T.Z v S (AR 111/24) [2026] ZAKZPHC 3 (23 January 2026)

70 Reportability
Criminal Law
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Brief Summary

Criminal Law — Sexual Offences — Appeal against conviction — Appellant convicted of contravening s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act — Complainant, a minor, alleging rape — Appellant contending that the complainant recanted her evidence and that the trial court failed to adequately scrutinize the evidence — Court finding that the trial court properly applied the cautionary rule and that the evidence was sufficient to sustain the conviction — Appeal dismissed and conviction confirmed.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was a criminal appeal in the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg, against a conviction for rape. The appellant, T[…] Z[…], had been convicted in the Ladysmith Regional Court of contravening section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, read with section 120 of the Children’s Act 38 of 2005. The respondent was the State.


The procedural history was marked by two connected post-trial steps. After conviction and sentence on 27 July 2020, the appellant applied for leave to appeal, which was granted on 17 November 2023. At the same time, he applied for leave to adduce further evidence in terms of section 316(5)(a) and (b) of the Criminal Procedure Act 51 of 1977, based on a recanting statement by the complainant identifying a different perpetrator. That application was also granted, and further evidence was led before the trial court as contemplated by section 316(5)(c) of the Criminal Procedure Act 51 of 1977. The State led no rebuttal evidence in response to that further evidence.


The dispute in substance concerned whether the conviction could stand in light of the complainant’s later recantation and alleged contradictions in her evidence, particularly where the core contested issue became the identity of the perpetrator, rather than whether a rape had occurred.


2. Material Facts


It was alleged that on or about 14 January 2016, at or near Ekuvukeni in KwaZulu-Natal, the complainant, then nine years old, was sexually penetrated without consent, by insertion of the perpetrator’s penis into her vagina.


In the main trial, the complainant testified that she had gone to a neighbouring homestead (the S[…] homestead) to play football with other children. While returning home, she was allegedly accosted by the appellant, whom she knew well because they played football together. She testified that he pulled her towards a large rock behind her home, placed her on the rock, undressed her, and had sexual intercourse with her without consent, accompanied by threats to kill her if she resisted. She then returned home, and she described bruising to her buttocks caused by being forced onto the rock.


The complainant’s mother testified that when she came home from work, she saw the complainant limping. After repeated enquiries, the mother inspected the complainant and observed wetness described as semen-like on the complainant’s underwear, with redness and wetness to the genital area. At that stage, the complainant reported that the appellant had raped her. The mother also observed bruising on the complainant’s buttocks. The complainant was later taken for medical examination.


The medical evidence came from Dr Ndlela, who examined the complainant at 01h00 on 15 January 2016. Dr Ndlela testified that the child reported being raped vaginally and anally. The doctor observed difficulty in conducting the examination because the complainant resisted due to pain, appeared fearful, avoided eye contact, and walked with her legs wide. The genital findings included inflammation, a tear at the root of the clitoris towards the introitus, swelling of urethral folds, and the presence of fluid resembling semen coming from the vagina. Anal examination findings did not reveal tears consistent with penetration; Dr Ndlela testified that it is common for children of that age to struggle to distinguish vaginal from anal penetration, and that vaginal penetration may affect the perineum. Dr Ndlela did not observe bruising on the buttocks.


The appellant denied raping the complainant and advanced an alibi. He testified that he had been at the S[…] homestead earlier that day, and had been sent to buy snuff at a store across the river. He said he went with others part of the way, then separated at the river, purchased the snuff, returned, and was later confronted with the accusation. He called Mr N[…] as an alibi witness, who broadly supported that the appellant left to go to the store and that the group separated at the river. Under cross-examination and questioning by the trial court, aspects of the alibi evidence were treated as problematic, including the witness’s lack of clarity on the date, and the fact that he did not disclose the alibi at the time of confrontation.


After conviction and sentence, the appellant relied on a recanting statement by the complainant asserting that the person who raped her was K[…] S[…], described as her biological father’s younger brother, and not the appellant.


In the further evidence proceedings, the appellant testified that, while incarcerated, he refused to participate in a victim offender dialogue process because he maintained he had not offended. He said that in January 2022 he met the complainant and family members, and the complainant apologised and stated she had falsely implicated him due to threats from K[…]. The complainant then testified in the further evidence proceedings that K[…] raped her and told her to say it was the appellant, threatening to kill her and her mother if she disclosed his name. She stated she had created the details of the earlier version herself, and that she decided to tell the truth after an interaction with an aunt who repeatedly questioned whether she was sure it was the appellant.


3. Legal Issues


The appeal required determination of two central questions, expressly identified by the appeal court.


The first question was whether, on the evidence as a whole (including the further evidence), the complainant had substituted the appellant for the “actual assailant” (K[…]) such that the State failed to prove identity beyond reasonable doubt. This involved the application of legal standards of proof to factual evaluation, including the assessment of recantation evidence and the appellant’s alibi.


The second question was whether contradictions in the complainant’s evidence rendered it unreliable and thus insufficient to sustain the conviction. This was primarily a question of fact and the evaluation of credibility and reliability, guided by established principles on contradictions and their effect on proof beyond reasonable doubt.


