IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Case No.: CA&R236/2024
In the matter between:
MXOLISI GLADMAN HINA Appellant
and
THE STATE Respondent
JUDGMENT
Cengani -Mbakaza AJ
Introduction
[1] This is an appeal against both conviction and the sentence of life
imprisonment imposed by the Regional Magistrate sitting in Gqeberha (the trial
court). The appellant was charged with rape allegedly committed on or about 03
September 2017 and at or n ear Missionvale, Gqeberha. The allegations are that the
appellant inserted his penis into the complainant’s vagina without her consent. In the
trial court, the appellant pleaded not guilty and in accordance with the provisions of s
115 of the Criminal Proc edure Act 51 of 1977 (the CPA), the appellant reserved the
basis of his defence. Pursuant to s 309 (2) of the CPA, he duly noted his appeal,
however exercised his automatic right of appeal in terms of s 309 (1) of the CPA.
The facts
[2] The complainant testified that during the afternoon on the day in question, she
was busy with her normal chores at home when her friend, Ms N, asked if they could
go to the appellant’s place. Although Ms N was not acquainted with the appellant,
only knowing him by sight, she acceded to the request. Upon arrival at the
appellant’s place, they consumed beer with the appellant. Suddenly, Ms N left the
house and she was left with the appellant inside the room.
[3] When the complainant attempted to leave the room, the appell ant pulled her
by her hair and threw her onto the bed. He started to assault her with fists on her
face. As she struggled to fight back, the appellant bit her finger. Exhausted from the
struggle, the complainant ultimately succumbed to the pressure and all owed the
appellant to proceed as he wished. The appellant pulled off her pants and raped her.
An effects of a combination of the consumption of beer and the struggle with the
appellant caused her to fall asleep on his bed.
[4] After some time, she woke u p and realised that she was naked. Instead of
releasing her, as the complainant begged him to do so, the appellant raped her for
the second time and passed out thereafter. When she heard the appellant snoring,
the complainant fled the scene. She ran to Ms M, another friend, to report the matter.
She explained to Ms M why she was in that state. She was half naked, trembling due
to fear and nervousness and her finger was bleeding from the biting. Ms M gave her
a skirt to wear.
[5] The other terrifying exper ience for the complainant, so she testified, was
having to go to her boyfriend and explain what had happened. Ms M assisted in
narrating the events to her boyfriend. The complainant’s boyfriend gathered
community members. They all proceeded to the appellan t’s home, where they found
him sleeping. The complainant’s boyfriend stabbed the appellant who then fled the
scene. With police assistance, the complainant was taken to the Thuthuzela Care
Centre, a facility that handles cases such as the present. She was subsequently
transferred to Dora Nginza hospital for examination.
[6] Ms M testified that she saw the complainant on the day of the incident. Her
evidence corroborates the complainant’s evidence regarding the state in which the
complainant was upon arriv al at her place. They subsequently reported the matter to
the complainant’s boyfriend and the community. Ms M confirmed that the
complainant reported to her that she was raped by the appellant.
[7] The state’s final witness, Ms N, testified about visiti ng the appellant’s
residence with the complainant. She explained that when she stepped out of the
house, leaving the appellant and the complainant, she intended to relieve herself
although she did not inform the complainant of this. She also testified that she was
among the people who saw the complainant later that evening, reporting the incident
and displaying an injury on her finger. The next day she left the area and went to
Jansenville.
[8] The medical report which was handed in by agreement as part o f the state’s
evidence, confirmed that the complainant sustained a cut on her index finger and
experienced neck stiffness. Dr Mtini, who compiled the report, concluded that these
injuries were consistent with a physical assault. In his report, the Dr Mtini opined that
sexual assault could not be excluded. As part of its case, the state also presented
photographs depicting the appellant’s home where the incident took place. The
photographs also depicted the complainant’s clothing on the appellant’s bed, name ly
a tight and her pants.
[9] In his defence, the appellant testified that she was not at his house and that
he did not assault or bite the complainant’s finger. In essence, he disputed the
version of events about which the complainant and Ms N testified .
Appeal against conviction.
[10] The appellant relies on two grounds of appeal in his notice of appeal, namely:
‘1. The trial court erred in finding that the state had proven its case beyond
reasonable doubt, particularly given the complainant’s status as a single
witness.
2. The trial court erred in rejecting the appellant’s version declaring it as a
false fabrication.’
