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In the High Court of South Africa
(Western Cape Division, Cape Town)
Case No: A209/2025
In the matter between:
JEROME COETZEE APPELLANT
And
THE STATE RESPONDENT
Neutral citation: State v Coetzee (Appeal Case no A 209/2025) [2026] ZAWCHC …
(21 May 2025)
Coram: LEKHULENI J et TOEFY AJ
Heard: 6 February 2025
Delivered: 21 May 2025
Summary: Criminal Law: Complainant raped by the appellant, a member of SAPS,
while on duty. Appellant convicted and sentenced to 10 years’ imprisonment –
Appeal against conviction and sentence – Evidence of a single witness to be
approached with caution - guilt of appellant proven beyond a reasonable doubt –
Appellant’s version implausible – Appeal on sentence – Section 51(3) of Criminal
Law Amendment Act 105 of 1997 - No compelling and substantial circumstance
proven – Appeal on conviction and sentence dismissed.
JUDGMENT
LEKHULENI J
Introduction
[1] The escalation of gender -based violence in our country has evolved from a
scourge into a pervasive pandemic. This situation is particularly troubling when such
violence is committed by members of the South African Police Service (SAPS) in the
execution of their duties. The situation becomes increasingly concerning when law
enforcement officials at community service centres decline to assist victims of sexual
violence in filing charges, particularly when the allegations involve police officers.
The lack of support significantly undermines survivors' efforts to seek justice and
erodes trust in law enforcement. This matter is a quintessential example of this lived
reality.
[2] This is an appeal against the conviction and sentence imposed by the Strand
Regional Court on the appellant, a police sergeant, who was convicted of raping the
complainant whilst he was on duty. The appellant was convicted on 14 October 2024
on one count of sexual penetration in violation of section 3 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“the Sexual
Offences Act”). At the commencement of the trial, the appellant pleaded not guilty
and exercised his right to remain silent. Before the trial could commence, the
sentencing provisions envisaged in section 51(2) of the Criminal Law Amendment
Act 105 of 1997 (“the CLAA”) and the relevant competent verdicts in terms of section
256 of the Criminal Procedure Act 51 of 1977 (‘the CPA’) were explained to the
appellant, who confirmed that he understood. In addition to the rape charge, the
appellant also faced a charge of Kidnapping and a charge of obstructing the course
of justice. He was acquitted on these two counts at the end of the trial.
[3] On the rape charge, the State alleged that the appellant was guilty of the
crime of contravening the provisions of section 3 of the Sexual Offences Act in that
on or about the period of 4 July 2018 and at or near Greenfields, Lwandle in the
Regional Division of the Western Cape, the appellant did unlawfully and intentionally
commit an act of sexual penetration with a female person to wit, MW a 19 year old
girl, by inserting his penis into her vagina without her consent.
[4] The prescribed minimum sentence under the CLAA as amended, in particular
section 51(2) read with Part II of Schedule 2, for the charge against the appellant
was ten years of imprisonment, since the offence was committed before the
amendment to the CLAA on 5 August 2022 took effect. At the conclusion of the trial
on 14 October 2024, the Regional Magistrate, Ms A Ramos, convicted the appellant
on the charge of rape and found no substantial and compelling circumstances
meriting a deviation from the prescribed minimum sentence. Subsequent thereto, on
16 April 2025, the Regional Magistrate imposed a sentence of ten years
imprisonment as envisaged in section 51(2) of the CLAA and further made relevant
ancillary orders.
[5] In terms of section 103(1)(g) of the Firearms Control Act 60 of 2000, the trial
court declared the appellant unfit to possess a firearm. The court also made an
ancillary order in terms of section 299A of the CPA. It directed that the complainant
is to be advised of her rights to make representations should the appellant be
considered for parole ahead of finishing his sentence.
[6] Aggrieved by this decision, on 12 June 2025, the appellant applied for leave
to appeal before the court a quo in terms of section 309B of the CPA. In the
to appeal before the court a quo in terms of section 309B of the CPA. In the
application for leave to appeal, the appellant essentially asserted that the Regional
Magistrate misdirected herself in finding that the State had discharged its onus and
had proven the appellant’s guilt beyond a reasonable doubt. The appellant also
contended that the court a quo erred in failing to take into account that the
complainant contradicted herself on material aspects. On sentence, the appellant
submitted that the court a quo misdirected itself by overemphasising the interests of
the community and the severity of the offence, and by underemphasising the
appellant’s personal circumstances. The appellant further contended that the
sentence of 10 years’ imprisonment is startlingly inappropriate and therefore induces
a sense of shock. The court a quo granted the appellant leave to appeal . It denied
the appellant’s application for bail pending the outcome of his appeal.
[7] The appellant essentially relied on the same grounds in this appeal. The
appellant seeks an order from this court setting aside his conviction and the resultant
sentence.
Background facts
[8] To fully understand the key issues in this appeal, it is essential to provide a
brief overview of the material facts. The State called ten witnesses in a quest to
prove the appellant's guilt beyond a reasonable doubt. The appellant testified and
called no witnesses in his defence. Several documentary exhibits, including a
medical expert report, photographs of the crime scene, a vehicle movement report,
and various other documentary evidence, were, by agreement, admitted into
evidence at the trial. To the extent necessary, I will summarise the evidence of the
witnesses led at the trial and not repeat the evidence verbatim. Where necessary, I
will refer to the exhibits admitted during the trial.
