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
GAUTENG DIVISION, PRETORIA
CASE NO: A 129/2023
DPP REF NO: SA 23/2023
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates NO
In the matter between:
PULE ASHLEY MCDONALD MOKOU APPELLANT
and
THE STATE RESPONDENT
This Order is made an Order of Court by the Judge s whose names are
reflected herein, duly stamped by the Registrar of the Court and is
submitted electronically to the Parties/their legal representatives by
email. This Order is further uploaded to the electronic file of this matter
on Case Lines by the Judge or his/her Secretary. The date of this
judgment is deemed to be 31 March 2026
CORAM: MILLAR J et REID J
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ORDER
The following order is made:
1. The appeal against conviction and sentences on counts 1 and 2 is
upheld.
2. The conviction and sentences are set aside and therefore the applicant
is acquitted on both counts 1 and 2.
JUDGMENT
REID J (Millar J concurring):
[1] The above order was made an order of court on 26 March 2026.
[2] What follows is the reasons for that order.
Introduction
[3] On 8 February 2023, the appellant was convicted by the Regional
Court, Benoni, on one count of kidnapping (count 1) and one count of
rape, being a contravention of section 3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (count 2).
[4] On 10 February 2023, he was sentenced to five years’ imprisonment
on count 1, and to life imprisonment on count 2, with the sentence on
count 1 ordered to run concurrently with the sentence on count 2.
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[5] The appellant appeals against both his conviction and sentence. He is
currently out on bail pending the outcome of this appeal. As a result of
the life sentence imposed on count 2, the appellant enjoys an
automatic right of appeal.
[6] The central issue in this appeal is whether the State proved the guilt of
the appellant beyond a reasonable doubt. The appellant contends that
the magistrate erred in accepting the version of the complainant, who
was a single witness regarding the alleged kidnapping and rape, and
that her evidence was not satisfactory in every material respect, nor
was it sufficiently corroborated.
Background facts
[7] The incident giving rise to the charges occurred on 14 July 2017. The
complainant testified that she was at a golf club with friends. While
outside smoking, she encountered the appellant. According to the
complainant, the appellant assaulted her and, with the assistance of a
friend, Lucky, forced her into the appellant’s vehicle. She testified that
she was taken to the appellant’s house, where she was raped by the
appellant and later by Lucky.
[8] The appellant testified in his own defence. He admitted that he knew
the complainant and that they had previously had a relationship, or
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sexual encounters. He denied assaulting or raping the complainant. His
version was that an altercation had occurred at the golf club between
the complainant and his girlfriend, N[...] S[...], during which both women
sustained injuries. He suggested that they all go to his house so that he
could take them for medical attention the following day.
[9] He testified that he spent the night in his bedroom with his girlfriend
and never left the room. He stated that the complainant was left in the
garage with Lucky.
[10] The defence called N[...] S[...] , who testified that she had a physical
altercation with the complainant at the golf club, and that the appellant
did not assault the complainant.
[11] She also testified that she and the complainant engaged in sexual
activity in the presence of the appellant and Lucky whilst in the garage.
Legal principles
[12] The principles governing the evaluation of evidence in criminal cases
are well-established. The State bears the onus of proving the guilt of an
accused beyond a reasonable doubt. A court does not look at the
evidence implicating the accused in isolation; it must consider all the
evidence, both for the State and for the defence.
[13] In S v Van der M eyden 1999 (1) SACR 447 (W), it was held that the
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proper test is whether the evidence establishes the guilt of the accused
beyond reasonable doubt. If there is a reasonable possibility that an
innocent explanation put forward by the accused might be true, the
accused is entitled to an acquittal. This principle was confirmed on
appeal by this Court in S v Gwedlane 2015 JDR 2623 (GP).
[14] In S v V 2000 (1) SACR 453 (SCA), the Supreme Court of Appeal
reiterated that there is no obligation upon an accused person to
convince the court of his or her innocence. If the accused’s version is
reasonably possibly true, he or she is entitled to an acquittal, even if
the explanation is improbable. A court is not entitled to convict unless it
is satisfied not only that the explanation is improbable but that, beyond
a reasonable doubt, it is false.
[15] The magistrate a quo accepted the version of the complainant, stating
that she was “not evasive, hesitant and contradictory in her evidence”
and that her evidence was “by and large corroborated by the defence
except the question of kidnapping and rape”. With respect, I am of the
view that the magistrate misdirected himself in this regard materially,
for the reasons set out herein.
The complainant’s evidence
[16] The complainant’s evidence was fraught with difficulties. She admitted
to having consumed alcohol on the evening in question. Her memory of
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the events was conspicuously deficient. During cross -examination, on
numerous occasions she indicated that she “did not know” or “could not
remember” what had transpired. The record reveals that she gave such
responses on no less than 18 occasions.
[17] The magistrate appears to have overlooked the significance of these
deficiencies. When a witness’s memory is so impaired, the reliability of
her account is necessarily called into question. The fact that a witness
cannot remember crucial details is not a neutral factor; it goes to the
very core of the reliability of the evidence.
[18] Furthermore, the version of the complainant regarding the alleged
kidnapping at the golf club is inherently improbable. It is common cause
that there were numerous people present at the golf club. The
complainant testified that she was assaulted and forced into a vehicle,
and that the vehicle (which was an automatic vehicle) had to be pushed
to start.