An additional framing consideration was the limited scope of appellate interference with factual findings of a trial court, absent misdirection, which informed how the High Court approached the record and the trial court’s credibility findings.


4. Court’s Reasoning


The court approached the appeal through the accepted principle that appellate interference with a trial court’s factual findings is limited in the absence of misdirection, and that a trial court’s conclusions, including the acceptance of witness evidence, are presumed correct. This framework was applied expressly as the lens through which the issues were assessed.


On the identity issue, the court treated it as common cause that the complainant was sexually violated on 14 January 2016, and identified the true dispute as whether the appellant was the perpetrator. It noted that the trial court had already considered at the main trial stage the possibility of mistaken identity and rejected it, based on the complainant’s familiarity with the appellant, the incident occurring in daylight, and the duration and nature of the interaction described.


The appellate court then examined the recanting statement and the further evidence led in support of it. It observed that the recanting statement was extremely brief and did not provide detail. While acknowledging that the trial court had nonetheless granted leave to adduce further evidence, the appellate court attached weight to the trial court’s recorded observations under section 316(5)(c) about the complainant’s demeanour and the contextual difficulties of intra-family rape allegations.


In evaluating the further evidence, the appellate court described the complainant’s testimony at the further evidence stage as incoherent, lacking detail, and expressed in vague references such as “that thing” or “it”. The court considered the further evidence to be unhelpful in clarifying the recantation and instead to have obscured the position. It emphasised the absence of specifics such as where the alleged rape by K[…] occurred and how the incident unfolded in a manner comparable to the earlier account.


A key evaluative feature of the court’s reasoning was its assessment of probability. It found it improbable that a nine-year-old child could have been instructed merely to name a different person and then independently fabricate a detailed narrative, and that this fabricated narrative would have been coherently delivered at age fourteen in the main trial, while the purported “truth” would be delivered incoherently at age seventeen. The court also found problematic the complainant’s phrasing that she should name the appellant if someone “asked” or “saw”, and considered that this lacked coherent logic depending on what “saw” meant in context.


The court also considered the circumstances that preceded and accompanied the recantation. It noted that the complainant changed her position after repeated questioning by her aunt, and drew the inference that this persistence amounted to pressure. It further considered it relevant that a meeting had occurred in the parole-related context, and that the complainant had attended an interaction with the appellant accompanied by a group of family members. In the court’s evaluation, these features supported the inference that family dynamics may have played a role and that the recantation was not consistent with an unprompted attempt to unburden a guilty conscience.


The court additionally noted that K[…] had not been mentioned as present at the relevant homestead or in the vicinity on the day in question, which did not support the alternative perpetrator version.


On the submission that the complainant had not reported the rape voluntarily but only after her mother’s inspection, the court held that a first report is not a mandatory requirement for the State’s case to succeed. It regarded the mother’s probing as a natural and reasonable response to a child limping and did not treat delayed disclosure, in the circumstances, as undermining the reliability of the State’s case. The court found that, even if disclosure occurred only after the inspection, the holistic body of evidence supported proof beyond reasonable doubt.


On the contradictions point, the court reaffirmed the principle that contradictions do not automatically justify rejection of evidence, as they may indicate error rather than fabrication. It identified the contradictions relied upon by the appellant as including the location description (behind the homestead versus being dragged into a forest), the presence or absence of bruising on the buttocks, and the report of anal penetration to the doctor versus vaginal-only penetration in the complainant’s trial testimony. The court accepted that the trial court had considered these contradictions, treated the complainant’s evidence as not “without a blemish”, and nonetheless accepted it as truthful when considered with the totality of the evidence.


The alibi evidence was evaluated alongside the State’s case and did not persuade the court. It noted that even on the alibi witness’s version, the witness and the appellant separated at the river, and thus the alibi did not account for the full relevant timeframe. The court also relied on the trial court’s assessment that the alibi witness appeared coached, supported by features such as volunteering evidence before being led, giving matching time estimates, and lacking knowledge of the date of the incident.


Considering the totality of the main trial evidence together with the further evidence record and the trial court’s credibility and demeanour findings, the appellate court concluded that there was no basis to interfere with the conviction.


5. Outcome and Relief


The High Court dismissed the appeal against conviction and confirmed the appellant’s conviction. No separate costs order was made, consistent with the criminal appellate context and the terms of the order issued.


Cases Cited


S v Francis 1991 (1) SACR 198 (A)


R v Dhlumayo and Another 1948 (2) SA 677 (A)


S v Hadebe and Others 1997 (2) SACR 641 (SCA)


Masango v S [2024] ZAGPPHC 64


S v Bruiners en ’n Ander 1998 (2) SACR 432 (SE)


S v Vilakazi [2016] ZASCA 103; 2016 (2) SACR 365 (SCA)


S v McKenzie 2025 (1) SACR 568 (WCC)


S v Mkohle 1990 (1) SACR 95 (A)


Legislation Cited


Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, section 3


Children’s Act 38 of 2005, section 120


Criminal Procedure Act 51 of 1977, section 309B(2)(a)


Criminal Procedure Act 51 of 1977, section 316(5)(a)


Criminal Procedure Act 51 of 1977, section 316(5)(b)


Criminal Procedure Act 51 of 1977, section 316(5)(c)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the appeal court’s limited power to interfere with factual findings applied, and that there was no demonstrated misdirection warranting interference with the trial court’s acceptance of the State’s case.


