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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMATITZBURG
AR No.: 89/2024
In the matter between:
MTHOKOZISI NKANYISO BUTHELEZI APPELLANT
and
THE STATE RESPONDENT
ORDER
___________________________________________________________________
On appeal from: the Ntuzuma Regional Court (sitting as court of first instance):
1. The appeal against conviction is upheld.
2. The conviction and sentence are set aside.
JUDGMENT
___________________________________________________________________
Sibiya AJ (Harrison J concurring)
[1] On 1 December 2023 , the appellant was convicted in the Regional Court,
sitting at Ntuzuma, on a charge of compelled self-sexual assault of an eight year-old
2
complainant, in contravention of s 7 (a) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 (“the Act”). He was sentenced to five
years’ imprisonment, wholly suspended for a period of five years. Aggrieved by his
conviction, he unsuccessfully applied for leave to appeal. However on petitioning this
court, he was, on 7 March 2024, granted leave to appeal against his conviction only.
[2] The charge preferred against the appellant was that on or about 23 October
2022, and at or near KwaMashu, the appellant unlawfully and intentionally attempted
to commit a sexual offence with the complainant, without her consent, to engage in a
sexually suggestive act, by telling the complainant to touch her vagina while, he was
rubbing his penis.
[3] The appellant pleaded not guilty to the charge. In convicting the appellant , the
court a quo accepted the evidence of t he complainant as credible and reliable . The
complainant was a single witness to the alleged offence.
Grounds of appeal
[4] In his grounds of appeal the appellant raises two central issues, firstly, the
competency and admissibility of the evidence of a child witness, as contemplated in
s 164 of the Criminal Procedure Act 51 of 1977 (“the CPA”) , and secondly, the
reliability and sufficiency of the evidence of State witnesses to sustain a conviction
beyond a reasonable doubt.
[5] Mr Pillay, on behalf of t he appellant, submitted that the court a quo
misdirected itself by failing to conduct a proper preliminary enquiry to determine
whether the child complainant understood the nature and import of the oath, before
proceeding to an assessment of her understanding of the truth and lies. He
contended that the sequence contemplated in s 164 of the CPA was not followed,
that the complainant was inadequately admonished to speak the truth, and that both
the State and the defen ce were denied an opportunity to participate in the
the State and the defen ce were denied an opportunity to participate in the
competency enquiry. On this basis, he argued that the complainant’s evidence was
improperly admitted.
3
[6] With regards to the merits, Mr Pillay submitted that the court a quo erred by
attaching undue weight to the evidence of the State witnesses despite material
contradictions and inconsistencies . He argued that th ese discrepancies were not
peripheral, but went to the heart of the State’s case , rendering the evidence
unreliable and insufficient to meet the requisite standard of proof.
[7] The respondent contended that the trial court did not misdirect itself in respect
of the competency enquiry. It submitted that the court engaged the complainant on
her ability to distinguish between truth and lies, correctly found her competent to
testify, and duly admonished her to tell the truth . The respondent further argued that
the appellant’s criticism of the nature and depth of the questions posed during the
competency enquiry was unsubstantiated. It emphasised that the appellant failed to
demonstrate what additional or alternative questions ought to have been asked in
order to satisfy the requirements of s 164 of the CPA.
[8] Mr Moolman, on behalf of the respondent, submitted that the record does not
support the contention that either party was precluded from participating in the
competency enquiry. He argued that a purposive interpretation of s 164(1) makes it
clear that the responsibility rests with the court a quo , as a creature of statute, to
satisfy itself that the witness is competent to testify, and that the enquiry need not
assume a rigid or formulaic form, provided its purpose is fulfilled.
The competency test
[9] Section 164(1) of the CPA provides:
‘Any person, who is found not to understand the nature and import of the oath or the
affirmation, may be admitted to give evidence in criminal proceedings without taking the oath
or making the affirmation: Provided that such person shall, in lieu of the oath or affirmation,
be admonished by the presiding judge or judicial officer to speak the truth.’
be admonished by the presiding judge or judicial officer to speak the truth.’
[10] The complainant was nine years old at the time of her testimon y. The record
reflects that the competency enquiry was triggered by the complainant’s response
when the learned magistrate introduced himself and explained that his task was to
establish whether she understood the difference between truth and lies. Her
assertion that she did not know the difference necessitated the enquiry in terms of s
4
164. The magistrate was accordingly obliged to satisfy himself that the complainant
appreciated the duty to tell the truth before permitting her to testify upon admonition.
