IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
THABO VICTOR THAMAE
and
THE STATE
Not reportable / Reportable
Case no: A 107 /2025
APPELLANT
RESPONDENT
Neutral citation: Thamae v The State (A107/2025) [2026] ZAFSHC 107 (20 March
2026)
Coram: REINDERS et MOLITSOANE JJ
Heard: 16 March 2026
Delivered: 20 March 2026
Summary: Appeal against conviction - identification of the perpetrator - cautionary
rule in respect of a single witness.
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ORDER
1 The appeal is dismissed.
2 The conviction and sentence are confirmed.
JUDGMENT
Reinders J (Molitsoane J concurring)
[1] The appellant was arraigned in the Regional Court, Welkom on a charge of rape
read with the provisions of s 51 (2), Part II, Schedule 2 of the Criminal Law Amendment
Act 105 of 1997. More in particular the state averred that in the early morning hours of
29 May 2023 the appellant had raped the complainant by committing an act of sexual
penetration with her without her consent.
[2] The appellant pleaded not guilty to the aforementioned charge, but having heard
evidence, the learned magistrate convicted and sentenced him to ten years'
imprisonment. The trial court refused leave to appeal, but this Court, on petition (Daniso
et Chesiwe JJ}, granted leave to the appellant to appeal his conviction.
[3] Mr Reyneke, appearing for the appellant. summarised the appellant's grounds of
appeal as follows:
'1.4.1 That the Court a quo erred in finding that the Appellant's guilt was proven beyond
reasonable doubt;
1.4.2 That the Court a quo erred.in accepting the evidence led on behalf of the State compared
to-
a) The Complainant's state of sobriety;
b) The conflicting version the Complainant gave;
c) The absence of injuries to the Appellant, supposedly inflicted by the Complainant ; and
d) The absence of a DNA analysis.
1.4.3 That the Court a quo did not properly evaluate the evidence as presented.'
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[4] The appeal is opposed by the state, as represented by Ms Moroka. The state
supports the conviction of the appellant by the trial court.
[5] The upshot of the version of the state, as accepted by the trial court, entailed the
following: The complainant testified that she was a patron at a tavern on the day in
question, accompanied by her cousin Me Ntshidi, where she had been consuming
alcohol. She was called outside of the tavern by a person, later identified by her as the
appellant. He grabbed and pulled her away from the tavern despite her resistance. The
appellant covered her mouth with his hands to prevent her from making alarm and took
her to a house adjacent to the tavern. He then strangled her and pulled her to the ground,
whereafter he undressed her and had sexual intercourse with her without her consent.
He even threatened to kill her and bashed her head against the wall. In order to get him
"off' her, she stabbed him with a broken bottle and managed to escape whereafter she
made a report that she had been raped and members of the South African Police (the
SAPS) arrived. A medical examination was performed on her, which findings were
recorded in the J88-report handed into evidence by agreement between the parties. Me
Ntshidi testified that in those early morning hours, she had spoken to the appellant, who
had been known to her, at the tavern. The appellant "pulled" the complainant from the
tavern despite the latter trying to resist against his pulling.
[6] The appellant denied that he had sexual intercourse with the complainant.
According to him, he was indeed at the tavern where he observed the complainant, who
had requested him to buy her a drink. He attempted to have a conversation with the
complainant, which advances she refused.
[7] It is common cause that the complainant was a single witness as to the identity of
the rapist upon the execution of the offence itself. The magistrate, having summarised
the rapist upon the execution of the offence itself. The magistrate, having summarised
the evidence tendered before her, provided her reasoning for convicting the appellant as
she did. It is evident from the judgment that she was alive to the manner in which she
had to adjudicate on the identity of the perpetrator who had raped the complainant,
considering the evidence of the complainant as a single witness in this respect. The
magistrate was also aware of the cautionary rule relating to identification. She dealt,
amongst others, with the ample opportunity that the complainant had to observe the
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appellant in close proximity and the lightning in and outside of the tavern . The
complainant also pointed the appellant out as her perpetrator to the South African Police
Service. Moreover, the magistrate found corroboration for the complainant's evidence,
not only in the evidence of Ms Ntshidi who had observed the appellant pulling the
complainant, but also in the in the uncontested J88 which indicated injuries to the
complainant's face as testified to by her and a white discharge from her vagina. In
evaluating the evidence in its totality, she alluded to discrepancies in the state case and
found them not to be material. The magistrate was satisfied that, despite such , the truth
had been told by the complainant and Ms Ntshidi.
[8] On the other hand, the appellant did not make a good impression on the
magistrate who found him to be evasive, his version to be flawed and not reasonably
possibly true in light of the totality of the evidence. In this regard, Mr Reyneke responsibly
observed as follows:
'Appellant's own version failed miserably, as it was put on his behalf that the Complainant had
asked him to buy her a drink, but his answer as to when she made that request (in the light of
his own evidence) , is still begging an answer. Even his Representative tried to curb the absence
of the said evidence by leading him to an answer, albeit not per his original version. I can thus
not submit that the summary by the Court a quo on this aspect was incorrect . . .'
[9] Despite the appellant complaining that the magistrate did not take into account
the complainant's state of sobriety, the record reflects that the magistrate satisfied herself
that the complainant could testify on what had transpired and her level of intoxication
was not such that she did not have control of her faculties. The magistrate dealt with the
absence of DNA evidence linking the appellant to the rape of the complainant and injuries
to the appellant. In my view the absence of such evidence, does not mean that the
to the appellant. In my view the absence of such evidence, does not mean that the
magistrate had erred by finding that the state has proven its case beyond a reasonable
doubt. I say so because the trial court concluded that:
' ... In light of the totality of the evidence and in light of factors which are common cause the court
finds that the evidence does indicate that it is the accused that pulled the complainant out of the
tavern. The rape of the complainant is not in dispute. The only reasonable inference that can be
drawn then is that it is the accused that had sexual intercourse with the complainant without her
consent and raped her ... in light of the totality of the evidence and the corroboration of evidence
of identification the court is satisfied that the requirements of caution is satisfied and that the
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accused has been clearly identified as the perpetrator in this crime .. .'. It is evident that the trial
court duly considered and evaluated all evidence placed before her holistically as she
was supposed to do.
[1 O] Having considered the submissions of Ms Moroka and Mr Reyneke and
scrutinised the judgment of the trial court as alluded to herein above, I have not been
convinced by the appellant that the magistrate had erred in any way as complained of in
his grounds of appeal or, for that matter, in any other manner. The appeal therefore
stands to be dismissed.
[11] The appeal lay only against the conviction of the appellant. I might mention in
passing, though, that the learned magistrate's deviation from the prescribed minimum
sentence of 15 years' (imposing 10 years') imprisonment by alluding to substantial and
compelling circumstances, is a discretion which can in any event not be interfered with
subject to trite case law for doing so.
[12] For all the reasons as indicated herein above, it follows that the appeal cannot
succeed. Accordingly, I make the following order:
1 The appeal is dismissed.
2 The conviction and sentence are confirmed.
C REIN E
E HIGH COURT
I concur.
JUDGE OF THE HIGH COURT
Appearances:
On behalf of the appellant
Instructed by:
On behalf of the respondent:
Instructed by:
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JD Reyneke
Legal Aid South Africa, Bloemfontein
MM Moroka
NDPP, Bloemfontein