The court held that the complainant’s recantation and further evidence did not credibly establish that a different perpetrator had raped her, and that the circumstances of the recantation, the lack of detail, and the incoherence of the further testimony did not displace the probative force of the complainant’s main trial evidence when considered with the supporting evidence.


The court held that the identified contradictions did not render the complainant’s evidence unreliable in a manner requiring rejection, and that the trial court had considered the contradictions and nonetheless was entitled to accept the complainant’s evidence as truthful on the totality of the evidence.


The court held that the appellant’s alibi, including the supporting witness, did not create a reasonable possibility of innocence on the record and was properly rejected.


LEGAL PRINCIPLES


An appellate court’s power to interfere with a trial court’s factual findings, including credibility findings, is limited, and in the absence of misdirection the trial court’s conclusions are presumed correct.


Contradictions in a witness’s evidence do not, without more, require rejection of that evidence; contradictions may reflect error and must be assessed in context and against the totality of the evidence.


A complainant’s first report, and whether disclosure was voluntary or prompted, is not in itself a mandatory prerequisite for a conviction; the ultimate question remains whether guilt is proved beyond reasonable doubt on a holistic assessment of all the evidence.


Where further evidence is adduced on appeal-related procedures under section 316(5) of the Criminal Procedure Act 51 of 1977, the credibility, coherence, detail, and context of such evidence are central to determining whether it undermines the integrity of the original conviction, particularly where it purports to alter the identity of the perpetrator.


An alibi must be evaluated against the totality of the evidence, and where it does not cover the relevant period or is supported by unreliable testimony, it may properly be rejected without creating a reasonable doubt.

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
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: AR 111/24
In the matter between:
T[…] Z[…]
and
THE STATE
APPELLANT
RESPONDENT

ORDER

On appeal from: Ladysmith Regional Court (Mr H Visagie sitting as court of first
instance):
1. The appellant's appeal against his conviction is dismissed.
2. The appellant's conviction is confirmed.

JUDGMENT

2
Chithi J (Shoba AJ concurring):
Introduction
[Il On 27 July 2020, the appellant, who was 20 years old, was convicted of
contravening s 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007, read with s 120 of the Children's Act 38 of 2005, by the
Ladysmith Regional Court (the trial court).
[2] On the same day, the appellant was sentenced to seven years' imprisonment,
of which two years' imprisonment was suspended for five years on condition that the
appellant was not convicted of any offence of which an act of sexual penetration or
sexual violence was an element, and which was committed during the period of
suspension.
[3] It is alleged that on or about 14 January 2016, and at or near Ekuvukeni in the
Regional Division of KwaZulu -Natal, the appeilant unlawfully and intentionally
committed an act of sexual penetration with the complainant, who was nine years of
age, by inserting his penis into her vagina without her consent.
[4] The appellant now appeals to this court, having been granted leave to appeal
by the trial court on 17 November 2023. Simultaneously with his application for leave
to appeal, the appellant also applied for leave to adduce further evidence in terms of
s 316(5)(a) and (b) of the Criminal Procedure Act 51 of 1977 (the CPA), which
application was also granted by the trial court. The appellant led the relevant
evidence, and the respondent did not lead any evidence in rebuttal. The trial court, as
it was required to do, recorded its findings and views with regard to that evidence,
including the sufficiency of the evidence and the demeanour and credibility of the
witnesses in terms of s 316(5)(c) of the CPA.
[5] Although there is no specific order from the appeal record which shows that
leave to adduce further evidence was granted by the trial court, the fact that it was
granted may be inferred from the fact that the matter was then adjourned for the
appellant to adduce further evidence. I shall return to this aspect later in the

appellant to adduce further evidence. I shall return to this aspect later in the
judgment.
Grounds of appeal

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[6] The trial was heard by the learned regional magistrate Mr H Visagie and the
applications for leave to appeal and to adduce further evidence were heard by the
learned regional magistrate Ms Eloff. It is not immediately clear from the appeal
record why this was the case. However, in terms of s 309B(2)(a) of the CPA, an
application for leave to appeal may be heard by any other magistrate of the court
concerned if the magistrate whose decision or order is sought to be appealed is not
available.
[7] The appellant did not file a notice to appeal in this The only ground upon which
the appellant seeks to appeal his conviction, as it emerges from his application for
leave to appeal, is that the complainant recanted her evidence. However, the
appellant's grounds of appeal are further buttressed in the appellant's heads of
argument, wherein the appellant contends as follows:
(a) While the trial court correctly found the cautionary rule to be applicable to the
complainant's evidence, the trial court failed to carefully scrutinise the evidence in
view of the contradictions and inconsistencies it contained.
(b) The trial court did not properly consider the contradictions, inconsistencies and
the possibility that the complainant might have falsely implicated the appellant.
(c) The trial court merely paid lip service to the cautionary rule by failing to
consider the several contradictions contained in the complainant's evidence and by
not looking for safeguards to guarantee the reliability of the complainant's evidence.
(d) The complainant did not report the rape out of her own volition but only
reported it after a genital inspection was conducted by her mother after she noticed
that the complainant was limping.
(e) The complainant's evidence was of such a poor quality that it could not sustain
the appellant's conviction.
(f) The trial court erred in failing to consider the following:
The complainant testified that she was penetrated by the appellant vaginally.