[11] It is settled that the object of s 164 is to ensure that a child witness who does
not understand the nature and import of the oath nevertheless appreciates the duty
to speak the truth. The enquiry is functional rather than formalistic. The record must
demonstrate with sufficient clarity that the trial court applied its mind to the statutory
requirements and was satisfied that the witness possessed the requisite capacity
and understanding to speak the truth.
[12] As stated by the Constitutional Court in Director of Public Prosecutions,
Transvaal v Minister of Justice and Constitutional Development , and Others ,1 the
purpose of questioning the child, as envisaged in s 164, is not to get the child to
demonstrate knowledge of the abstract concepts of truth and falsehood, but to
determine whether the child understands what it means to speak the truth.
[13] In casu, the learned magistrate posed simple, age-appropriate questions
concerning the complainant’s personal circumstances , followed by hypothetical
questions designed to test her understanding of truth and lies. The complainant was
questioned about her age, the location of her school , the people with whom she
resided, her grade at school, and the name s of her teacher and friend . When
confronted with a deliberately false proposition ab out her gender and the day of the
week, she correctly identified them as lie s. She further indicated that telling lies was
a bad thing and explained that she would be punished by her mother if she lied. Her
responses demonstrated not only an intellectual distinction between truth and lies ,
but also a moral appreciation of the duty to tell the truth.
[14] In S v Mokoena,2 the court stated:
‘By the very nature of things, such a witness would more often than not be a young child,
‘By the very nature of things, such a witness would more often than not be a young child,
who could explain, with the help of devices such as anatomical dolls, whatever harm might
have befallen him or her, without knowing what the word “truth” means.’
1 Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and
Others [2009] ZACC 8; 2009 (2) SACR 130 (CC) para 165
2 S v Mokoena 2008 (5) SA 578 (T) para 140.
5
The questions directed at everyday experiences and concrete examples are often
the most effective means of assessing a child’s competency.
[15] The appellant’s complaint that the questions were “elementary” is therefore
misconceived. The discretion with regards to the nature of questions to be posed
remains the discretion of the presiding officer.
[16] Once the magistrate was satisfied that the complainant understood the
difference between truth and lies, he correctly proceeded to enquire whether she
understood the nature of the oath. Upon her indication that she did not, she was
admonished to tell the truth. This sequence accords with the approach endorsed in S
v Matshivha,3 where it was stressed that the failure to administer an oath is not fatal
where a witness is properly admonished in terms of s 164 and the record reflects a
clear finding of competency.
[17] There is moreover nothing in the record to suggest that either party was
prevented from participating in the competency enquiry. In any event, the ultimate
responsibility for conducting the enquiry rests with the presiding officer. As long as
the record discloses that the court applied its mind to the statutory requirements and
reached a reasoned conclusion, an appellate court will not lightly interfere.
[18] In the circumstances, it is found that the learned magistrate exercised his
discretion judicially, applied the correct legal test, and committed no irregularity in
finding that the complainant was competent to testify upon admonition in terms of s
164.
The evidence
[19] In proving its case the respondent led the evidence of two witnesses. The
complainant testified that she knew the appellant as a neighbour at L[...] T[...] S[...]
(L[...]), where their respective homes were situated, one house apart. On 23 October
2022 she was playing near the appellant’s home in the company of her six -year-old
brother and her eight-year-old friend when the appellant called them and asked that
brother and her eight-year-old friend when the appellant called them and asked that
3 S v Matshivha [2013] ZASCA 124; 2014 (1) SACR 29 (SCA).
6
they go purchase cigarettes on his behalf. Upon their return, he instructed them to go
back and buy rolling paper, commonly referred to as “rizla”.
[20] After they returned from the shop, the appellant instructed the complainant’s
brother and her friend to go and play outside the house , while directing the
complainant to remain behind in the bedroom with him. While inside the bedroom,
the appellant instructed the complainant to touch her “front”, which she assumed
meant her private part because the appellant was pointing at her private part . She
refused to comply with his instruction, despite the appellant persisting and shouting
at her to do so.
[21] The complainant testified further that when her brother and friend later
entered the house, her brother enquired from the appellant why the complainant had
been kept inside the bedroom. This created an opportunity for the complainant to
leave the house. The appellant called her back and informed her that he could not
give her money in the presence of her brother and frien d. He then gave her a R2
coin, which she used to buy chips that she shared with her brother and friend. She
testified that she reported the appellant’s conduct to her mother, older sister M[...],
and one of her neighbours.