[9] The State tendered the complainant's evidence as its first witness. At the
beginning of the trial on 8 November 2019, the complainant was unable to proceed
with her evidence in chief after taking the prescribed oath, as she was extremely
emotional. This led to a delay in the hearing of the matter. On 20 September 2021,
the complainant testified, and in summary, her evidence was that on the day of the
incident, 4 July 2018, at about 20h00, she was at her boyfriend’s house (which is a
incident, 4 July 2018, at about 20h00, she was at her boyfriend’s house (which is a
flat) in Vukeya Street in Greenfield Strand. At that time, she was about three weeks
pregnant. Suddenly, three police officers arrived at the flat looking for her boyfriend.
One of the police officers was the appellant. The complainant told them her boyfriend
was not at home . T he police officers asked her to open the door so they could
search the house. Indeed, she opened, and they searched the property, finding three
small plastic bags under the bed, but she did not know what they contained. They
informed her that the small plastic bags contained drugs.
[10] The policemen told her that they were taking her to the Police Station
because they had found the plastic bags in the house she occupied. The police
requested that she contact her boyfriend; however, he did not come to the residence,
stating he was occupied elsewhere. The three police men ordered the complainant
to go with them to the Police Station. She was stressed because she was afraid of
being arrested, particularly since she was pregnant. The three policemen drove
around with her, looking for her boyfriend, including at Mtata lodge.
[11] Subsequently, the appellant dropped the other two policemen at Lwandle
Police Station, who then went inside, and she remained with the appellant in the car.
As she was getting out of the car, they told her not to enter the Police Station
because they were not looking for her, but for her boyfriend. The appellant drove
with the complainant to a second Police Station which is located in Strand, where he
went inside, but she remained in the vehicle. On his return, the appellant drove back
to the “location”, and as he was driving, the complainant was crying. The appellant
asked the complainant why she was crying, and the complainant told him she was
afraid of being arrested.
[12] It was then that the appellant told the complainant that if she could help him,
he would, in return, help her too. When she asked him what he meant by that, he
replied that she was a grown -up and she knew what he meant. The appellant then
told her that when they were searching her house, he saw condoms, and if she could
kiss him, maybe something could happen. The complainant did not answer. The
appellant thereafter drove to the flat of the complainant’s boyfriend to fetch condoms.
appellant thereafter drove to the flat of the complainant’s boyfriend to fetch condoms.
Upon arrival at the f lat, the complainant waited in the car, believing that leaving it
would be breaking the law. The appellant went to the flat alone, came back with the
condoms, and drove to a place known as ASLA, a place where there are no houses,
which is next to the veld. The appellant stopped there and got out of the vehicle,
pulled down his pants, put on a condom and came to the front passenger side where
the complainant was sitting and raped the complainant despite her fervent
resistance.
[13] When he was done, the appellant took the condom off, tied it and threw it onto
the grass. Thereafter, the appellant took the complainant home, gave her the house
keys, and the money (R2300) he had taken during the earlier search. The
complainant immediately went to her neighbour, E[...] M[...], and informed her of
what had happened to her. The following day, the complainant and E[...] went to
report the case at Lwandle Police Station. However, they were ignored for hours and
not assisted. Pursuant to the police's indifference, the complainant and E[...] decided
to go to Strand Police Station, where Warrant Officer Enrico Everts enlisted the help
of Khayelitsha FCS to assist the complainant in laying a criminal charge against the
appellant. She laid the charge against the appellant and was subsequently taken to
the hospital, where a doctor examined her. Her medical examination report was
admitted as an exhibit during the trial and marked Exhibit E.
[14] During cross -examination, it was put to her by the appellant’s erstwhile
attorney (Mr Moffitt) that her boyfriend, a Nigerian, was selling drugs, and she
replied that she did not know. The complainant also testified in cross -examination
that from her boyfriend’s premises, the three police officers told her that they were
interested in her boyfriend. She testified during cross-examination that she took them
to several locations in an effort to show them where her boyfriend might be found .
When advocate Herman, who subsequently came on record for the appellant after
the withdrawal of Mr Moffitt, put to her that the reason the appellant returned to the
flat was to get his torch, which he used to search her room , she denied this. The
complainant also denied giving the appellant information about Nigerian drug
dealings.
[15] Sergeant Enrico Everts is stationed at Strand. He testified that the rape was
dealings.
[15] Sergeant Enrico Everts is stationed at Strand. He testified that the rape was
reported to him as the complainant informed him that she was at Lwandle Police
Station, but she was not assisted. Sergeant Everts contacted the Khayelitsha FCS to
assist the complainant in opening a criminal case against the appellant. Warrant
Officer Arries subsequently came and assisted the complainant in opening the case
against the appellant.
[16] E[...] M[...] testified that she is the complainant’s neighbour. She also lives in
the same building as the complainant. One has to pass through her flat to reach the
complainant’s flat. She was in her flat on the evening in question, and she saw
people passing her flat. She checked through the window to see who it was and
could not really see, but she saw that the complainant’s door was open. She saw
people passing again, and later she went to the complainant’s flat to ask what was
happening, but the complainant was not there. Later, the complainant came to her
crying. She asked her what was wrong, and the complainant told her that the police
were in her house. One of them drove around with her and eventually raped her.
[17] Constable Valentine testified that on the day in question, he was on duty with
appellant and Constable Masumpa, and they went to Vukayi Street to search a
house in Lwandle. Upon arrival, they found the complainant, who welcomed them
inside. They then searched the place and found 3 little packets containing traces of
tik. The complainant phoned her boyfriend to report to him that she was being
arrested. They tried to get further information from the complainant. They then
arrested the complainant and drove to the Police Station.
[18] On the way to the Police Station, they looked for the complainant’s boyfriend
but could not find him. They then drove back to the Police Station. On the way, the
appellant told them that the complainant informed him that she does not trust the
witness and Constable Masumpa and had information about the drugs. Constable
Valentine testified that upon arriving at the Police Station , he and Constable
Masumpa exited the vehicle. The appellant left with the complainant. The tik sachets
were not booked in SAP13, and nothing was entered in the SAPS books.