The complainant testified that she was penetrated by the appellant vaginally.
However, when she was examined by the doctor, she had informed the doctor
that she had been penetrated both vaginally and anally.
(ii) During the main trial, the complainant testified that she was raped by the
appellant. However, during further evidence, the complainant testified that she
had been raped by her uncle Mr K[...] S[...] (K[...]) and had falsely implicated the
appellant because K[...] had threatened her.

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(g) The trial court erred in rejecting the appellant's version, as corroborated by his
alibi witness, that at the time of the rape incident, the appellant had gone to the shop
and did not rape the complainant.
Factual background
[8] Before summarising the evidence, it is convenient to start off by mentioning
that at the time the complainant testified in the main trial, she was 14 years of age.
According to her birth certificate, the complainant was born on 5 October 2006. The
complainant testified that on 14 January 2016, before midday, she went to the S[...]
homestead, which was a neighbouring homestead, to play with her friend, NS. While
she was busy playing football, NS suddenly told the complainant that her mother was
calling her. The complainant took NS's word for it and started proceeding home. En
route home, the complainant was then accosted by the appellant, who was well -
known to her because they used to play football together at the S[...] homestead. He
grabbed her and pulled her towards the big rock which was behind her home. When
they got there, he placed her on her back on the rock. The appellant then undressed
her and proceeded to undress himself and thereafter had sexual intercourse with her
without her consent. When the complainant tried to resist the appellant's unlawful
advances, the appellant threatened to kill her. After the appellant had finished having
sexual intercourse with her, she proceeded home. She sustained bruises on her
buttocks because during the incident, the appellant forced her to lie on the rock.
[9] The complainant's mother, Ms T[...] L[...] N[...] , testified as the first report
witness. She testified that upon her arrival from work, she noticed that when the
complainant was walking, she was limping. She further testified that she then asked
the complainant several times what had happened to her. Upon her failure to
respond, she asked her to bend over in order to inspect her buttocks, as she thought

respond, she asked her to bend over in order to inspect her buttocks, as she thought
she might have a boil. When she did that the complainant started crying. She then
lowered the complainant's panty and observed that it was wet with a sem en-like
substance and that her vagina was also wet and reddish. It was at that stage that the
complainant reported to her that she had been raped by the appellant. She also
noticed that the complainant had some bruises on her buttocks. She then called the
maternal aunt who lived in another locality to come and inspect the complainant.
Upon her arrival, the complainant's aunt also conducted her own vaginal inspection

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on the complainant, and she thereafter enquired from the complainant what had
happened. The complainant then told her what had happened. The complainant's
aunt then suggested that the complainant must be taken to the appellant's home to
report the incident. As the complainant struggled to walk on her own, they carried
the complainant on their back. Upon their arrival at the appellant's home, the
appellant was not present. However, the appellant was later found by the river. The
complainant was later taken to St Chad's Clinic where she was examined by Dr Ndlela.
[10] The next witness was Dr Ndlela who confirmed that she examined the
complainant on 15 January 2016 at 01h00. She testified that the child reportedly told
her that the appellant followed her and grabbed her, dragged her into the forest and
raped her vaginally and anally. She further testified that the complainant walked with
her legs wide open. She further pointed out that the medical examination of the
complainant was difficult because the complainant was kicking and screaming and
resisted opening her legs. Dr Ndlela explained that the reason why the complainant
did not want to open her legs was due to the pain she was experiencing in her vagina.
The complainant appeared fearful and avoided making eye contact. The complainant
had no external injuries, but her legs were soiled with mud and grass, and she also
had grass in her hair.
[I ll The genital examination of the complainant revealed the following:
(a) An inflammation around the labia;
(b) Semen was coming out of the vagina; (c) A tear to the root of
the clitoris towards introitus;
(d) The urethral folds showed swelling;
The perineum had no tears but was tender on examination;
(f) There was no active bleeding of the vagina;
(g) In relation to the anal examination, Dr Ndlela testified that it was difficult to
conduct an anal examination properly because the skin surrounding the orifice was
soiled and not clean. The pigmentation there was brown;

soiled and not clean. The pigmentation there was brown;
(h) There were no haematomas or tags around;
(i) The orifice itself had a reflex dilation. There was no obvious swelling around the
orifice and there was no discharge;