[22] Under cross-examination the complainant explained that she had purchased
cigarettes from Magwala’s shop, notwithstanding that cigarettes a nd chips were also
sold at her home. She stated that her 15-year-old sister M[...], who was the only
person responsible for selling items on the day, was unavailable at the time as she
was taking a bath.
[23] She confirmed that members of the community confronted the appellant
alleging that he had raped her . However, she informed them that the appellant had
not raped or done anything to her. She further confirmed that members of the
community sought the appellant’s eviction from L[...].
[24] The complainant’s mother testified that on 23 October 2022 she was at her
[24] The complainant’s mother testified that on 23 October 2022 she was at her
workplace when she received a telephone call from her daughter M[...] informing her
that the appellant had tried to rape the complainant. She had then engaged one
7
M[...]1, from the neighborhood, to confront the appellant in the presence of the three
children. Upon returning home the complainant related to her that the appellant had
called her and the other two children to his house to guard it while he went to bath .
After returning from bathing, the appellant sent the children to buy cigarettes.
[25] When they returned , the appellant instructed the complainant to remain
behind while her brother and friend were sent to buy rizla paper. Upon their return,
the appellant to ld the two children to go play outside the house, while the
complainant remained inside . The appellant then directed the complainant to touch
her vagina. He further asked the complainant whether she hated him, to which she
responded in the affirmative. He also enquired whether she wanted money to which
she declined. The complainant managed to run away when the other two children
questioned the appellant as to why the complainant was kept inside the house.
[26] The complainant’s mother further testified that when she asked the
complainant why she hated the appellant, the complainant explained that it was
because the appellant had instructed her to touch herself.
[27] Under cross-examination the complainant’s mother testified that the appellant
had admitted the allegations to M[...]1, who was in the company of a woman from the
neighborhood, Ms November. She confirmed that following the emergence of the
allegations, the appellant was evicted from L[...]. She denied that cigarettes and
chips were being sold at her house at the time and testified that she only began
selling goods from her house after she had lost her employment.
[28] The a ppellant testified that he stayed at L[...], two houses away from the
complainant’s home. He denied that he met the complainant on 23 October 2022 ,
stating that he had been in the company of one Hadebe and Mchunu. On 27 October
2022 he learnt for the first time from M[...]1, M[...] and November that he was
2022 he learnt for the first time from M[...]1, M[...] and November that he was
accused of having raped the complainant. November had reported that she had
found the complainant crying behind a house and on questioning her the
complainant had reported that the appellant had raped her.
8
[29] He testified that he never saw the complainant on the day he was confronted
as she was not at the meeting at M[...]1’s house. He saw M[...]1 leave the house and
later return to relay what the complainant had stated. M[...]1 reported that the
complainant had said she was not raped. He did not know the complainant prior to
the day he met her in court; however, he knew the complainant’s mother and older
sister, Sli, with whom he used to smoke cigarettes.
[30] He testified further that he had been falsely implicated by M[...]1 and
November, whose motive, according to him, was to secure his eviction from L[...] so
as to deprive him of a government subsidized, low-cost house (commonly referred to
as an RDP house). He stated that he had signed the requisite documentation and
contended that they preferred the allocation of the house to be diverted to a person
of their own choosing.
Judgment of the court a quo
[31] The court a quo, having acknowledged that there were two mutually
destructive versions before it, found that the complainant, even though she was a
young child and a single witness to the compelled sexual assault, was a credible and
reliable witness. It found that she did not exaggerate her testimony because she had
informed community members that the appellant did not rape her but had merely
instructed her to touch her vagina. The court found that her account was not one that
could reasonably have been fabricated by a child of her age stating that what she
said she experienced inside the appellant’s house does not fall within the field of
experience of an eight-year-old child.
[32] The court a quo found that the complain ant’s evidence was reliable , stating
that she reported the incident to M[...] immediately after it had happened, without
being placed under any duress.
[33] The court a quo further noted several contradictions and inconsistencies
between the complainant’s testimony and the report she made to her mother. It held
between the complainant’s testimony and the report she made to her mother. It held
that the y were not material, but natural and expected considering the age of the
complainant. It considered the following inconsistencies:
9
(a) The complainant stated that cigarettes and chips were sold at her home at the
time however her mother disputed that.
(b) The complainant did not testify about the appellant requesting them to guard
his house while he bathed.