[19] The evidence of Constable Masumpa was in substance aligned to that of
Constable Valentine. In addition to the evidence of Constable Valentine, Constable
Constable Valentine. In addition to the evidence of Constable Valentine, Constable
Masumpa testified that the appellant found the sachets of tik on the complainant’s
premises and informed the complainant that she was under arrest, and explained her
rights. Constable Masumpa explained that the complainant was told to come with
them because she was arrested. Upon arriving at the Police Station , he and
Constable Valentine entered while the appellant left with the complainant.
[20] Eric Deysel, a consultant on the SAPS Automatic Vehicle Location, also
testified. The witness explained the tracking report of the vehicle that the appellant
and his two colleagues drove on the night in question. The vehicle's movement, as
explained by Mr Deysel, was consistent with the complainant's evidence, especially
in showing that the vehicle was stationary on a gravel road, in an open field near a
body of water, with the engine on. The tracking device report corroborated the
complainant’s version that the appellant returned to the complainant’s flat before the
vehicle went to the ASLA building, where the rape allegedly took place.
[21] Lieutenant Colonel Joseph Du Toit also testified. He is the Visible Policing
Commander at Somerset West. The appellant performed duties under his command.
Colonel Du Toit confirmed that the appellant and his colleagues were posted to do
crime prevention and were allocated the vehicle driven by the appellant. He
requested a tracking report of the vehicle used by the appellant. He gave the same
to the investigating officer, Mr Estree, who works for the Independent Police
Investigating Directorate (IPID). His report was handed in as Exhibit G in the trial
proceedings.
[22] The investigation officer, Jennica Estree, also testified. Mr Estree checked the
records at Lwandle Police Station . He found no record of the drugs seized by the
appellant and his colleagues . He also checked the SAP14 regist er and found no
arrest of the complainant reflected in it. He testified that the appellant exercised his
right to remain silent when he took his warning statement.
[23] The witness who collected the condom at the scene of the crime, Lieutenant
Kurt Abrahams, testified. He explained that he photographed the vehicle and
collected DNA from the interior door handles on the left side of the vehicle . Mr
Abraham collected the condom that he found at the scene of the crime two days
Abraham collected the condom that he found at the scene of the crime two days
after the incident . The condom was partially in the water. He sent it to the forensic
laboratory for analysis. When he collected the condom from the scene of the crime, it
was not tied. He took a swab from inside the condom and placed it in a sealed bag.
The photo album showing the condom, the crime scene, and the vehicle used by the
appellant was marked as Exhibit H.
[24] The last witness that the State called was a forensic analyst, Ms Blanche
November. Ms November testified that there was no possible semen in the condom;
however, there was a DNA profile which was from the skin cells that were on the
condom. The DNA found on the condom did not match the DNA of the appellant.
That was, in short, the State’s case.
[25] The appellant also testified. He admitted that he was on duty on the day of the
incident and was the senior driver of the vehicle on the night in question. The
appellant stated that he received a phone call from his informer that drugs had been
delivered at the address where the complainant was found. He explained that upon
receipt of that information, he went to th at flat together with his two colleagues,
Constable Valentine and Constable Masumpa and found the complainant in
pyjamas. The complainant permitted them to enter the house. The appellant asked
the complainant of her boyfriend’s whereabouts. The complainant informed him that
she was alone in the premises and that her boyfriend was not there. They told her
they were there to search the premises using the information they had received, and
the complainant permitted them to do so. His colleague, Constable Valentine, found
three sachets containing tik residue. According to him, Constable Valentine was
responsible for opening the case docket.
[26] It was then that the complainant started crying, and the appellant informed her
that they were not there for her but were looking for her boyfriend. The complainant
told them that she did not know where her boyfriend was. The complainant called her
boyfriend and asked him to come home; he stated he was on his way, but later
indicated he was not coming. According to him, during the search, he did not see
any condoms at the complainant’s premises. The appellant explained that the
complainant told them that she could show them the place where her boyfriend goes
complainant told them that she could show them the place where her boyfriend goes
to regularly. They subsequently went with her to look for the complainant’s boyfriend
at the Umtata Tavern in Lwandle, but did not find him.
[27] On the way from the Tavern, they spotted another Nigerian transporter of
drugs. They stopped that vehicle, and Constable Valentine and M asumpa got out of
the vehicle to search the transporter of drugs. The appellant stated that as he was
exiting the vehicle, the complainant expressed her desire to speak with him to
provide more information regarding their operations within the drug trade in the area .
Subsequent thereto, he went to drop Constable Valentine and Masumpa at Lwandle
Police Station. Then he drove to the Strand Police Station to check their system for
wanted persons, but it was offline. The complainant had waited in the car and was
crying.
[28] The appellant testified that he continued to drive around looking for the
complainant’s boyfriend when he realised he had left his torch at the complainant ’s
flat. Constable Valentine had called him about the torch, and he decided to drive to
the complainant's address to pick it up. According to him, he used the torch during
the search. He then went to the complainant’s flat alone and left the complainant in
the car. It took him about three to five minutes to fetch the torch from the
complainant’s flat and to return to the car. The appellant denied fetching condoms at
the complainant’s premises. The appellant asserted that the complainant was afraid
that her boyfriend might see them, so she asked him to drive to a quiet place.
[29] Pursuant thereto, he drove to Timber City in Somerset West. It is a gravel
road that runs out of Broadland Road. He parked there, and the complainant started
to open up to him about how her boyfriend operates with drugs. They stayed there
for about 15 to 20 minutes. The appellant testified that the information that the
complainant gave them led to their success in drug busting. The appellant denied
raping the complainant and asserted that he had been framed because most of his
arrests were of foreign nationals. He stated that he never touched the complainant.