[11] In their heads of argument, the parties agree that the state proved that the
complainant was raped and that the issue is whethe r the appellant was the
perpetrator of the rape. It is a well -established principle that the state must prove the
guilt of an accused person beyond reasonable doubt . The accused may only be
acquitted if his version is reasonably possibly true. In this ins tance, it is necessary to
examine whether the trial court properly evaluated the cautionary rules relevant to
single -witness evidence , as well as the heightened caution required when
identification is in issue.
[12] The principles which should guide an appellate court in an appeal purely upon
facts were set out by Schreiner JA in Rex v Dhlumayo and Another as follows:
‘Ordinarily the appellant in a criminal appeal has to satisfy the appellate court
that the verd ict was wrong, at least to the extent that the trial court should
have had a reasonable doubt as to his guilt. Where there has been no
misdirection on fact by the trial Judge, the presumption is that his conclusion
is correct; the appellate court will only reverse it where it is convinced that it is
wrong.’
[13] Most importantly, “the trial Judge has advantages - which the appellate court
cannot have - in seeing and hearing the witnesses and in being steeped in the
atmosphere of the trial. Not only has he had the opportunity of observing their
demeanour, but also their appearance and whole personality. This should never be
overlooked. Consequently, the appellate court is very reluctant to upset the findings
of the trial Judge.”
[14] To reach a finding tha t the case was proved beyond reasonable doubt, the
trial court evaluated the evidence in its totality including the appellant’s bare denial.
The appellant resided in the same area and was known to the complainant and Ms N.
The complainant and Ms N visited the appellant during the day. The appellant
confirmed that he also had seen the complainant in the area before. The
complainant’s evidence was strengthened by consistencies in her account, including
her immediate reporting of the incident and the identit y of the perpetrator.
Furthermore, she promptly pointed out the appellant’s house after the incident. The
presence of her underwear on the appellant’s bed after the ordeal corroborated her
testimony regarding the perpetrator’s identity.
[15] Upon examina tion, the complainant’s version was consistent with the proven
facts. These factors collectively enhance the reliability of the complainant’s
identification of the perpetrator. Therefore, the trial court correctly evaluated the
evidence and determined the identity of the appellant as the perpetrator. In the light
of all the evidence, the appellant’s evidence cannot be reasonably possibly true
while at the same time the evidence of the state is “completely acceptable and
unshaken.” In the result, the appeal against conviction cannot stand.
Appeal against sentence.
[16] The prescribed sentence for rape, when committed on more than one
occasion, is life imprisonment. Deviation from this sentence is only permissible if
substantial and compelling circumstance s exist. As established in Malgas , “a court
exercising appellate jurisdiction cannot in the absence of material misdirection by the
trial court, approach the question of sentence as it were the trial court and then
substitute the sentence arrived at by it simply because it prefers it. To do so would
be to usurp the sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates its exercise of discretion, an appellate court is of course
entitled to consider the question of sentence afresh…”
[17] In the matter under consideration, the appeal against sentence is premised on
the ground that the trial court should have found the existence of substantial and
compelling circumstances, and the sentence imposed is shockingly inap propriate.
[18] The principles applicable in determining a fair, balanced and appropriate
sentence have long been settled. The Constitution guarantees an individual’s
freedom from all forms of violence from any source . This was a brutal and cruel
incident, resulting in physical injuries to the complainant. The appellant’s conduct
was relentless, with the complainant resisting until she was exhausted and unable to
defend herself any further. The repetition of the rape on the same day including his
previo us conviction of rape, for which he was serving a 7 -year prison sentence at the
time of trial, strongly suggests a lack of prospects for rehabilitation.
[19] In applying the Zinn principles, the trial court thoroughly evaluated all the
relevant facts, i ncluding the appellant’s personal circumstances as presented by his
legal representative and reflected in the pre -sentence report. Those personal
circumstances, such as they are, recede into the background regard being had to the
fact that the appellant mu st undergo a long term of imprisonment. Consequently, the
trial court did not err in finding that substantial and compelling circumstances were
absent and the sentence imposed does not induce a sense of shock.
[20] In the circumstances, the appeal against conviction and sentence must fail.
Order
[21] The appellant’s appeal against conviction and sentence is dismissed.
____________________
N CENGANI -MBAKAZA
JUDGE OF THE HIGH COURT (ACTING)
Bloem J
I agree.
____________
G H BLOEM
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Appellants : Adv: D Geldenhuys
GRAHAMSTOWN JUSTICE CENTRE
69 Hugh Street
MAKHANDA
Counsel for the Respondent : Adv: H Obermeyer
DIRECTOR OF PUBLIC PROSECUTIONS
Date heard : 16 April 2025
Date delivered : 08 July 2025