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(j) There were no anal tears; and
(k) In relation to a vaginal discharge, Dr Ndlela testified that there was a fluid
which resembled semen.
[12] Dr Ndlela testified that she could not assess the hymen configuration and the
posterior fourchette areas because the child was kicking and screaming. Dr Ndlela
further testified that the complainant had told her that she had been penetrated both
vaginally and anally. But on examination of the anus, she did not find any tears
consistent with penetration. She testified further that it was common for girls of the
complainant's age not to distinguish whether penetration was vaginally or anally.
Additionally, the penetration of the vagina might also affect the perineum. She
concluded by testifying that she did not notice any injuries on the complainant's
buttocks.
[13] The appellant testified in his own defence and called an alibi witness. He stated
that he knew the complainant. The complainant was a member of his family, being
her grandmother's daughter. On 14 January 2016, he saw the complainant at the S[...]
homestead playing with other children. He had left her playing with other children
when he was sent by the grandmother from the S[...] homestead to buy her snuff
from the Mabaleni store, which was across the river. He went along with Mr S[...]
N[...] (Mr N[...]) and Mr N[...] S[...] (N[...]). They all went together until they parted
ways by the Busi River. He bought snuff and went back to the S[...] homestead and
handed it over to the S[...] grandmother. As he was leaving, he was grabbed by his
grandfather, Mr Q[...] S[...] , who took him home. Along the way, his grandfather
enquired why he had raped the complainant, which allegation he denied. When he
denied ever raping the complainant, his cousin whipped him.
[14] Upon his arrival at his home, he found the complainant, her mother and her
aunt. When he was asked why he had raped the complainant and denied doing so his

aunt. When he was asked why he had raped the complainant and denied doing so his
cousin continued to whip him and when the whip broke, he used a sjambok to assault
him.
[15] The appellant further testified that the complainant had pointed out the scene
of the rape incident as having been in front of her homestead, instead of having been

7
behind her homestead near the big rock. The appellant denied that he was found by
the river. Lastly, the appellant testified that Mr N[...] would vouch for his alibi.
[16] Under cross-examination, the appellant confirmed that upon his arrival at the
S[...] homestead, he and his companions, Mr N[...] and N[...], sat on poles which
formed part of the livestock kraal and watched the complainant and her friends
playing football. The appellant denied ever having had a fallout with the complainant
wherein he allegedly accused the complainant of stealing his aunt's lunchbox. When
asked about whether he knew what N[...] or Mr N[...] were wearing on the day in
question, the appellant did not recall. He also did not know what Mandisa, one of the
children who played with the complainant, was wearing. However, when he was
asked if he knew what the complainant was wearing, he testified that she was
wearing a pink skirt, although he did not recall the colour of her top. He testified that
the reason why he knew what the complainant was wearing was because the skirt
had layers and had just come into fashion. The complainant was the first child to have
that type of skirt in the area.
[17] Mr N[...], the appellant's alibi witness, testified that he, the appellant and N[...]
were at the S[...] homestead, sitting on poles which formed part of the livestock kraal.
The complainant and her friends were playing football. They all left them there at
15h00, still playing. The appellant was sent to buy snuff at the Mabeleni store by the
grandmother from the S[...] homestead, whereas he and N[...] were sent to buy
tobacco by the grandfather from the S[...] homestead at the Mchunu store. They all
went together until they parted ways by the Busi river. Under cross -examination, he
testified that when they returned from the Mchunu store, he found the appellant
already being confronted about the alleged rape of the complainant. Upon his return,

already being confronted about the alleged rape of the complainant. Upon his return,
he did not tell anyone that he had been with the appellant when he was going to the
Mabeleni store. He also did not get to know exactly how, when and at what time the
appellant allegedly raped the complainant.
[18] In response to the trial court's questions, Mr N[...] testified that the appellant
did not tell him what he had to say in court. He knew what he had to testify about
because it was something he knew. When the trial court asked him how he knew
what he was required to testify about when he started testifying even before the

8
appellant's counsel asked him questions, he was unable to account for that. Mr N[...]
did not know the date and month the complainant was allegedly raped by the
appellant when asked about it. When he was asked whether it was a mere
coincidence that he estimated 15h00 as the time when they left to go to the
respective stores, which happened to be the same time which the appellant
estimated as the time they left for the stores, he agreed.
The complainant's recanting statement
[19] As indicated earlier, after the appellant had been convicted and sentenced by
the trial court on 27 January 2020, on 17 November 2023he applied for leave to
appeal and to adduce further evidence. These two interrelated applications were
founded on the complainant's recanting statement, which reads:
'l, [the complainant], ID number 0 […].. .8[…], state under oath in English: Address:
Kwamnangeni l, [the complainant], wish to state that the person who actually raped me is
K[...] S[...] my biological father's younger brother and it was not T[…] Z[…].'
Further evidence
[20] Pursuant to both applications having been granted, the appellant testified and
thereafter led the recanting evidence of the complainant. The respondent did not
lead any evidence in rebuttal. The appellant confirmed that he was convicted and
sentenced by the trial court on 27 January 2020. However, before he was due to be
considered for parole, he had to undergo a victim offender dialogue (VOD). This
process entailed a dialogue which would be arranged at the instance of the
Department of Correctional Services (the department) between the appellant, as the
offender, and the complainant, as the victim. In this dialogue, the offender would
apologise to the victim, and the victim would express his/her views on whether
he/she was receptive to the offender receiving parole and whether he/she was
prepared to accept the offender's apology. The appellant testified that when this

prepared to accept the offender's apology. The appellant testified that when this
process was explained to him, he outrightly refused to participate because he had
never offended the complainant.
[211 However, during January 2022, he received information from a prison warder
that the complainant wanted to speak to see him in Ladysmith. A date was then
agreed on when he would be taken to Ladysmith to see the complainant. On the

