] I also find it to be an uncanny coincidence that the first name of the pastor
who conducted counselling with the complainant (leading up to the first report being
made to P[...]) was Jimmy ,19 when the complainant’s evidence which was
consciously not pursued by the state , was that she was also raped by ‘uncle Jimmy’.

[43] The appellant denied raping the complainant, contending that the complainant
was induced by her grandmother P[...] to point him out as the perpetrator. The fact
that P[...] failed to mention in her evidence that the complainant was raped by a
known male who was a family friend whilst she was staying with her , abetted by the
state, whether conscio usly or unwittingly in keeping such evidence from the court ,
leaves one with the ineluctable inference that someone was being protected by her
(P[...]). That in my view, renders the version of the appellant (that P[...] may have
influenced/induced the complainant to point him out as the perpetrator) , reasonably
possibly true.

[44] The complainant (assuming for a moment that her evidence was admissible),
was both a single witness and a child when she testified in court. It does no t appear
prima facie the record that any of the cautionary rules were applied by the court in
assessing her evidence. It is well established in our law that the evidence of a child
must be treated with cau tion.


17 Record p68, line 7 – 9.
18 Record p67, line s 3 – 6.
19 Record p52, line 12.
[45] As demonstrated above, the complainant’ s evidence stood alone without any
corroboration in this matter. Absent such corroboration, courts generally look for
some feature in the evidence which gives the implication by a single child witness
enough of a hallmark of trustworthiness to reduce substantially the risk of a wrong
reliance upon her evidence .20 No such feature exist ed in the present matter.

[46] Over three decades ago t he Appellate Divi sion in Woji v Santam Insurance
Co Ltd21 cautioned courts on the danger s of believing a child where evidence stands
alone without any corroboration . It also set out relevant factors to be considered by a
court in determining whether the evidence of a child witness is trustworthy.22 This
division, in S v Dyira23 also remarked on the pitfalls of accepting the evidence of a
child witness , because of potential unreliability or untrustworthiness, as a result of
lack of judgment, immaturity, inexperience, imaginativeness, susceptibility to
influence and suggestion, inter al ia. It does not appear on the record that the
regional magistrate was alive to any of these considerations when she was
assessing the complainant’s evidence.

[47] Given the number of shortfalls in the state’s case as highlighted above, in
particular ; the first report which is inconsistent with the complainant’s evidence (over
and above it being delayed and solicited under unclear circumstances shrouded in a
cloud of suspicion ), the omitted evidence of rape by another person known and
friend s to the complainant’s paternal grandmother (P[...]), and the absen ce of any
medical evidence ( or any evidence at all) to corroborate the complainant’s evidence
of being raped by the appellant , I cannot find that the evidence of the complainant
was reliable and trustworthy.


20 S v Artman 1968 (3) SA 339 (A) at 340H .
21 1981 (1) SA 1020 (A) at p1027 .
22 ‘Trustworthiness of a child depends on factors such as the child’s power of observation, his power
of recollection, and his power of narration on the specific matter to be testified. His capa city of
observation will depend on whether he appears intelligent enough to observe. Whether he had the
capacity of recollection will depend again on whether he has sufficient years of discretion to
remember what occurs whist the capacity of narration and communication raises the question
whether the child has the capacity to understand the questions put, and to frame and express
intelligent answers. ’
23 2010 (1) SACR 78 (ECG) ; see also S v Viveiros [2000] 2 All SA 86 (SCA) para 2.
[48] Whilst it is clear from the medical evidence that the complainant was sexually
assaulted on more than one occasion, the state however, failed to prove beyond
reasonabl e doubt that the appellant was the person who raped her. In my view,
nothing turns on the fact that the appellant had initially denied that the complainant
stayed with them (him and R[...] ) at Kleinskool , an aspect which he later conceded . It
is a trite principle of our law that an accused person bears no onus to prove his
innocence in court . On the totality of the evidence presented, I cannot find that the
state did establish the guilt of the appellant beyond reasonable doubt.

[49] The result therefore is that the conviction of the appellant and the subsequent
sentence by the regional magistrate cannot be sustained . The appe al therefore must
succeed.

Orde r

[50] In the result , the following order is made :

(a) The appeal is upheld .
(b) The conviction and sentence are set aside.
(c) The appellant must be released from custody with immediate effect .


________________________________
V P NONCEMBU
JUDGE OF THE HIGH COURT

I agree .

________________________________
N MOLONY
ACTING JUDGE OF THE HIGH COURT


Counsel for the Appellants : G Joubert
Instructed by : Legal Aid South Africa
69 H igh Street
MAKHANDA

Counsel for the Respondent : M M van Rooyen
Instructed by : Director of Publi c Prosecutions
MAKHANDA

DATE OF HEARING : 28 May 2025
DATE OF JUDGMENT : 29 May 2025