The findings of the trial court
[30] After considering the conspectus of the evidence, the trial court made
favourable credibility findings regarding the evidence of the complainant, who was a
favourable credibility findings regarding the evidence of the complainant, who was a
single witness on the rape charge. The court found that the complainant provided a
detailed and clear account of the incident, which was largely corroborated by the
appellant regarding the rape, strengthening her case significantly. The court found it
had no reason not to accept the complainant’s evidence as reliable and credible. The
court also found that the complainant’s evidence was trustworthy and supported by
the first report, and that it was satisfactory beyond a reasonable doubt.
[31] To the contrary, the court found that the appellant’s version was riddled with
improbabilities and contradictions. The court observed that the appellant’s version
that it was not his responsibility to arrest the complainant did not make sense. In the
trial court’s view, this version makes no sense because the appellant was the senior
police officer at the scene. The court noted that the appellant’s modus operandi on
the night in question is questionable to say the least. His explanation that he took the
complainant to a deserted area to elicit information on drug dealing makes no sense
either. The court concluded that the appellant adapted his version as the evidence
against him unfolded. The trial court observed that the appellant used his position of
authority to take advantage of a young, scared complainant and forced her to have
sexual intercourse with h im without her consent. The court concluded that on the
totality of the evidence, the appellant’s version that he did not sexually abuse the
complainant was not reasonably possibly true.
Applicable legal principles
[32] It is settled law that in a matter such as the present, this court's powers to
interfere on appeal with the findings of fact of the trial court are limited in the
absence of demonstrable and material misdirection. Where there is no misdirection
on the facts, the presumption is that its findings are correct, and the appellate court
will only interfere with them if it is convinced that they are wrong. This principle was
restated in S v Jochems 1991(1) SACR (A) at 211 E-G as follows:
“It is a time-honoured principle that once a trial court has made credibility findings, an
“It is a time-honoured principle that once a trial court has made credibility findings, an
appeal court should be deferential and slow to interfere therewith unless is convinced
on a conspectus of the evidence that the trial court was clearly wrong. R v Dhlumayo
and Another 1948(2) SA 677 (A) at 706; S v Kebana [2010] 1 All SA 310 (SCA)
para12. As the saying goes, he was steeped in the atmosphere of the trial. Absent
any positive finding that he was wrong, this court is not at liberty to interfere with his
findings.”
[33] In Minister of Safety and Security & others v Craig & others NNO 2011 (1)
SACR 469 (SCA) para 58 , Navsa JA stated that although courts of appeal are slow
to disturb findings of credibility, they generally have greater liberty to do so where a
finding of fact does not essentially depend on the personal impression made by a
witness’ demeanour, but predominantly upon inferences and other facts and upon
probabilities. In such a case a court of appeal with the benefit of a full record may
often be in a better position to draw inferences.
Principal submissions by the parties
[34] Ms Safodien, who appeared for the appellant, submitted that heavy reliance
was placed on the complainant’s evidence despite the discrepancies and
contradictions in her evidence vis -à-vis her statement. Counsel argued that the
complainant’s evidence in court and her statement differed as to whether the
appellant pulled her pants and at what stage. Counsel argued that the complainant’s
statement does not mention that the appellant returned to the flat to fetch a condom.
Ms Safodien submitted that there are discrepancies in the state case, and that, as a
result, not much weight can be attached to the complainant’s evidence.
[35] Ms Safodien also asserted in her heads of argument that the magistrate failed
to give sufficient weight to these contradictions and, in addition, failed properly to
weigh the complainant’s evidence against that of the appellant and against the
probabilities. Counsel argued that the DNA evidence did not implicate the appellant.
Significantly, Ms Safodien pointed out that the complainant was a single witness. In
light of all the contradictions, the trial court erred in finding the complainant’s
evidence satisfactory in all material respects. According to Ms Safodien, the version
of the complainant cannot, on the totality of the evidence, be said to be reasonably
of the complainant cannot, on the totality of the evidence, be said to be reasonably
possibly true. On sentence, counsel argued that the court a quo was incorrect in
finding that no substantial and compelling circumstances existed to deviate from the
prescribed sentence. Counsel submitted that a deviation from the minimum sentence
was justified in this matter.
[36] On the other hand, Ms Galloway, the State’s counsel, argued that the court a
quo correctly weighed up the complainant’s case and found her to be a credible,
reliable, and honest witness. Ms Galloway conceded that the complainant was a
single witness. However, counsel submitted that the court a quo considered the
complainant’s testimony by applying the relevant cautionary rule and considered
aspects of the case that support the complainant’s evidence on the issue in dispute.
Ms Galloway argued that the trial court was correct in accepting the testimony of the
complainant and the State witnesses. Ms Galloway further submitted that, on the
probabilities of the matter, the trial court was correct in rejecting the appellant’s
submission as not reasonably possibly true.
[37] On sentence, counsel asserted that what aggravates the matter is that the
crime was carefully planned to the extent that the appellant created an opportunity to
commit the crime. Counsel pointed out that the appellant had ample opportunity to
reconsider his actions. Ms Gallaway submitted that the trial court was correct in
finding that there were no substantial and compelling circumstances and that the
sentence imposed is not shockingly inappropriate. She implored this court to dismiss
the appeal both on conviction and sentence.
Issues to be decided
[38] The issue for determination in this appeal is whether the appellant’s guilt was
established beyond a reasonable doubt, and if so, whether the sentence imposed by
the trial court is inappropriate and evokes a sense of shock.
Discussion
[39] Against this backdrop, I turn to evaluate the merits of this appeal on
conviction and sentence.
