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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: AR319/24
In the matter between:
N[...] S[...] Appellant
and
THE STATE Respondent
ORDER
On appeal from : The Regional Court of KwaZulu Natal, sitting at Ulundi (sitting as
court a quo):
1. The appeal against conviction on Count 1 (Contravening section 3,
read with sections 1, 56(1), 57, 58, 59, 60 and 61 of Act 32 of 2007 and Part I
of Schedule 2 (Rape on multiple occasions), is upheld;
2. The order of the court a quo is set aside and replaced with the
following: "Counts 1: Acquitted".
3. The appeal against sentence on count 1 is upheld;
4. The sentence of the court a quo on count 1 is set aside.
5. The Orders made in terms of Section 103(3) and 103(4) of the
Firearms Control Act, Act 60 of 2000, are set aside;
6. The Order made in terms of Section 50 of the Criminal Law
Amendment Act, Act 32 of 2007, handed down on 13 June 2024 is set aside;
JUDGMENT
NORTJE, AJ (with TUCKER, AJ concurring)
[1] This is an appeal against conviction and sentence on Count 1, (Rape on more
than one occasion) handed down by the Ulundi Regional Court on 13 June 2024.
The court a quo found that the rape was performed multiple times, thereby triggering
the
minimum sentence provisions. The Appellant was acquitted of Count 2 (Attempted
Murder).
[2] Before I deal with the substance of the matter, I find it necessary to express
the court's ire at the conduct of counsel for the appellant, Adv Sibiya. The appeal
itself r eached us in the form of 904 typed pages of transcripts, which covered the
entire trial from start to finish. Adv Sibiya deemed it proper to submit 181 pages of
head of argument (about 20% the volume of the entire transcript).
[3] Heads of argument serve s an integral role in the hearing of any opposed
matter, and the courts rely greatly on counsel to provide their heads not only
timeously, but also concisely, so as to assist the court in deciding the matter.
[4] The importance and function of heads of a rgument has been expressed many
times by having regard to the comments of Marcus AJ in S v Ntuli:1
"Heads of argument serve a critical purpose. They ought to articulate the best
argument available to the appellant. They ought to engage fairly with the
evidence and to advance submissions in relation thereto. They ought to deal
with the case law. Where this is not done and the work is lef t to the Judges,
justice cannot be seen to be done. Accordingly, it is essential that those who
have the privilege of app earing in the Superior Courts do their duty
scrupulously in this regard."
[5] Adv Sibiya's heads were grossly voluminous and offered no assistance to the
court. Instead, the heads of argument attempted to often restate the evidence lead
but with addition al spin or inflection not part of the transcript, while simultaneously
offering no legal argument or case law of assistance. The heads of argument were
misleading and improper, and not in accordance with the duty imposed on legal
representatives to first assist the court and thereafter to advance their client's case.
[6] Whether it was by design, or by fortune, he escaped the anger of the bench
when Adv Xulu appeared in his place to argue the appeal.
[7] It must also be mentioned, on the other side of t he coin, counsel for the
Respondent, Mr Shah, submitted very helpful heads, which assisted the court greatly,
even though they seemed counterproductive to the State's case. We were reminded
that a prosecutor's primary function is to assist the court in arr iving at a just verdict,
and not to seek a conviction at any cost.
The substance of the appeal
[8] As a brief factual background to the appeal, the Complainant's evidence was
that even though she was in a permanent relationship with the Appellant, and they
have one child together, that relationship had now ended.
1 S v Ntuli 2003 (4) SA 258 (W)
[9] In evidence the Complainant sta ted that the Appellant did not accept that the
relationship had ended, and persisted in contacting her, despite the fact that she
obtained a domestic violence order against him.
[10] On the day in question, he came to her homestead and persuaded her to go
back to his homestead. She did so without much protestation, because she did not
want him to make a scene at her homestead, something he has done before.
[11] Whilst walking to his homestead, the Accused beat her with a stick, and
scolded her about se eing other men. After arriving at his house, she spent some
time alone with his brother. She was also aware that other family members were
present.
[12] That night they slept in the same bed, and during the night he raped her
repeatedly, against her will , using a knife to threaten her, and overpowering her by
holding her down. She described how he suffocated her, and how she lost
consciousness several times during the night.