[19] In these circumstances, it is improbable that no one observed the
incident or that the complainant, who was with her friends, would not
have called for help. Her friends did not testify, and no explanation was
given for their absence or why they did not become suspicious when
the complainant vanished.
[20] The complainant testified that she had her cell phone with her. She
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used it the next morning to send a voice note to her friend. Yet she
offered no explanation as to why she did not contact the police or her
friends shortly after the alleged kidnapping, especially considering that
she testified that she was alone in the toilet at the appellant’s house
and had ample opportunity to do so.
[21] Another significant factor is that the complainant received money from
the appellant’s brother the day after the incident. It is common cause
that the amount of money is significant, being R23,000. The evidence
regarding this payment was contradictory. The complainant and the
witness Phumza gave materially different accounts of the
circumstances surrounding the payment. The magistrate a quo ought to
have found that this gave the complainant a possible motive to falsely
accuse the appellant, particularly given that the appellant is a
businessman of means.
Corroboration
[22] The magistrate a quo found that the complainant’s evidence was
corroborated by other State witnesses. However, with respect, this
conclusion is not supported by the evidence.
[23] The witness Phumza testified that she received a voice note from the
complainant asking to be fetched. She found the complainant with
swollen eyes. This evidence does not corroborate the identity of the
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perpetrator or the fact of rape. It merely confirms that the complainant
was distressed.
[24] The witness S[...] M[...] testified that the complainant came to her
house and said she had been raped. Again, this does not constitute
corroboration of the allegations against the appellant; it is evidence of a
complaint, which evidence cannot be used as truth of the allegations.
[25] The objective medical evidence does not corroborate the complainant’s
version. The medical examination did not reveal injuries that were
necessarily consistent with rape, nor did it exclude the possibility that
the injuries sustained were the result of the altercation between the
complainant and the appellant’s girlfriend, as contended by the
defence.
[26] The complainant testified that she was forced to consume half a tablet.
This was never mentioned to the medical examiner, and no
toxicological evidence was presented to confirm this claim. If such an
event had occurred, it is likely that it would have been detected.
The defence version
[27] The magistrate rejected the version of the appellant and his witness,
N[...] S[...] . However, in doing so, he failed to apply the correct legal
test. The question is not whether the court believes the accused, but
whether there is a reasonable possibility that his version may be true.
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[28] The appellant’s version was consistent. He testified that there was an
altercation between the complainant and his girlfriend, that they all
went to his house, and that he spent the night with his girlfriend. His
evidence was corroborated by the medical findings on his girlfriend,
which showed that she had sustained injuries consistent with a physical
altercation.
[29] The evidence of N[...] S[...], while in parts improbable, was nonetheless
consistent with the appellant’s version that he did not rape the
complainant and that he was not present when any alleged rape
occurred. The fact that she gave evidence that may have been self -
serving does not render the appellant’s version false.
[30] The magistrate a quo’s rejection of the defence version was not based
on a proper consideration of the principles as set out in S v Van der
Myden and S v V . He appears to have approached the matter on the
basis that the appellant had to convince the court of his innocence.
That is a material misdirection.
Conclusion on conviction
[31] The evidence of the complainant was unreliable. She was intoxicated,
her memory was poor, and her account contained inherent
improbabilities. The objective medical evidence did not support her
version, and her conduct after the incident, including accepting money
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and consuming alcohol and food at the appellant’s home, was
inconsistent with that of a person who had been brutally raped.
[32] The complainant testified that the morning after the kidnapping and
rape, she intended to take part in a protest march. This is also not
consistent with a person who has been kidnapped, assaulted and
raped the previous evening.
[33] The magistrate ought to have found that the State did not discharge the
onus of proving the appellant’s guilt beyond a reasonable doubt. The
version of the appellant, that there was an altercation between the
complainant and his girlfriend and that he was not involved in any rape,
can be reasonably possibly true. The appellant is therefore entitled to
the benefit of the doubt.
[34] In light of this finding, it is not necessary to consider the appeal against
sentence.
[35] However, for completeness, I note that even if the conviction were to
stand, the magistrate’s failure to articulate why he convicted the
appellant under section 51(1) of Act 105 of 1997, and the absence of
evidence that the appellant acted in common purpose or inflicted
grievous bodily harm, would have rendered the sentence of life
imprisonment inappropriate. There is no indication on the record
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whether Lucky was similarly charged with rape, had the appellant been
found guilty of acting in common purpose with Lucky in raping the
complainant.
Finding
[36] For the reasons set out above, I find that the magistrate a quo
committed a material misdirection in finding the appellant guilty on
kidnapping and rape.
[37] In the result, the convictions and subsequent sentences are to be set
aside.
Order
[38] The following order is proposed:
(i) The appeal against conviction and sentences on counts 1 and 2
is upheld.
(ii) The conviction and sentences are set aside and therefore the
applicant is acquitted on both counts 1 and 2.
___________________
FMM REID
JUDGE OF THE HICH COURT
GAUTENG NORTH DIVISION
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PRETORIA
I agree
___________________
A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG NORTH DIVISION
PRETORIA
______________________________________________________________
DATE OF APPEAL: 26 MARCH 2026
DATE OF JUDGMENT: 26 MARCH 2026
REASONS: 31 MARCH 2021
Appearances:
For the appellant: Adv. M. van Wyngaard
For the respondent: Adv. S. Lalane