[40] It is well established in our law that the duty to prove an accused's guilt rests
fairly and squarely on the shoulders of th e State. The accused need not assist the
State in any way in discharging this onus. (S v Mathebula 1997 (1) SACR 10 (W)). In
assessing whether the State has discharged the onus of proving its case against the
accused beyond a reasonable doubt, it must consider all the evidence in concluding
whether to convict or acquit an accused. In other words, a court's conclusion must
account for all the evidence presented before it. (S v Van der Meyden 1999 (1)
SACR 447 (WLD) at 449h).
[41] The complainant was a single witness in this case. She was 19 years old at
the time the alleged offence was committed. As a single witness, the complainant’s
evidence had to either be: (a) substantially satisfactory in every material respect, or
(b) corroborated. ( Phogole v The State (370/2023) [2024] ZASCA 54 (9 May 2025))
para 77. Her evidence had to be approached with caution, particularly taking into
account the appellant’s version that the complainant was framing him to spite him
because he arrested Nigerian nationals who were dealing in drugs. In S v Webber
1971 (3) SA 754 (A) at 758F-H, the court held:
‘A conviction is possible on the evidence of a single witness. Such witness
must be credible, and the evidence should be approached with caution. Due
consideration should be given to factors which affirm, and factors which
detract from the creditability of the witnesses. The probative value of the
evidence of a single witness should also not be equated with that of several
witnesses.’
[42] Our courts have stressed the fact that it is not possible to prescribe a formula
in terms whereof every single witness' credibility can be determined, but it is
essential to approach the evidence of a single witness with caution and to weigh up
the good qualities of such a witness against all the factors which may diminish the
credibility of the witness. (see S v Sauls 1981 (3) SA 172 (A) at 180E-H).
[43] Section 208 of the CPA provides that an accused person may be convicted of
[43] Section 208 of the CPA provides that an accused person may be convicted of
any offence on the single evidence of any competent witness. As stated above , the
testimony of a single witness should be clear and satisfactory in all material aspects.
However, t he exercise of caution against such evidence must not be allowed to
displace the exercise of common-sense. (S v Artman and Another 1968 (3) SA 339
(SCA)).
[44] It is incontestable that the version of the complainant and that of the appellant
are diametrically opposed to each other . The trial court was faced with two mutually
destructive versions of two sin gle witnesses based on the evidence of the
complainant and the appellant. Both versions cannot be true. Consequently, the
other must be false. Only one can be true. In S v Kotze (776/16) [2017] ZASCA 27
(27 March 2017) para 17, the court stated as follows regarding mutually destructive
versions:
‘In order to determine the objective truth of the one version and the falsity of the
other, it is important to consider not only the credibility of the witnesses, but also the
reliability of such witnesses. Evidence that is reliable should be weighed against the
evidence that is found to be false and in the process measured against the
probabilities. In the final analysis the court must determine whether the State has
mustered the requisite threshold proof beyond reasonable doubt.’
[45] It is common cause that the appellant and the complainant were in the police
vehicle on the night in question. The complainant asserted that the appellant raped
her on the night in question. The appellant, on the other hand, denied that he raped
the complainant and, in fact, asserted that nothing happened between them.
According to the appellant, the complainant opened up to him and advised him of
how drugs are sold in the area. The trial court rejected this version as false and
found that the State proved its case beyond a reasonable doubt. For the reasons
that follow, I am of the view that the findings of the trial court are correct and
unimpeachable.
[46] It is important to emphasise that the complainant’s evidence must not be
assessed in isolation. It must be assessed together with the evidence of the
appellant and the other State witnesses. The appellant’s evidence largely
appellant and the other State witnesses. The appellant’s evidence largely
corroborates the complainant’s version. The complainant’s version was that the
appellant dropped his colleagues at the Lwandle Police Station and drove with her
looking for her boyfriend, and subsequently raped her in a secluded place situated in
Somerset West Timbers. In addition, the complainant testified that the appellant
informed her that he saw condoms at her flat when they were searching. Pursuant
thereto, the appellant drove to the complainant’s premises, fetched the condoms and
drove with the complainant to a secluded place where he raped her.
[47] From the totality of the evidence, it is not in dispute that the appellant was
together with the complainant during the course of the night after he dropped his
colleagues at the Lwandle Police Station . It is common cause that the appellant
drove around with her and eventually went to a secluded place . According to the
complainant, the appellant raped her in a police vehicle at that remote and isolated
place. As the trial court noted, the pertinent question was whether the truth had been
told in this matter. As articulated above, the complainant was able to clearly recall
the incident, which the appellant to a greater extent corroborated, but for the rape.
[48] There were no material contradictions in the complainant’s evidence and that
of the first report. Essentially, the first report (Ms M[...]) corroborated the
complainant’s version in all material respects about the reporting of the incident and
the state of mind in which the complainant was when reporting the incident to her.
She stated that the complainant was crying and distressed when she opened the
door for her. Significantly, this was on the night in question, immediately after the
incident. There is nothing of substance to reject the first report’s testimony. In my
view, the court a quo ’s finding that the first report’s evidence was unimpeachable
cannot be faulted.
[49] It must be borne in mind that the alleged incident happened in July 2018. The
complainant only testified in September 2021. Despite the passage of time since the
incident, the complainant’s evidence was clear and consistent. Although the
complainant is a single witness, her evidence was corroborated by the appellant and
complainant is a single witness, her evidence was corroborated by the appellant and
the first report’s evidence. It was also corroborated by the tracking report. The
appellant's version of events from the arrest of the complainant and their movement
until they stopped at the secluded place in the veld is consistent with that of the
complainant. The only difference between the two versions is on the alleged raped.
