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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION , CAPE TOWN)
CASE NO: A 173/2024
In the matter between:
D[...] H[...] Appellant
v
THE STATE Respondent
Coram: Dolamo J et Nziweni J
Matter heard on Friday 06 June 2025
Judgment delivered electronically on Wednes day 2 5 June 2025
JUDGMENT
______________________________________________________________________
DOLAMO et NZIWENI JJ
INTRODUCTION
[1] The appellant seeks to appeal against both the conviction and sentence handed
down by the Regional Court Magistrate in Oudtshoorn, on 28 February 2022. The
appellant was convicted on one count of a contravention of section 3, read with certain
sections of t he Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 (rape) and one count of common assault. Since the Regional magistrate found
that the complainant was raped more than once, the offence of rape fell within the
purview of section 51(1) read with Part 1 of Schedule 2 of the Criminal Law Amendment
Act 105 of 1997. The Regional Magistrate took both counts together for sentence
purposes and imposed a sentence of 20 years imprisonment. The appellant was
granted leave to appeal on petit ion on both conviction and sentence.
[2] The State alleged that the rape offence was committed on or about December
2020 till January 2021. In respect of the assault charge the state alleges that it was
committed on 02 February 2021. It is common cause t hat the appellant and the
complainant were previously involved in an intimate relationship from 27 July until
November 2019, when their relationship ended. They have a three -year-old child
together. It is also common cause that on 19 December 2020, there w as an act of
sexual penetration between the appellant and the complainant.
[3] Appellant’s Counsel sets out in her heads of argument that the trial court erred in
finding the appellant to have raped the complainant more than twice. This, according to
Coun sel, was a duplication of charges. However, in oral submissions Counsel expressly
abandoned the argument that the trial court erred in finding the appellant to have raped
the complainant more than once. This concession was correctly made as the argument
was entirely meritless.
[4] The a ppellant raises several issues on appeal. The appellant’s version is a denial
that he raped the complainant and asserts that he had consensual sexual intercourse
with her. He also argues that there was insufficient evidence to sustain his convictions
for the two offences he was charged with.
[5] During the trial the complainant, her mother, brother, sister and a social auxiliary
worker testified. Amongst others, the complainant testified that after they had terminated
their relationship, they had contact again in December 2020 as the appellant wanted to
see his child. She allowed him to have contact with his child. It was also her testimony
that she has always been afraid of the appellant and the appellant knew this.
[6] The complainant testified that o n 19 December 2020, the date on which the
appellant admitted to having had consensual sexual intercourse with her that the
appellant had put his penis and ejaculated in her mouth. She did not want nor did she
consent to have s ex with him at that time and she told the appellant that she did not
want to have intercourse with him. The complainant further stated that , as the appellant
was armed with a knife, she did not fight him as she thought that that w ould be the
safest thing to do , in order to avoid being harmed. She also did not summon any help
nor tell anyone immediately as she feared for her life.
[7] The second incident happened on 14 January 2021, at her mother’s place, where
the appellant again had oral sex with her. After the appellant had left, she phoned
Ricardo Swarts, a social worker and informed him about what had just happened. She
testified that the appellant came to her mother’s place again on 02 February 2021. Inter
alia, she testified that th e appellant placed a knife on the bed where she sleeps. When
she refused to give the appellant the Pin to her phone the appellant took the knife and
pricked her on her thigh , to scare or threaten her.
[8] The complainant’s testimony was detailed , consiste nt throughout , candid,
forthright , and honest. She did not embellish her evidence. For instance, she testified
that from December 2020, to February, the appellant never ‘hurt’ her. This is born by the
fact that she testified that the appellant was disturbed in his quest for oral sex when her
brother enter ed the room. Surely, if she was b ent on casting the appellant in a bad light,
she could have easily embellished her evidence and stated that also on 02 February
2020, the appellant had placed his penis in her mouth. She also withstood searching
cross examinations.
[9] The evidence in th is matter further shows that the State witnesses did not
collude. For instance, the complainant’s brother did not shy away from testifying that
when he entered the room where the appellant and the complainant were, it did not look
as if the appellant was causing any trouble nor did he see any weapons. His evidence
was that he saw the brassiere that the complaint told him the appellant had cut with a
knife .
