IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: A70/2026
Case number (Regional Court): PRO 84/2018
BAREND BOOYSEN Appellant
and
THE STATE Respondent
Coram: Slingers, J et Van Zyl, AJ
Heard on: 29 May 2026
Judgment: 29 May 2026
Summary: Appellant convicted in the regional court on two counts of rape – appeal
against conviction – proof beyond a reasonable doubt – not required that guilt
proved beyond all reasonable doubt – evidence of single witness – necessary
caution applied, and evidence corroborated in material respects – contradictory
versions – evidence considered holistically - no misdirection on part of regional court
– appeal dismissed
___________________________________________________________________
ORDER
The appeal is dismissed.
JUDGMENT
VAN ZYL, AJ:
Introduction
1. On 3 February 2021 , in the Paarl Regional Court , the appellant pleaded not
guilty to two counts of rape in contravention of section 3 of the Sexual
Offences and Related Matters Amendment Act 32 of 2007. The provisions of
section 51(2) of the Criminal Law Amendment Act 105 of 1997 were
applicable in that the charges fell within the ambit of Part III 1 of Schedule 2 of
that Act. 2 The prescribed minimum sentence in respect of each count was
thus 10 years' direct imprisonment for first offenders such as the appellant .
The appellant had legal representation throughout the trial.
2. On 30 January 2023 the appellant was convicted as charged , and on 25 May
2023 he was sentenced to 10 years' direct imprisonment in respect of each
count. The sentences are running concurrently , and he is currently in
custody.
3. This appeal is against the appellant’s conviction. Leave to appeal was
refused by the regional court, but granted on petition3 to this court.
This Court’s approach on appeal against conviction
4. It is trite that a court of appeal’s powers to interfere with the findings of a trial
1 With reference to “rape or compelled rape”.
2 “51(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court
or a High Court shall sentence a person who has been convicted of an offence referred to in-
…. (b) Part III of Schedule 2, in the case of- (i) a first offender, to imprisonment for a period
not less than 10 years”.
3 Under case number P92/2025 on 26 January 2026.
court are limited to cases where there was a material misdirection by the trial
court on findings of fact, and where the recorded evidence shows such
findings to be clearly wrong. The reason for this is obvious: the trial court has
the advantage of seeing, hearing, and appraising witnesses. A court of
appeal would therefore only interfere with the trial court's evaluation of oral
evidence in exceptional circumstances.4
5. One must keep in mind that there is no such thing as a perfect judgment.
Merely because a certain aspect is not mentioned in a judgment does not
necessarily mean that it was not considered. In Director of Public
Prosecutions: Limpopo v Molope and another 5 the SCA held that its “ function
is not to seek to discover reasons adverse to the conclusions of the trial
judge.... It is true that no judgment is perfect and all embracing, but it does
not necessarily follow that, because certain aspects were not mentioned in
the judgment, they were not considered.”
6. The appellant's main submission in the present case is that the State failed to
discharged the onus of proving beyond a reasonable doubt that the appellant
had raped the complainant. In particular, the regional court evaluated the
evidence in a piecemeal fashion, highlighted a few unsatisfactory aspects in
the appellant's evidence which was not of such a serious nature that it
materially affected his credibility, and did not exercise proper caution in
considering the complainant’s evidence.
7. The onus is on the State to prove its case beyond a reasonable doubt , and
not above all reasonable doubt. 6 In S v Chabalala 7 the Supreme Court of
Appeal (SCA) formulated the principles for evaluating the evidence of the
State and the accused in criminal trials as follows:
"The trial court's approach to the case was, however, holistic and in this it was
undoubtedly right: S v Van Aswegen 2001 (2) SACR 97 (SCA). The correct
4 S v Monyane and others 2008 (1) SACR 543 (SCA) para 15.
4 S v Monyane and others 2008 (1) SACR 543 (SCA) para 15.
5 2020 (2) SACR 343 (SCA) para 55, confirming R v Dhlumayo 1948 (2) SA 677 (A) at 706.
6 S v Phallo and others 1999 (2) SACR 558 (SCA) paras 10-11.
7 2003 (1) SACR 134 (SCA) para 15. Emphasis supplied.
approach is to weigh up all the elements which points towards the guilt of the
accused against all those which are indicative of his innocence, taking proper
account of the inherent strengths and weaknesses, probabilities and improbabilities
on both sides and, having done so, to decide whether the balance weighs so heavily
in favour of the State as to exclude any reasonable doubt about the accused's guilt.”
8. In S v Van der Meyden8 the court held:
“A court does not base its conclusion, whether it be to convict or to acquit, on only
part of the evidence …. The proper test is that the accused is bound to be convicted
if the evidence established his guilt beyond reasonable doubt, and the logical
corollary is that he must be acquitted if it is reasonably possible that he might be
innocent. The process of reasoning which is appropriate to the application of that
test in any particular case will depend on the nature of the evidence which the court
has before it. 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
unreliable; some of it might be found to be possibly false or unreliable; but none may
simply be ignored.”