[13] She awoke the following morning, wrapped in three blankets, and alone in t he
house. She managed to free herself from the blankets and decided to walk home.
Along the way she came across the Appellant, and the walked together for a while.
[14] He seemed surprised to see her and even said "I thought you were dead". He
stopped a taxi to arrange a ride for her, but she did not accept, choosing to walk
instead because she felt that she was too dirty on her person.
[15] They parted ways, and she decided to go home first to take a bath and get
clean clothes. She then set off to the police station where she met some resistance
against being served by a police member. It was only after she started crying out
loudly that the police assisted her.
[16] She was taken to the clinic where an examination was conducted, and she
gave the doctor her history of events. The doctor noticed some brown discharge and
concluded that she was raped.
[17] The Appellant's version is t hat the two of them are still very much a couple,
but the uncle of the Complainant is trying to lodge a wedge between them, as he
wants the Complainant for himself.
[18] His evidence was that the Complainant met him outside her homestead, as he
was not supposed to go to close due to the protection order. They walked to his
homestead, with her singing happily along the way. Arriving at his place, she still
joked with his younger brother, and he left her to go get some food.
[19] During the night they s lept together and engaged in consensual intimate
sexual conduct. The following morning, they walked past a shopkeeper who noticed
how happy they looked together, and they were observed by a taxi driver who was
stopped to give her a lift which she declined. They then parted ways.
[20] In his defence, much was made of the Complainant's uncle, one Mr Zwane,
and how he was behind this whole complaint. Several witnesses were called to
substantiate this version, without much credibility being established to do so. It
prompted the magistrate to call two witnesses in terms of section 186 of the Criminal
Procedure Act, whilst the Defence's case was still underway.
[21] It is apparent that the two witnesses called by the court were State witnesses
who the S tate elected not to call. The State had the benefit of consulting with these
witnesses prior to the Court deciding to call them, and even stated that she
(prosecutor) would call one Zakhele during her cross examination of the Appellant.
[22] The Court did not advise the Appellant that he could lead further evidence,
either in rebuttal, or further witnesses. The Appellant closed his case without calling
the last witnesses which he told the court he still wanted to call just prior to the co urt
invoking section 186.
[23] The Appellant tried to cross examine the Complainant on a prior statement
that she made to the police, which seemingly contained quite a few discrepancies to
her later statement, however the court found that the Complainant could not be
blamed for those discrepancies, but rather the police who took the statement. I find
the court misdirected itself by not allowing the Defence to develop its argument that
the Complainant's versions contradict themselves, and the restriction o f the ability by
the defence to probe the discrepancy rather than have the Complainant answer to
the inaccuracies.
[24] A few further elements of the Complainant's evidence were also cause for
concern. The police officer, Ms Msimang, who was on duty when the Complainant
reported to the police station, testified that she never observed the Complainant go
outside and cry, or that only after that did the police go out to fetch her and gave her
assistance.
[25] It is also of concern to me that the Complainant never mentioned to the police
that a knife was used, with the subsequent result that there was no further
investigation on the existence of the knife. The same goes for the stick that was used
to assault her legs.
[26] The learned magistrate relied on t he Complainant's evidence of having been
threatened with the stick, and found that this aspect proves her unwillingness to go
to the Appellant's homestead. However, there is no corroboration to this apparent
beating, despite the Complainant having sought m edical assistance on the following
day. Throughout the encounter as detailed by the Complainant, the Complainant
would have sustained injuries that would have been picked up in a medical
examination. There was a complete lack of medical evidence of such inj uries,
however, and no regard was paid by the Court a quo to this lack of what would have
been easily available evidence.
[27] There is another point that is of concern, and that is the Complainant's own
[27] There is another point that is of concern, and that is the Complainant's own
version that she was singing quite merrily when she entered the Appellant's
homestead, seemingly to alert other people of her presence. If it was her direct
intention to portray a happy and willing attitude to being there to others, one has to
wonder how this would have influenced the Appellant's perceptio n of the
Complainant's attitude towards being with him.
[28] The impression she wanted to create for other people to see, was
unfortunately the same impression the appellant was observing, and using to gauge
her response to his advancements. The court a q uo accepted the singing by the
complainant, but failed to attach any weight to how this could have affected the
Appellant's analysis of the state of affairs.