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agreed date, he was transported to the Ladysmith Correctional Centre. Upon his
arrival, he met the complainant and her family members. The complainant then stood
up and apologised for causing him to be imprisoned for something he had nothing to
do with. He testified that during that interaction, the complainant told him that she
was not raped by him but that she had been raped by K[...]. He went on to state that
the complainant said that after K[...] raped her, he told the complainant that she must
say that it was the appellant who raped her. K[...] further threatened the complainant
that if she ever gave out his name, he would kill her and her mothen During August
2022, the appellant was released on parole.
[22] The appellant then called the evidence of the complainant. At the outset, this
court records that the complainant's evidence was incoherent and the complainant
did not give any specific details about the incident and this court, in summarising the
complainant's evidence, will not deviate from how the complainant presented her
evidence. The complainant testified that she knew the appellant as they were from
the same area. She confirmed that she remembered that something bad had
happened to her in January 201 6. She testified that K[...], who is a relative from the
S[...] homestead, did 'that thing' to hen When the appellant's counsel asked the
complainant what K[...] did to her, she stated that he inserted his penis into her
vagina. He thereafter instructed her to say that it was the appellant who raped her
and if she did not say that, he would kill her and her mother. When her mother came
home, she told her it was the appellant, because K[...] had instructed her to say it was
him.
[23] Under cross-examination, the complainant testified that when K[...] raped her,
he told her not to tell anyone. However, if someone asked her or if someone sawi , she
must say that it was the appellant and not him. Apart from the appellant being a boy

must say that it was the appellant and not him. Apart from the appellant being a boy
that she knew from the area, he was her sister's son. The complainant further
testified that her sister had other sons who were older than the appellant. She did not
know how K[...] chose the appellant as the person to be implicated. The complainant
stated that the details of her version in the main trial were not spoon -fed to her by
K[...] but were a product of her own making. All that K[...] told her was to say that it
was the appellant who raped her.

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[24] When the complainant was asked when had she decided to tell the truth, she
stated that she had wanted to do so since 2023. The reason why she decided to tell
the truth is because that is what she always wanted to do. The complainant testified
that what triggered her to tell the truth is that during one particular day in December
2022, while she was sitting alone feeling sick as she was suffering from a headache,
she was approached by her aunt. She was not entirely sure how it came about that
she and her aun t engaged in a conversation concerning the rape incident involving
the appellant. However, her aunt enquired from her if she was sure that it was the
appellant who had done 'that' to her. When she answered in the affirmative, her aunt
repeated the enquiry if she was really sure that it was the appellant. At that moment
she started crying because she wanted to tell the truth.

1 By saying 'if someone saw' it was not clear whether the appellant meant if someone saw any signs
that she might have been raped or if she meant that if someone saw when the appellant raped her.
[25] She testified that the reason why she did not tell the truth immediately and only
did so after she was asked for the second time if she was really sure is because she
was afraid. However, she realised that being afraid did not help the situation. She felt
bad that the appellant was imprisoned for something he did not do. The complainant
testified that K[...] was deceased. However, when she told her aunt that it was him
who raped her, K[...] was still alive but was sick. K[...] was then called by the family
and confronted. However, he denied in front of everyone that he raped the
complainant. Lastly, the complainant confirmed that she was 17 years old.
The issues
[26] The following are the issues which this court must determine:
(a) Whether the complainant substituted her actual assailant, K[...], for the
appellant as the perpetrator.
(b) Whether the contradictions in the complainant's evidence rendered it

(b) Whether the contradictions in the complainant's evidence rendered it
unreliable, warranting its rejection.
The parties' submissions

11
[27] Ms Anastasiou -Krause, on behalf of the appellant, argued that there was no
dispute that the complainant was raped. However, the complainant replaced the
actual perpetrator with the appellant. She argued further that what complicated the
respondent's case was that the complainant never volunteered the report about the
rape incident when she was probed by her mother. She therefore urged this court to
uphold the appeal. Conversely, Mr Sokhela, for the respondent, argued that the
appellant's conviction was in order. He contended that the trial court did not
misdirect itself in any way. He pointed out that the complainant gave a detailed
account of what had happened to her. Mr
Sokhela therefore urged this court to dismiss the appeal.
The powers of a court of appeal
[281 It is trite that the powers of a court of appeal to interfere with the findings of fact of a
trial court are limited: 1
'In the absence of any misdirection the trial Court's conclusion, including its acceptance of D'S
evidence, is presumed to be correct.'
[29] It is through this lens which this court will consider each of the issues which
must be determined.
Whether the complainant substituted her actual assailant with the appellant
[30] It is common cause that the appellant was sexually violated on 14 January 2016
but what is in dispute is the identity of the perpetrator. The issues of the identity of
the complainant's actual assailant, the appellant's alibi, and the further evidence
which the appellant adduced can all be conveniently dealt with under this topic. Even
before the appellant applied and was granted leave to adduce further evidence, the
trial court pertinently dealt with this issue.
[311 The trial court remarked as follows:
'During cross -examination of the complainant the possibility that she identified the wrong
person as a perpetrator was raised. The evidence does not allow for that possibility. The

1 S v Francis 1991 (1) SACR 198 (A) at 204d, where the court referred to R v Dhlumayo and Another

1948 (2) SA 677 (A) at 705. See also S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645e - f,
and Masango v S [2024] ZAGPPHC 64 para 3.