Accordingly, there was no reason not to accept the complainant’s version and that of
the first report, as their evidence was reliable and credible. As it will be demonstrated
hereunder, the finding of the court a quo in this regard is unassailable.
[50] The appellant's version, on the other hand, was riddled with improbabilities
and contradictions. Crucially, the appellant adapted his version as the trial unfolded .
The following fortifies this conclusion: During the proceedings and throughout the
testimony of the complainant and the two police officers who were together with the
appellant on the night in question, the appellant disputed that he returned to the
complainant’s premises to fetch condoms. In substance, the appellant denied that he
went back to the complainant’s house to fetch condoms as alleged by the
complainant after he dropped his colleagues at the Police Station. It was never put to
the complainant that the appellant returned to the complainant’s flat to collect his
torch.
[51] The appellant adapted his version after the SAPS Automatic Vehicle Location
Project consultant explained the vehicle's movement (tracking report) from the
tracking system on the night in question. The witness explained that the vehicle went
back to the complainant’s flat from Lwandle Police Station . This evidence
corroborated the complainant’s version materially in that the appellant went to her
flat to fetch condoms. At this point, the appellant realised that the tracking system
completely negated his version, namely that he did not go to the complainant’s flat.
Faced with the reality, the appellant resorted to adapting his version to cover the gap
and asserted that he returned to the complainant's place for the second time to fetch
his torch, which he had forgotten at the house when the search was conducted.
[52] This version was a sheer fabrication. The following facts bear out this
conclusion: The complainant’s version was that when the appellant raped her, he
used a condom which the appellant fetched from the complainant’s flat . The use of
used a condom which the appellant fetched from the complainant’s flat . The use of
the condom was central to the complainant’s version. As foreshadowed above,
during cross-examination of the complainant, Mr Moffitt denied in the presence of the
appellant that the appellant returned to the complainant’s flat to fetch condom s.
Importantly, the denial was not qualified. It was never put to the complainant that the
appellant returned to the complainant’s flat to look for his torch, which he allegedly
forgot at the premises while searching the place with his colleagues. The issue of a
torch was fabricated after the tracking report detailing the movement of the
appellant’s vehicle on the night in question was explained in court.
[53] To cover up the gap, the appellant postulated that he went back to the flat to
fetch a torch. This necessitated recalling the complainant after the testimony of five
witnesses so that the new version of the appellant could be put to her. The
complainant refuted this version and clung to her version that the appellant returned
to the flat to fetch condoms, which he used when he raped her. She stated that the
three policemen did not use a torch that night during the search, as her room was
well lit by electric light.
[54] What compounds the difficulty in the appellant’s version is his testimony that
he went to look for the torch after receiving a call from Constable Valentine. He
testified that the reason Constable Valentine called him to look for the torch was that
the area where Constable Valentine was taking fingerprints in the charge office had
no lighting. As a result, Constable Valentine contacted him directly to request the
torch. Notably, Constable Valentine testified before the evidence on the movement of
the vehicle could be presented . Surprisingly, when Constable Valentine testified, it
was not put to him that he called the appellant looking for the torch. This was central
to the appellant's version.
[55] If indeed it happened, it would have corroborated the appellant’s version. It is
my firm view that the version of the torch was an afterthought, fabricated only after
the tracker witness testified about the vehicle's movement. Unfortunately for the
appellant, this witness was called long after his colleagues, particularly Constable
Valentine, had testified. The appellant had no option but to adapt his version and
denounce his denial of not returning to the complainant’s flat. Moreover, I find it
highly improbable that Constable Valentine, who was at the Police Station with all
highly improbable that Constable Valentine, who was at the Police Station with all
the resources available to the police, would call the appellant looking for a torch that
could be readily obtained there. This version is implausible and makes no sense; the
court below was correct to reject it as false.
[56] I am mindful that the appellant need not prove his innocence in a criminal trial
and that the State remains with the onus of proving his guilt beyond a reasonable
doubt. However, in this case, the appellant’s version is false beyond a reasonable
doubt. He was a senior police officer, and the other two police officers were his
juniors. They seized drugs at the complainant’s house and drove around with her
during the course of the night, and failed to book those drugs in the SAP13.
According to Constable Masumpa, the appellant told the complainant that she was
under arrest as she was found in possession of drugs . Her constitutional rights were
explained to her. Surprisingly, nothing was recorded in the SAP14 nor in the
occurrence book (SAP10) that the complainant was arrested. It is also not known
what happened to the drugs that were seized at the complainant’s premises, as the
said drugs were not booked in the SAP13. Nothing was recorded in the police source
documents regarding the arrest or questioning of the complainant. However, what is
evident is that after the complainant was molested, the appellant released her.
[57] It is noteworthy that, despite holding a senior position relative to his juniors,
the appellant maintained that it was not his responsibility to arrest the complainant,
despite the drugs found in her possession. As the trial court found, the appellant’s
modus operandi on the night in question is highly questionable, to say the least. His
explanation that he took the complainant to a deserted area to elicit information on
drug dealing does not make sense at all . In my view, the trial court rightly rejected
this version and it should be dismissed entirely by this court . The Police Station is a
quiet place to conduct interviews. It is highly improbable that a seasoned male police
sergeant would choose to conduct an interview with a young female suspect or
informant in the middle of the night, deep in the veld, inside a vehicle. On the
appellant’s own version, one would have expected such serious and sensitive
discussions to take place within the safe, controlled environment of the Police
discussions to take place within the safe, controlled environment of the Police
Station offices, where privacy and dignity can be maintained.