(c) The complainant testified that she was instructed to remain in the bedroom
with the appellant when they returned from purchasing rizla, whereas the mother ’s
testimony is to the effect that the complainant did not go with the other two children
to purchase rizla.
(d) The complainant did not mention that the appellant had enquired from her
whether she wanted money and whether she liked him.
[34] The trial court rejected as false and improbable the appellant’s defen ce of a
conspiracy to evict him from L[...] and deprive him of an RDP house. It further drew a
negative inference from the appellant’s failure to call witnesses in his alibi defence.
The charge
[35] Mr Pillay submitted that the charge against the appellant was defective and
incapable of sustaining a conviction for a contravention of s 7(a) of the Act, in that it
failed to allege that the appellant “compelled” the complainant to engage in the
conduct complained of. He further contended that the complainant’s evidence that
she refused to comply with the appellant’s instruction reduced the allegations at
most, to an attempt to commit the offence. On this basis, he argued that the court a
quo misdirected itself in convicting the appellant on a contravention of s 7(a).
[36] Mr Moolman submitted that the charge was read with s 256 of the CPA which
provides that in the event the evidence proves only an attempt to commit the crime
rather than the completed act, a competent verdict of attempted commission can
follow. He contended that the court a quo did not misdirect itself in convicting the
appellant for a contravention of s 7(a).
[37] Section 7(a) of the Act provides that a person who unlawfully and intentionally
[37] Section 7(a) of the Act provides that a person who unlawfully and intentionally
compels a complainant, without the consent of the complainant , to engage in
sexually suggestive or lewd acts, with the complainant himself or herself, is guilty of
the offence of compelled self-sexual assault.
10
[38] The Act does not define the word “compel”. The Oxford English Dictionary
defines compel as:
‘bring about (something) by the use of force or pressure’.
[39] In BC v S 4 the court in de aling with the offence of compelled self-sexual
assault held:
‘[49] Count 6, compelled self -sexual assault has yet different elements and the intent is
different. The elements of the offence are: (1) compelling another person; (2) to engage in
conduct in the definition of the crime; (3) unlawfulness; (4) without the consent of the
compelled person; and (5) intention. It is to: (a) engage in -(i) masturbation; (ii) any form of
arousal or stimulation of a sexual nature of the female breasts; or (iii) sexually suggestive or
lewd acts, with B himself or herself; (b) engage in any act which has or may have the effect
of sexually arousing or sexually degrading B; or (c) cause B to penetrate in any manner
whatsoever his or her own genital organs or anus. This is the offence of compelled self -
sexual assault.
[50] Smythe, Pithay & Artz remarked that prior common law on indecent assault has
included forced self -masturbation. It is clear that this offence is a catch -all meant to cover
any remaining aspects of indecent assault not covered by the previous offences set out in
the Act or any other degrading sexual behaviour that was previously not covered under
common law. (Accentuation added) The crime is thus different than any other offence in the
SORMA. This includes the intent. It is for the complainant to “self -sexual assault”. (Footnote
omitted.)
[40] The act of compelling someone to do something is often defined by the result
of the coercion whereas “an attempt” occurs when the coercion did not result in the
desired behavior. If the evidence establishes coercive conduct and intent, but the
complainant did not ultimately comply, the appropriate conviction is attempted
compulsion.
[41] In casu, the evidence of the respondent was that the complainant did not
compulsion.
[41] In casu, the evidence of the respondent was that the complainant did not
touch herself. In convicting the appellant of contravening s 7(a) of the Act, compelled
self-sexual assault, the court a quo misdirected itself. At the most, and in the
4 BC v S [2020] ZAFSHC 180.
11
absence of material contradiction s in the respondent’s case, the appellant was
supposed to be convicted of an attempt to commit compelled self-sexual assault.
Analysis of the merits
[42] I now turn to deal with the merits of the case. It is trite that the onus rests
upon the State to prove the guilt of the accused beyond a reasonable doubt. Where
the version of the accused is reasonably possibly true, he is entitled to an acquittal.
[43] It is equally well established that a court of appeal will not lightly interfere with
the factual findings of a trial court , unless it is shown that such findings are vitiated
by a material misdirection. In S v Monyane and Others ,5 Ponnan JA, in emphasising
the powers of a court on appeal, stated as follows:
‘This court’s powers to interfere on appeal with the findings of fact of a trial court are limited.