[10] We start the analysis of the appellant’s version with his plea explanation. In his
plea explanation, the appellant stated the following:
“... Beskuldigde erken slegs dat hy op 19 Desember 2020 met die klaagster se
toesteming haar vaginaal gepenetreer het, Beskuldgde onteken egter dat hy op
enige ander stadium gemeenskap met haar geh ad het sonder haar
toestemeng ...”1
[11] In his evidence in chief, the appellant testified that the consensual intercourse
between him and the complainant took place under a peperboom . Later he contradicted
himself . In cross examination of the appellant, the following took place:
“Q: Baie keer was u en die klaagster seker alleen gewees daar by die pa se
ghetto, is dit reg so?
A. Ons was altyd alleen ...
Q. Altyd alleen?
A. Ja ...
Q. Nou het hulle (sic) weer seks gehad daarso by die ghetto?
A. Ja, ek het een aand geslaap ook daar. Soos ek se.
1 Loosely translated into English he said: “The accused admitted that on 19 December 2020 he had
penetrated her vagina with her consent: Accused deny that he had at any other stage had sexual
intercourse with her without her consent ”.
Q. Want die ding is. So. Elke keer as julle mekaar daar ontmoet het julle
gevry en geseks?
A. Yes
Q. Is dit reg?
A. Yes... ”2
[12] It is clear that there is a major difference between the appellant’s plea
explanation and his evidence under cross examination. Counsel’s for the appellant,
however, persisted with the argument that there was no contradiction or inconsistency
within the appellant’s testimony.
[13] The appellant attacked the Magistrate’s overall finding s in the assessment of
credibility. Counsel for the appellant attempted to persuade this Court and remained
adamant that there was no contradiction in the appellant’s version without specifying
which aspects of his evidence was not contradictory . This argument flies in the face of
common sense and the evidence on record, which clearly shows that the appellant
without any reason was adjusting and embellishing his testimony.
[14] The Magistrate also noted contradictions, and incongruities in the appellant’s
testimony as regards, not only the number of times he had had consensual intercourse
with the complainant, but also the places where the intercourse took place. The
appellant did not only contradi ct himself in relation to just one such occasion , but on two
separate occasions. He did not explain these contradictions . It is clear that the appellant
was adjusting his testimony as the trial continued.
2 “Translation .:
Q: On may occasions you and the complainant were alone there at the father’s g hetto, is that
correct?
A. We were always alone.
Q. Always alone?
A. Yes
Q. Now they ( sic) again had sex there at the ghetto?
A. Yes, I also slept one night there, as I say.
Q. Because the thing is, each time you met each other there you kissed and had sex?
A. Yes
Q. Is that correct?
A. Yes... ”
[15] The contradictions in appellant’s evidence is on material and central aspects
relating to the charges he was facing. Given the importance of these aspects in his
account and regarding the alleged consensual nature of the encounters with the
complainant, it is plain that the y undermined the appellant’s overall credibility.
[16] The complainant was a single witness i t is well established that an accused
person may be convicted on the evide nce of a single witness . Such evidence, however,
must be approached with caution. In Rugnanan3 the Supreme Court of Appeal held that
‘[t]he cautionary rule does not require that the evidence of a single witness m ust be free
of all conceivable criticism’: the ‘requirement is merely that it should be substantially
satisfactory in relation to material aspects or be corroborated’ . For that matter, it is not
tenable that an accused person can only be convicted based on ly on evidence that is
corroborated. For instance, crimes involving rape and other sexual offences always
happen in secret. In most instances only the complainant is available to give evidence
regarding the commission of the offence.
[17] Moreover, during the hearing Counsel for the appellant was required to direct us
to those aspects of the complainant’s evidence that were not clear and substantially
satisfactory, but was unable to do so. The record does not bear any significant indicia of
the complainant ’s unreliability. The trial court thoroughly and adequately dealt with the
evidence presented before it. The Court also considered and applied relevant law to the
evidence. The trial court gave reasons why it accepted the testimony of the
complainant. Furt hermore, the Magistrate meticulously articulate the facts that led to the
finding of guilt.
[18] The Magistrate rejected, correctly so, the appellant’s version of events. The
Magistrate also made correct credibility findings. As such, he gave full and adequate
reasons as to why he accepted the evidence of the State and rejected that of the
appellant. In the circumstances of the case, the court a quo cannot be faulted for
3 Per Dlodlo JA in S v Rugnanan [2020] ZASCA 166 at par [23].
accepting the version of the of the State and rejecting that of the appellant. It is obvious
that the appellant lied during the trial on the other hand . The State evidence of a single
reliable witness who was beyond reproach and met the required standard necessary to
overcome the hurdle of the cautionary rule.