[58] If, as the appellant claims, he went to the deserted area because the
complainant was afraid that her boyfriend would see her with him, it would make
more sense for him to take her to the Police Station for questioning in a secure,
private environment. Importantly, at that stage, the boyfriend knew that the police
had searched the flat and had arrested the complainant. So, seeing her with the
appellant would not have been odd. Further, the appellant (together with the
complainant) returned to the boyfr iend’s flat not knowing whether he had since also
returned; and they were, earlier that night, actively searching for the boyfriend with
the complainant in the vehicle. The appellant's argument in this respect is lacking in
substance and was justifiably dismissed by the trial court . The appellant had an
opportunity to interview the complainant at Lwandle Police Station when he dropped
off his two colleagues. The appellant also had a second opportunity to interview the
complainant at Strand Police Station but chose not to. Instead, he chose to go with
the complainant into a secluded place where his deeds could not be seen.
[59] The appellant could not reasonabl y explain why he could not interview the
complainant at the Police Station, but instead chose to interview her in the veld in the
middle of the night. The evidence presented clearly indicates that the appellant had a
disturbing intention to sexually assault the complainant. It seems to me that he
carefully devised a plan, intending to exchange sexual favours for the complainant's
release from arrest. This behaviour is deeply troubling.
[60] Ms Safodien argued that the court a quo was faced with two conflicting
versions and that there are no objective facts to support either. Moreover, the
medical evidence is neutral and consistent with either version, and the DNA
evidence did not implicate the appellant. This argument, in my view, cannot be
correct. It must be stressed that, in coming to a decision, the court must consider the
totality of the evidence before it and not adopt a piecemeal approach. Nugent J, as
he then was, in S v Van der Meyden 1999 (1) SACR 447 (W) at 448 – 450 stated:
'A court does not look at the evidence implicating the accused in isolation in order to
determine whether there is proof beyond reasonable doubt, and so too does it not
look at the exculpatory evidence in isolation to determine whether it is reasonably
possible that it might be true. A court does not base its conclusion, whether it be to
possible that it might be true. A court does not base its conclusion, whether it be to
convict or to acquit, on only part of the evidence …What must be borne in mind,
however, is that the conclusion which is reached (whether it be to convict or to
acquit) must account for all the evidence. Some of the evidence might be found to be
false; some of it might be found to be unreliable; and some of it might be found to be
only possibly false or unreliable; but none of it may simply be ignored.'
[61] In my opinion, the totality of the evidence prove d the guilt of the appellant
beyond a reasonable doubt. The fact that the DNA results d id not implicate the
appellant is neither here nor there. The DNA evidence is not the sole factor in
establishing the appellant's guilt. It is one piece of the overall puzzle that the trial
court needed to evaluate in order to determine whether the prosecution had proven
the accused's guilt beyond a reasonable doubt. Importantly, the complainant stated
that the appellant used a yellow condom when raping her. After he was done, he tied
it and discarded it in the grass area where the vehicle was parked. She was not
there at the scene when the condom was collected. She did not point out the
condom that members of IPID collected from the scene as the condom that was
used by the accused.
[62] Significantly, the condom that was uplifted from the scene was not tied. The
complainant did not see the police officers when they collected the condom from the
scene. According to her evidence, she only pointed a condom wrapper to the police.
During the court proceedings, when the photo album (Exhibit H) was presented,
which displayed the condom allegedly collected from the scene by IPID members,
she maintained that the condom used by the appellant was tied, while the one shown
in the exhibit was not tied. The trial court found that this evidence holds considerable
importance as it addresses the question of whether the condom discovered by
Warrant Officer Abrahams two days after the alleged incident is, in fact, the same
condom that the complainant asserts was used by the appellant during the
commission of the offence.
[63] The police officer who collected the condom testified that when he picked it
up, it was not tied. From the evidence of the complainant, it is abundantly clear that
the condom that was found at the scene and booked as an exhibit in this matter was
not the condom that the appellant used. It was not tied. It was open and empty
not the condom that the appellant used. It was not tied. It was open and empty
inside. The suggestion that the absence of the appellant’s DNA in the condom found
at the crime scene definitively proves the appellant's innocence ignores the objective
facts and the compelling evidence the complainant presented.
[64] Finally, the appellant's counsel contended that there is excessive reliance on
the complainant's testimony, despite significant inconsistencies and contradictions
between her evidence in court and the statement she gave to the police. It was
pointed out that these discrepancies pertain specifically to her assertions regarding
whether the appellant pulled down her pants and the timing of that action .
Furthermore, it was stated that the complainant’s statement does not mention that
the appellant returned to the flat to fetch a condom. It was submitted that there were
discrepancies between the complainant's statement and his evidence in court;
accordingly, little weight should be placed on the complainant's evidence.
[65] In S v Mafaladiso en Andere , 2003 (1) SACR 583 (SCA) at 593E - 594H, the
SCA set out the approach to be adopted in cases where there is a contradiction
between the police statement of a witness and the evidence of such a witness or
where there is no reference in a police statement to what can be an essential aspect
of that witness's testimony. Among other things, the court noted that mere self -
contradictions must be approached with caution by a court. Importantly, the court
noted that it must be kept in mind that not every error by a witness and not every
contradiction or deviation affects the credibility of a witness. Thus, the contradictory
versions must be considered and evaluated holistically. The court must weigh the
previous statement against the viva voce evidence, consider all the evidence, and
decide whether it is reliable and whether the truth has been told despite any
shortcomings.
[66] In the present matter, the complainant has given a plausible explanation of
the differences. She stated that when she gave the statement, there was no
interpreter. Instead, the first report served as an interpreter when her statement was
taken. The complainant also stated that her evidence in court is exactly what she told
the officer who was taking the statement. In my opinion, the differences between her
statement and her evidence in court are minimal and immaterial and must be viewed
from that perspective.
from that perspective.