12
complainant knows the accused very well. They used to play football together. The alleged
incident took place during broad daylight, and she was not in his company only for a fleeting
moment. The accused walked with her and even talked with her about going to the shop and
after that he spent a few more minutes with her while having sexual intercourse with her. It
leaves only one other possibility which has to be excluded beyond a reasonable doubt and
that is that someone else had raped her and that she chose to implicate the accused. It was
not suggested that she had any motive to implicate the accused falsely. However, she was
frank and made it clear that she does not like the accused. Her dislike for the accused stems
from the fact that he had falsely accused her of eating food at the church which was not
meant for her on the previous day. This the accused denied. The complainant implicated the
accused by name shortly after the incident.'
[32] The trial court further remarked:
'l am mindful of the fact that the complainant did not immediately volunteer the information
to anyone and that she only did so after someone had examined her genitalia.'
[33] The trial court's remarks must be considered along with the complainant's
recanting statement and evidence. The complainant tersely states in her statement in
a single sentence that it was not the appellant who actually raped her but K[...].
Conventionally, the purpose of a police statement is to provide details to enable the
prosecution to decide whether to institute a prosecution and the statement of a
witness is not intended to be a precursor to that witness' evidence in court. 2 While a
recanting statement serves a different purpose than an ordinary police statement, in
my view, there is no reason why a recanting statement should fall short of the general
benchmark and be unnecessarily sketchy. A recanting statement may well hold the
key to the accused's personal freedom.

key to the accused's personal freedom.
[34] The trial court granted the appellant's application to adduce further evidence,
sketchy as the complainant's recanting statement was. The findings which the trial
court made after hearing further evidence are noteworthy. The trial court remarked:
'l am well aware of the fact that in a case where family is involved .... in a rape scenario there
are so many different layers and nuances involved. And it is often difficult for a Court to hear
the matter, to actually be completely aware and to understand how all these things fit
together. I am sure that there is going to be a lot of arguments raised on appeal in this case
by the State and I can clearly see why. I have to agree with the prosecutor's submission that
obviously the court of appeal will not be able to see what I saw today but I can say that it is

2 S v Bruiners en 'n Ander 1998 (2) SACR 432 (SE) at 437h.

13
clear that the victim is extremely shy. She crawled into a little corner in the intermediary
room. Her head is hanging. She finds it very difficult for her to look at the camera. The set up
is such that she must look at the camera. And then Ms Z […] had to go to the extent of asking
this Court to allow her to testify in the intermediary room because although she is 17 years
old, she did not want to testify in open court.'
[35] The complainant's further evidence was entirely incoherent. It did not augment
and give content to what was, as previously stated, a sketchy recanting statement.
What the complainant's further evidence did was to obfuscate the position. The
complainant spoke in riddles instead of speaking directly. The complainant's evidence
is lacking in details and specifics. The complainant, when she spoke about the rape
incident, preferred to refer to it as 'that thing' or 'it'. The complainant's evidence did
not demons trate any originality The complainant testified as if she was schooled
about what to say. Crucially, the complainant failed to state specifically where K[...]
raped her or whether it was on the same spot where she had alleged, she had been
raped by the appellant, and whether, before raping her, K[...] took off his clothes or
whether K[...] only lowered his pants and underwear. What was striking in the
complainant's further evidence was her assertion that K[...] suggested to her that if
someone either asked her or if someone saw, she must say it was the appellant. If by
saying 'if someone saw' the complainant meant if someone saw when the appellant
raped her, the person concerned would not need to be told by the complainant what
she or he would have witnessed her/himself. Additionally, the complainant sought to
conceal the fact that the appellant was her sister's son by referring to him as 'a boy
from the area'.
[36] Moreover, the appellant testified that what constituted her version in the main

[36] Moreover, the appellant testified that what constituted her version in the main
trial was manufactured by her on her own and that it was not spoon -fed to her by
K[...]. It is highly improbable that K[...], having successfully persuaded the
complainant that she should falsely implicate the appellant, would have left it to the
complainant to invent the facts surrounding the incident, especially at the young age
of nine years. What further makes this version highly improbable is that the
complainant, when she was only nine years old, was able to give a coherent account
of what was supposedly her own manufactured version but at 17 years of age, she
could not give a coherent account of what was supposedly a true account of what
happened to her.

14
[37] Importantly, the circumstances under which the complainant came to make her
recanting statement are relevant. The complainant, while she was in peace and quiet
in her room suffering from a headache, was approached by her aunt. The
complainant's aunt enquired from her if it was indeed the appellant who raped her .
When the complainant confirmed that it was the appellant who raped her, her aunt
persisted with the enquiry. This is how the recanting statement came about. In my
view, had the complainant been haunted by her guilty conscience and always wanted
to tell the truth, it is improbable that she would not have confirmed to her aunt upon
her first enquiry that she was indeed not raped by the appellant. The persistence on
the part of the complainant's aunt with the enquiry, in my view, amounted to her
bringing pressure to bear on the complainant.
[38] It should be remembered that the approach by the complainant's aunt was
preceded by a meeting between the appellant and the department, wherein the
appellant was told to apologise to the complainant through the VOD before he could
be considered for parole, which process the appellant outrightly rejected to
participate in. Further, when the complainant was taken to apologise to the appellant,
she was taken by a group of family members, although the number of family
members was not specified nor were the names of the persons who accompanied the
complainant. The question which has to be asked is why did the complainant have to
be accompanied by a group of family members? If this was not meant to bring
pressure to bear on the complainant and to ensure that she had carried the wishes of
her family, was it not sufficient if she was accompanied by her mother? Put
differently, if the complainant wanted to genuinely apologise to the appellant, was it
not enough if she was accompanied only by her mother?
[39] The remarks by the trial court in its ruling answer these questions. The family