[19] Turning now to sentence. The facts of this matter reveal that life imprisonment
was applicable to count 1. Count 1 is also read with the provisions of section 94 of the
Criminal Procedure Act, Act 51 o f 1977. Section 94 speaks of commission of offence on
diverse occasions. The court a quo found that the accused raped the complaint on
different occasions. This then squarely places count one within the purview of section
51 (1) of the CLAA. Despite life b eing applicable the court a quo deviated from imposing
life. There is no basis for this Court to interfere. It follows that the appeal against
sentence must also fail.
[20] There is one last aspect which requires attention. This is the issue of the record
of the proceedings in the court a quo being in the Afrikaans language, which Counsel
for the appellant raised as a point in limine . All the participants in the trial in the lower
court were Afrikaans speaking and the proceedings were conducted in the Afrikaans
language . No provision was made to translate them into the English language. Counsel
submitted that the question is, despite the language policy dictating that all cour t
records shall be in English, whether this court will be able to consider the merits of the
appeal.
[21] Counsel for the appellant submitted that in terms of section 35(3)(k) every
accused person has the right to a fair trial, which includes the right t o be tried in a
language that the accused person understands or, if that is not practicable, to have the
proceedings interpreted in that language. Counsel referred to several decided cases as
authority for the proposition that an accused person must be tri ed in a language he
understands. Notable in these authorities is that these were matters in which
proceedings in the lower courts were either conducted in languages other than the one
understood by one of the parties, in particular the accused criminal pro ceeding, or were
held in indigenous languages. However, it is clear from all these authorities that the
court is at liberty to use any of the official languages provided it is a n official language
understood by the parties.
[22] The issue is different in this matter. This is an appeal and not a trial. In this
respect it is to be noted that on 29 September 2017 the then Chief Justice of the
Republic of South Africa , Mogoeng Mogoeng CJ issued the directive that English will be
the only language of record in South African courts. Th e rationale behind the directive
was to facilitate efficiency and the smooth running of the court system as English is a
language understood by all Judges. The then Chief Justice went further and stated that
many people have limited resources and that they would not be able to expand them on
translating records from the language in which they were kept in the court a quo to
English, when a matter is taken on appeal.
[23] This directive was followed by one in this division in 2021 w hich provides as
follows:
“The transcription of court proceedings and reconstruction of court records for
matters on appeal or review is an unnecessary and wasteful expense to the
Office of the Chief Justice and Department of Justice & Constitutional
Development.
In order to limit these costs and undue delays in finalising these matters, Judicial
Officers and Legal Practitioners are therefore required to take comprehensive
notes, in English, during court proceedings and make such notes a vailable as
part of the court record.”
[24] The above directives have not been repealed, substituted, or superseded by any
subsequent development. They are therefore still of force and effect. The trial court in
this matter was obliged to have the proceed ings translated into the English language,
alternatively, to keep meticulous record in the English language which will accompany
the transcript of the record when it is sent on appeal. This was not complied with. The
consequence is that the appeal court wa s at a disadvantage in dealing with the record.
That this was a disadvantage is underscored by Counsel who appeared for the
respondent stating that, although she is Afrikaans speaking, she has become
accustomed to reading records which are in the English l anguage. According to her, this
record took longer to read than it normally would have been the case, if it was in the
English language. It would have been worse if Counsel was not Afrikaans speaking.
This surely impact negatively on the administration of justice. It has nothing to do with
the language of choice of the accused or the language preferences of the presiding
officer.
[25] We were able to deal with the appeal on its merits because both of us are
reasonably proficient in the Afrikaans language. It would have been different had one of
us, or both, been unable to deal with the matter on the merits because of the language
barrier. Presiding officers in the lower court are reminded to comply with court directives
which are aimed at facilitating the s mooth running of the administration of justice .
[26] Paragraphs [20] – [25] of t his judgment , must be brought to the attention of the
Regional Court President , Chief Magistrate: Cape Town, Chief Magistrate: Wynberg,
and the Director -General of the Departm ent of Justice and Constitutional Development .
[27] In the circumstances , the appeal against both conviction and sentence is
dismissed.
_________________________
M J DOLAMO
JUDGE OF THE HIGH COURT
I agree .
_________________________
N NZIWENI
JUDGE OF THE HIGH COURT
Appearances:
Counsel for Appellant: Adv. S Kuun
Legal -Aid South Africa – Cape Town
Counsel for Respondent: Adv. E Cecil
The Director of Public Prosecutions – Cape Town