[67] In any event, I share the views expressed in Johnson v The Road Accident
Fund [2000] JOL 7375 (C) at 5, where the court observed that the real test of truth
does not lie in a comparison between what the witness is alleged to have told
someone else and what he now tells the court. What a witness alleged to have told
someone else leaves room for mis -statements, misunderstandings and
misconstructions. A statement, however carefully drafted, can never be as reliable as
listening to the ipsissima verba of the witness herself. The best test of the accuracy
and truth of what a witness says lies in an independent assessment of his actually
spoken words. It lies in the court’s ability to listen to his words and to observe his
demeanour.
[68] On a conspectus of all the facts, I am of the firm view that the appellant's
version was implausible, and the court a quo was correct in rejecting it as false.
Ad sentence
[69] As far as the appeal on the sentence is concerned, it is trite law that
sentencing is pre-eminently a matter of the trial court's discretion. Interference with a
sentence on appeal is not justified in the absence of a material misdirection or
irregularity, or unless the sentence imposed is so startlingly inappropriate as to
create a sense of shock. (S v Moosajee [1999] 2 All SA 353 (A), para 8 ). Thus, an
appeal court will only interfere with a sentence on appeal if it appears that the trial
court has exercised its discretion improperly or unreasonably. (S v Gerber [1998] 4
All SA 315 (NC)).
[70] In the present matter, the enquiry is whether the court a quo in imposing the
sentence of 10 years imprisonment had exercised its discretion judicially and
properly. It was argued on behalf of the appellant that the trial court failed to consider
the personal circumstances of the appellant properly and erred by failing to find
substantial and compelling circumstances to deviate from the prescribed sentence.
[71] The personal circumstances of the appellant were succinctly set out during
the address in mitigation of sentence by his legal representative and on the
Probation Officer’s report . The appellant was 44 years old, married, and had five
children from different relationships, two of whom were minors. The appellant is not
the children's primary caregiver. The appellant was unemployed. He had a previous
conviction for reckless and negligent driving. At the time of sentencing, the appellant
conviction for reckless and negligent driving. At the time of sentencing, the appellant
had a 4 -year-old daughter and a 4 -month-old infant. It was submitted to the court a
quo that these children are entirely dependent on the appellant and require stability
and support during the most crucial developmental stages of their lives. It was
argued that a sentence of 10 years' imprisonment would have a negative impact on
the children. It was also submitted that the appellant was a member of the SAPS for
14 years, demonstrating a significant period of adherence to societal rules,
discipline, and public service.
[72] It must be emphasised that rape is a repulsive crime. As stated in S v Vilakazi
2009 (1) SACR 552 (SCA) para 1 , rape is “an invasion of the most private and
intimate zone of a woman and strikes at the core of her personhood and dignity. ”
Section 12(1)(c) of the Constitution guarantees everyone the right to freedom and
security which includes the right to be free from all forms of violence from either
public or private sources . Section 51(3) of the C LAA demands the imposition of the
prescribed minimum sentences for a conviction of rape unless a court is satisfied in a
particular case that there are substantial and compelling circumstances that justify
the imposition of a lesser sentence.
[73] In the present matter, I am mindful of the accused's personal circumstances.
However, I hold the view that the sentence imposed by the trial court is beyond
reproach. The appellant was in a position of trust. He was entrusted with the sacred
duty to protect the complainant and members of the public, particularly the most
vulnerable of society . Instead, the appellant breached that trust in an egregious
manner. The appellant abused and betrayed the trust that the public and the
complainant had in him as a member of SAPS.
[74] Incontestably, the appellant, as a sergeant in the police services, has dealt
with several rape cases and has observed how rape negatively impacts the
psychological being of a rape victim. Notwithstanding, he abused his position and
took advantage of the complainant's vulnerability. Concernedly, the complainant was
relatively young. No victim impact statement was presented during the trial.
However, it must be accepted that no woman would be left unscathed by sexual
However, it must be accepted that no woman would be left unscathed by sexual
assault. The complainant in this matter was indeed traumatised. Her trauma was
exacerbated by the Lwandle Police Station 's charge office refusing to open a docket
when she attempted to lay a charge. This response is deeply disturbing, to say the
least.
[75] Of great s ignificance is that the incident has had profound psychological
repercussions for the complainant. On the first day of the trial which was over a year
after the rape occurred, she became visibly emotional while beginning her testimony,
which necessitated the postponement of the proceedings.
[76] In S v Vilakazi (supra) para 58, the SCA held that in cases of serious crime,
the personal circumstances of the offender, by themselves, will necessarily recede
into the background. The court held that once it becomes clear that the crime is
deserving of a substantial period of imprisonment, the questions whether the
accused is married or single, whether he has two children or three, whether or not he
is in employment, are in themselves largely immaterial to what that period should be,
and those seem to be the kind of ‘flimsy’ grounds that S v Malgas 2001 (1) SACR
469 (SCA) said should be avoided.
[77] Upon conviction on this count, the court a quo was bound to impose the
prescribed sentence unless there were substantial and compelling circumstances
warranting a deviation from it. There was none. To the contrary, there are serious
aggravating factors that militate against deviating from the prescribed minimum
sentence. There are no compelling reasons to disturb the trial court's well -reasoned
judgment.
[78] In the final analysis, given all these considerations, I am of the view that the
appeal on both conviction and sentence must be dismissed.
Order
[79] In the result, the following order is granted.
79.1 The appeal on both conviction and sentence is hereby dismissed.
________________________
LEKHULENI JD
JUDGE OF THE HIGH
COURT
I agree:
_______________________________
TOEFY
A
ACTING JUDGE OF THE HIGH
COURT
APPEARANCES
For the Appellant: Ms Safodien
Instructed by: Legal Aid South Africa
For the Respondent (State): Ms Galloway
Instructed by: Director of Public Prosecutions