[29] The Appellant would have seen the same behaviour, and without the
complainant telling him he r "true" reason for singing, he was left to make of it as he
wished, and the natural conclusion would be that this person seems to be cheerful
about being in my company.
[30] Couple this with the Complainant's own admission that when he came to fetch
her, she did not resist , she just "allowed him to do whatever he wanted." The
magistrate recognises this flaw in the Complainant's evidence, but then goes on to
claim that it must be viewed in the totality of the evidence, and seemingly dismisses
it as it is b ut one blemish against the Complainant. Had the Magistrate considered
this one element in conjunction with all the other slight flaws, he would have found
that there area combined mass of inconsistencies in toto, in the evidence of the
Complainant which cannot be ignored as if it were just one.
[31] The Court a quo paid far too much credence to the evidence of Dr Msomi. His
finding of sexual assault seems to be based on two elements: Firstly, the presence
of a brownish discharge, and, secondly her accoun t of what had happened. He
admits that the brown discharge could be attributed to other causes, such as an
infection, which leads this court to believe that the only ground for his finding that
sexual abuse did take place, is the Complainant's own account of events relayed to
the doctor.
[32] The discharge does not mean that the complainant was assaulted. That is not
[32] The discharge does not mean that the complainant was assaulted. That is not
the only conclusion that one can reach on the observance of discharge. Particularly
so when the Appellant himself admitted that there was sexual intercourse.
[33] The Doctor further confirmed that he did not see any injuries on her legs from
being hit with a stick. This was not taken much further by the prosecutor or the
defence. The court a quo recognised that the Complainant's version descri bed quite
a severe physical assault, with the Appellant climbing on top of her, pressing her
down and strangling her. He forced her thighs open by using his knees, all the while
holding a knife against her neck.
[34] In assessing this evidence the Court a quo clearly misdirected itself when it
chose to rely heavily on the evidence of the doctor in regard to the meaning of a
brownish discharge, but then gives very little credence to the fact that no other injury
in the form of bruising on the thighs or anywhere else on her body was observed.
[35] The court a quo readily accepted the complainant's version that the morning
after, when she had now left the Appellant's house, she sees him following her on
the road, and then chooses to walk with him, rather than try to get rid of his company.
[36] I am hard pressed to believe that a woman would choose to walk onwards
with her rapist, and even rejects the opportunity of a taxi ride to get away from him,
instead choose to walk with him, as if nothing had happened.
[37] She does not turn and run away, and she does not confront him about what
he had just done. Instead, they walked in fairly peaceful circumstances. This is, of
course, not determinative of her veracity. It does add another proverbial straw to the
camel's back.
[38] She explains why she never tried to escape whilst with him, saying that he
would know she went home, and he would find her there. Firstly, she does not give a
reason why she could not have escaped and go to the police station, if not the clinic
or her own house.
[39] This is in stark contrast with her own testimony that the following morning, she
actually made the decision to go to her home, somehow forgetting that this is the
actually made the decision to go to her home, somehow forgetting that this is the
place where she know s he will come find her. The court a qua paid no attention to
this inconsistency, or if it did, attached no significance to it. This again is a
misdirection by the court a quo who later dismissed the Appellant's version as being
"rigged with contradictions and half -truths." The court erred in nitpicking all the
inconsistencies of the Appellant's version, whilst glossing over those of the
Complainant.
[40] She testified that after getting back to her own homestead, she did not wake
up her family members, saying they would be upset. I find that rather strange, and
surprised that the court a qu o accepted this as the truth, with the only corroboration
being the fact that the version is consistent with what she told her witness.
[41] In evaluating the evidence, I am reminded of the case of Matosa and another
v S [1999] JOL 5502 ( O), where it was held that "It is, of course, always permissible
to consider the probabilities of a case when deciding whether an accused's version
may reasonably possibly be true.2
[42] The explanation offered by an accused may be so improbable that it cannot
reasonably be true. However, there is no room for balancing the two versions, ie the
state's case against the accused's case and to act on preponderances. The correct
approach for a court is to apply its mind not only to the merits and demerits of the
state and the defence witnesses but also to the probabilities of the case. This is to
ascertain wheth er the accused's version is so improbable as not to be reasonably
true.