It has not been suggested that the trial court misdirected itself in any respect. In the absence
of demonstrable and material misdirection by the trial court, its findings of fact are presumed
to be correct and will only be disregarded if the recorded evidence shows them to be clearly
wrong (S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645e -f). This, in my view, is
certainly not a case in which a thorough reading of the record leaves me in any doubt as to
the correctness of the trial court’s factual findings. Bearing in mind the advantage that a trial
court has of seeing, hearing and appraising a witness, it is only in exceptional cases that this
court will be entitled to interfere with a trial court’s evaluation of oral testimony ( S v Francis
1991 (1) SACR 198 (A) at 204e).’
[44] The complainant was a single witness to the charge of compelled-sexual
assault. Section 208 of the CPA provides that an accused may be convicted on the
evidence of a single witness provided same is satisfactory in all material respects.6
[45] In Cele v S7, the dissenting judgment of Pillay J , the court, in dealing with the
[45] In Cele v S7, the dissenting judgment of Pillay J , the court, in dealing with the
evidence of a single child witness, held as follows:
‘[1] How does an appeal court approach the evidence of a single witness, a child testifying at
the age of eight years about an accused allegedly raping her three years earlier? With
caution and common sense, the authorities say. Children are both “highly imaginative” and
5 S v Monyane and Others [2006] ZASCA 113; 2008 (1) SACR 543 (SCA) para 15.
6 Sekoala v S [2024] ZASCA 18 para 35.
7 Cele v S [2016] 2 All SA 75 (KZP).
12
open to “suggestions by others”. Caution in the context means applying common sense to
assess whether the truth has been told and the evidence is trustworthy . Caution cannot
displace common sense. Credibility must be assessed “in the light of all the evidence”.
Caution is exercised not inflexibly but practically to avoid “injustice to the innocent” and, I
add, the injured. The trier of fact should be aware of the risks of a wrongful conviction arising
from the evidence of a single witness in the prosecution of a sexual offence and, I add, a
guilty person being erroneously let loose on society. The traditional assumption that the
motive to falsely implicate an accused is prevalent in sexual offences must be balanced with
the ever-increasing prevalence of rape, particularly of children, often by people they know.
Corroboration as independent evidence that confirms the testimony of a witness provides a
safeguard. To be relevant and material such corroboration must point to the guilt of the
accused.
[2] Consistency is another safeguard, bar the rule against self -corroboration.33 Reporting
the offence is not corroboration but goes to consistency of the complainant’s v ersion.
Demeanour is not decisive of a witness’s credibility but could reinforce an objective
assessment on the possibilities…’ (Footnotes omitted.)
[46] In S v Sauls and Others,8 the following was held:
‘There is no rule of thumb test or formula to apply when it comes to a consideration of the
credibility of the single witness (see the remarks of Rumpff JA is S v Webber 1971 (3) SA
754 (A) at 758 ). The trial judge will weigh his evidence, will consider its merits and demerits
and, having done so, will decide whether it is trustworthy and whether, despite the fact that
there are shortcomings or defects or contradictions in the testimony, he is satisfied that the
truth has been told. The cautionary rule referred to by De Villiers JP in 1932 [in R v Mokoena
1932 OPD 79 at 80] may be a guide to a right decision but it does not mean
“that the appeal must succeed if any criticism, however slender, of the witnesses’
evidence were well-founded”
(per Schreiner JA in R Nhlapo (AD 10 November 1952) quoted in R v Bellingham 1955 (2)
SA 566 at 569). It has been said more than once that the exercise of caution must not be
allowed to displace the existence of common sense.’
When was the offence committed?
[47] At the commencement of her evidence in chief , and on being led by the
prosecutrix about the date of the incident, the complainant testified that it occurred
8 S v Sauls and Others 1981 (3) SA 172 (A).
13
on 23 October 2022. Under cross-examination she stated that on the day cigarettes
and chips were sold at her home as well . Her evidence regarding the date of the
incident was at odds with her mother’s evidence, who testified that she only started
selling from her house after she lost her employment. Th is inconsistency is material
because it affects the appellant’s alibi defen ce that he was in the company of
Hadebe and Mchunu on the said date and never met the complainant.
[48] The respondent, upon hearing the appellant’s defen ce during the cross -
examination of the complain ant, bore a duty to establish the exact date of the
incident to rebut the alibi.