[39] The remarks by the trial court in its ruling answer these questions. The family
dynamics and the nuances to which the trial court referred in its ruling clearly played
a role in this case. The circumstances under which the complainant came to recant
her evidence are not consistent with those of a person who wanted to offload their
guilty conscience. Instead, they are demonstrative of a person who has been subtly
pressured to recant her evidence. Even the very conduct of the complainant when
she led her furt her evidence is not consistent with that of a person who wanted to
take the trial court into her confidence by telling the truth. The poor quality of the

15
further evidence which the complainant led is a testament to this fact. The trial court,
being steeped in the atmosphere of the trial, pertinently remarked about the
complainant's demeanour and this court need to say no more.
[40] In my view, the detailed nature of the complainant's evidence which she led in
the main trial showed that she had personal knowledge about the events, as opposed
to the sketchy evidence which she adduced during further evidence, which left this
court with a distinct impression that the complainant was schooled in relation to
what to say.
[411 Additionally, K[...] was never mentioned as having been present at the S[...]
homestead or in the near vicinity on 14 January 2016.
[42] Pertaining to Ms Anastasiou -Krause's contention that the complainant never
volunteered the report about the rape incident but that she was probed by her
mother, it is trite that a first report is not a mandatory requirement for the State's
case to succeed.3The trial court was alive to this fact. This court is satisfied that even if
there was no voluntary report of the rape by the complainant, on the holistic
consideration of the evidence presented by the respondent, the appellant's guilt was
proved beyond reasonable doubt.
[431 In any event, it was never the appellant's case that the complainant's mother
schooled her to falsely implicate the appellant. Any reasonable parent who saw her
child limping would have been expected not only to enquire but also to probe and
investigate the circumstances which led to her child limping.
Whether the contradictions in the complainant's evidence rendered it unreliable [44]
It was contended on behalf of the appellant that the contradictions in the
complainant's evidence rendered her evidence unreliable and could not possibly have
sustained the appellant's conviction. The contradictions concerned related to:

3 S v Vilakazi [2016] ZASCA 103; 2016 (2) SACR 365 (SCA) paras 14 - 16; S v McKenzie 2025 (1)
SACR 568 (WCC) para 11 .

16
(a) Whether the complainant was raped behind her homestead or whether she
was dragged into the forest, as Dr Ndlela testified.
(b) Whether the complainant sustained any bruises on her buttocks or if she
sustained no injuries, as Dr Ndlela testified.
(c) Whether the appellant was raped both vaginally and anally, as testified by Dr
Ndlela or only vaginally, as testified by the complainant.
[45] It is trite that contradictions per se do not lead to the rejection of a witness'
evidence. The contradictions may simply be indicative of an error.4 The trial court was
alive to these contradictions. In acknowledging them, it stated that the complainant's
evidence was not without a blemish. It specifically dealt with these contradictions in
its judgment6 and it is unnecessary for this court to repeat what the trial court stated.
Suffice it to say that the trial court was satisfied that the truth had been told and
accepted the evidence presented by the respondent.
[46] When all of this evidence is considered, along with the appellant's alibi, I am
unable to fault the trial court's findings. Apart from the fact that the complainant
disputed N[...] and Mr N[...]'s presence at the S[...] homestead on 14 January 2016,
even if they were present and went along with the appellant, they parted ways with
the appellant by the Busi river. By the time they came back from the Mchunu store,
the appellant was already being confronted about the rape of the complainant. To
complicate matters for the appellant, his alibi witness did not even know the date of
the rape incident. I agree with the trial court that Mr N[...] was coached in relation to
what to say. This was demonstrated by the fact that he started testifying without
being led and gave the same details with regard to the time of their departure to the
stores.
[47] Considering the totality of the evidence, as adduced in the main trial and
during further evidence, the appellant's appeal must fail.
Order
[48] In the result, I make the following order:

Order
[48] In the result, I make the following order:

4 S v Mkohle 1990 (1) SACR 95 (A) at 98f -
g. 6 The record at pages 168 -169.

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1 . The appellant's appeal against his conviction is dismissed.
2. The appellant's conviction is confirmed.

CHITHI J

SHOBA AJ

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APPEARANCES
For the AppellantMs Anastasiou-Krause
Instructed by Legal Aid South Africa
Pietermaritzburg Local Office
187 Hoosen Haffejee Street
Pietermaritzburg
For the RespondentMr S I Sokhela
Instructed by : Deputy Director of Public Prosecutions
286 Pietermaritz Street
Pietermaritzburg
Tel: 033 392 8700
Date of hearing7 November 2025
Date of judgment23 January 2026

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