[43] This, however, does not mean a departure from the test as laid down in R v
Difford 1937 AD 370 at 373 , that even if an accused's explanation be improbable,
the court is not entitled to convict unless it is satisfied, not only that the explanation is
improbable, but that beyond any reasonable doubt it is false.
[44] If there is any reasonable possibility of their explanation being true, then they
are entitled to an acquittal.
2 see S v Singh 1975 (1) SA 227 (N); S v Muniai 1986 (4) SA 712 (W) at 716
[45] Whether a court subjectively disbelieves an accused is not the tes t.3 The test
is to be found in the nature of the onus resting on the state, and that is that a court
need not even reject the state's case in order to acquit an accused.
[46] The court is bound to acquit an accused if there exists a reasonable possibility
that an accused's explanation may be true. Even if the state case stood as a
completely acceptable and unshaken structure, the court is bound to investigate the
defence case with a view to discerning whether it is evin cibly false or inherently so
improbable as to reject it as false.4
[47] I am not convinced that the Appellant's version of the state of affairs is correct,
when he paints the picture of the Complainant's uncle as the mastermind behind the
charge against him. He does not have to discharge a burden to prove why the
Complainant has charged him, and therefore I do not have to consider that further.
[48] I am not concerned as much with the why, but rather the what - what
happened between the Complainant and the Appellant that night.
[49] Slomowitz AJ said in regard to an accused's story: "Whether I subjectively
disbelieve him is, however, not the test. I need not even reject the State case in
order to acquit him. I am bound to acquit him if there exists a reasonable possibility
that his evidence may be true. Such is the nature of the onus on the State."5
[50] Referring to this passage van der Spuy AJ said:
"In other words, even if the State case stood as a completely acceptable and
unshaken edifice, a court must investigate the defence case with a view to
discerning whether it is demonstrably false or inherently so improbable as to
be rejected as false."
3 S v Kubeka 1982 (1) SA 534 (W)
4 S v Jaffer [1988] 1 All SA 407 (C)
5 S v Kubeka 1982 (1) SA 534 (W) at 537 O-H
[51] I agree. The test is, and remains, whethe r there is a reasonable possibility
that the Appellant's evidence may be true. In applying that test one must also
remember that the court does not have to believe their story; still less it has to
believe it in all its details. It is sufficient if the cou rt thinks there is a reasonable
possibility that it may be substantially true. 6
[52] In light of the improbabilities in the Complainant's evidence, which I have
highlighted above, measured against the evidence of the appellant, I come to the
conclusion that I have more than the reasonable amount of doubt, and therefore find
that the State did not discharge the burden of proof on the desired level.
Order
[52]
1 The appeal against conviction on Count 1 (Contravening section 3, read
with sections 1, 56(1), 57, 58, 59, 60 and 61 of Act 32 of 2007 and Part I
of Schedule 2 (Rape on multiple occasions), is upheld;
2 The order of the court a quo is set aside and replaced with the following:
"Counts 1: Acquitted".
3. The appeal against sentence on Count 1 is upheld;
4. The sentence of the court a quo on Count 1 is set aside.
5. The Orders made in terms of Secti on 103(3) and 103(4) of the Firearms
Control Act, Act 60 of 2000, are set aside;
6. The Order made in terms of Section 50 of the Criminal Law Amendment
Act, Act 32 of 2007, handed down on 13 June 2024 is set aside;
NORTJE AJ
I agree
6 Rex v M 1946 AD 1073 at 1027
TUCKER AJ
Appearances:
Counsel for the Appellant : Adv Xulu
Instructed by : N.T. Sibiya Attorneys
Section 1(8), Fairbreeze Office Park
Princess Magogo Street
Email: info@ntsibiyaattorneys.co.za
ngemamboni@gmail.com
Ulundi
C/O MHS Attorneys Inc.
Suite 250, Mansion House
12 Joe Slovo Street
Durban
Counsel for the Respondent: Mr. KM Shah
Instructed by : DPP
4th Floor, Southern Life Building
88 Field Street
Durban
Tel: 031 334 5010
Cell: 084 520 0099
Emai: Kshah@npa.gov.za
Ref: 10/2/5/1/3-191/24
Date of Hearing: : 03 July 2025
Date Judgment Delivered: : 5 September 2025