The first report
[49] It is common cause that the complainant’s mother was not the first report. The
complainant’s testimony was that she had reported the incident to her mother, her
sister M[...] and a neighbour. The respondent did not establish from her who the first
report was made to or the name of the neighbour she had mentioned. The
prosecutrix, on calling the complainant’s mother, had informed the court that she was
the first report, however it is common cause that the mother was not the first report.
The respondent led the evidence of the complainant’s mother to prove previous
consistent statements.
[50] Another consideration is that t he court a quo found that the complainant had
immediately made the report to M[...], however no such evidence appears from the
record. The court , in its analysis of evidence, stated that M[...] was the first report
without that evidence having been led . The court further made a factual finding that
the complainant’s report to M[...] was not made under duress. In the absence of the
said evidence on record, the court misdirected itself.
The appellant’s version
[51] It is common cause that the appellant was evicted from L[...] after the
allegations had emerged. It was not disputed that he was on the list of RDP house
allegations had emerged. It was not disputed that he was on the list of RDP house
allocations and that he had signed for it. The respondent did not lead any evidence
explaining November’s involvement with the complainant . The court a quo rejected
as improbable the appellant’s contention that his eviction was a product of
14
conspiracy aimed at falsely implicating him in the offence and to deprive him of the
benefit of a house allocation, which he had already signed for.
[52] The court a quo appreciated that the onus at all times rested with the
respondent to disprove the appellant’s alibi defence, it however emphasised that the
appellant’s failure to call witnesses in support of that alibi, in the face of direct
evidence, was a factor to consider. I understood it to mean that an adverse inference
would be drawn. The court did not, however, in the same breath , draw any adverse
inference from the respondent’s failure to call M[...], M[...]1 and November and
neither of the two children who were in the company of the complainant to testify. In
my view the court misdirected itself in this regard.
[53] The appellant’s undisputed evidence was that he learnt for the first time on 27
October 2022 of the allegations against him . If the respondent had called M[...]1,
M[...] or November to give evidence , the date of the commission of the alleged
compelled self-sexual assault would, in my view, have been easily ascertained. The
appellant’s evidence was that he was only arrested on 1 December 2022 . In the
absence of evidence explaining the reason for the delay in arresting the appellant
after he was confronted by M[...]1 and others, the appellant’s evidence of a collusion
to disqualify him from obtaining an RDP house remains reasonably possibly true.
Contradictions in the respondent’s case
[54] It is common cause that there were several contradictions in the respondent’s
case as alluded to in the court a quo’s judgment. When the evidence is considered in
its totality, the contradictions and inconsistencies in the respondent’s case go to the
heart of the appellant’s defen ce and are accordingly material. For the court to reject
an alibi defen ce, it must be sa tisfied that the State has succeeded in proving the
precise date of the commission of the offence. In Cele v S,9 the dissenting judgment
precise date of the commission of the offence. In Cele v S,9 the dissenting judgment
of Pilla J, the court held that: ‘Evidence of credibility cannot be approached in a piecemeal
manner. All the evidence for and against each party has to be viewed holistically.’
9 Cele v S para 69.
15
[55] The court a quo materially misdirected itself by failing to consider a glaring
inconsistency in the respondent’s evidence. The complainant testified that she
managed to flee from the appellant’s house when her brother and a friend entered
yet inexplicably returned thereafter to receive money from the appellant, who had
directed that it will only be given to her in the absence of her brother and a friend.
This inconsistency strikes at the heart of her version and was wholly ignored in the
assessment of her credibility.
[56] Another consideration is t he respondent’s failure to call M[...], M[...]1 or
November to clarify the discrepancies in its case. Their non -appearance at court
leaves a material and unexplained lacuna in the respondent’s case. In the absence
of an explanation for their non-appearance, an adverse inference is drawn in favour
of the appellant.
[57] In the circumstances, i t is found that the appellant’s version is reasonably
possibly true. The respondent failed to prove its case beyond a reasonable doubt.
Order
[58] In the result the following order will issue:
1. The appeal against conviction is upheld.
2. The conviction and sentence are set aside.
_____________________
Sibiya AJ
I agree.
___________________
Harrison J
16
Case Information
Date of appeal: 14 November 2025
Date of judgment: 13 February 2026
Appearances
Counsel for the appellant: T P Pillay
Instructed by: Legal Aid South Africa
22 Dorothy Nyembe Street
Durban
Tel: 031-3040100
Email: ThiagrajP@legal-aid.co.za
Counsel for the respondent: A Moolman
Office of the Director of Public Prosecutions
Southern Life Building
Durban
Tel: 031 334 5000