9. Proof beyond reasonable doubt must thus be determined by assessing all
probabilities and improbabilities, not only in the evidence of the State, but
also in the evidence of the accused:9
"But whilst it is entirely permissible for a court to test an accused's evidence against
the probabilities, it is improper to determine his or her guilt on a balance of
probabilities. The standard of proof remains proof beyond reasonable doubt, i.e.
evidence with such a high degree of probability that the ordinary reasonable man,
after mature consideration comes to the conclusion that there exists no reasonable
doubt that an accused has committed the crime charged . An accused's evidence
doubt that an accused has committed the crime charged . An accused's evidence
therefore can be rejected on the basis of probabilities only if found to be so
improbable that it cannot be reasonably possibly true ...”
10. There is no obligation on the State to close every avenue of escape for the
8 1999 (1) SACR 447 (W) at 449I-450B. Emphasis supplied.
9 Monageng v S [2009] 1 All SA 237 (SCA) paras 13-14. Emphasis supplied.
accused. The State’s evidence must, however, be of such a degree that upon
mature consideration a reasonable person would have no doubt that the
accused committed the offence. In evaluating the evidence, a court must
adopt a holistic approach and consider and evaluate all the evidence as
presented.10 The accused does not bear any onus.11
11. It is against this background that the appellant’s case is considered.
The relevant evidence
12. The evidence presented was, briefly, as follows.
13. The complainant testified that she was employed on the farm Heksberg in
Wellington. S he had worked with the appellant but did not know him very
well. On Friday, 2 March 2018 , she accompanied her cousin to Hermanus
after acquiring the services of the appellant who was a driver on the farm.
The appellant's phone number had been obtained from another person at the
instance of her cousin. The complainant did not want to go with, but relented
upon her cousin’s insistence.
14. The complainant initially seated herself a t the back of the vehicle, but her
cousin insisted that she move to the front passenger seat. After they had
dropped her cousin in Hermanus, the complainant and the appellant drove
back to the farm. When they reached the Franschhoek Pass the appellant
stopped the vehicle at a big rock, climbed over to the complainant’s seat, and
positioned himself behind her. With his one hand he grabbed the back of her
neck and forced it towards the driver's seat. The other hand he used to pull
down her tracksuit pants and underwear. Thereafter he held both her hands
behind her back and penetrated her vagina with his penis while he was
behind her. During the incident she was crying, screaming , and resisting. The
appellant did not use a condom and the complainant did not know whether he
ejaculated. Afterwards, he told her not to tell anyone , and climbed back to his
10 R v Mlambo [1957] 4 All SA 326 (A) at 337.
11 See S v V 2001 (1) SACR 453 (SCA) para 3.
seat. She pulled her pants up and remained quiet for the remainder of the
drive back. Her private parts were sore.
15. The complainant testified that when they reached Vlakkeland near
Wellington, the appellant again pulled the car over and stopped under trees.
The area was dark . The climbed over to the complainant’s seat and again
raped her in the same manner as earlier that evening. This time he ejaculated
over her. He then took her home.
16. On the Saturday morning the complainant made a report to her friend, Ms
Johanna Pietersen, that the appellant raped her twice. The complainant went
to the police station and reported the rapes. Sergeant Readien requested her
to point out the two scenes, which she did.
17. Ms Pietersen testified that the complainant approached her on the Saturday,
wanting to tell her something. The complainant did not look her normal self ,
and Ms Pietersen suggested that they go to her house as they were not
alone. At her house the complainant told her that , on the way back, the
appellant had touched her private parts, but that she had pushed his hand
away. He then raped her, first at the Franschhoek Pass, and against at the
bushy area called Vlakkeland. According to her, the appellant told the
complainant that if she did not want to have sex with him, she should get out
his vehicle.
18. When this statement by Ms Pietersen was put to the complainant in cross -
examination, she confirmed that the appellant had told her to “” f...-off” out of
his car. She did not do so, because it was dark, and she was too scared to
walk alone: “ Dit was donker toe kon ek nie loop nie. Ek is bang hulle maak
my seer langs die pad”.
19. Ms Pietersen testified that during the report the complainant was nervous,
fiddled with her hands, and vomited. She testified further that the complainant
had marks (looking like “love bites”) on her neck , and told her that the
appellant had choked her.
20. Sergeant Readien testified that she was a sergeant in the FCS Unit of the
police and that she was tasked with accompanying the complainant to do
pointings-out. The complainant was traumatised , and cried a lot. 12 She
complainant pointed out a big rock at the Franschhoek Pass where she said
the appellant had stopped and raped her. They proceeded to Stokkiesdraai
on the Old Paarl Road, but the complainant could not recall the exact place
where she was raped again.
21. The appellant testified in his own defence, and did not call any other
witnesses. He denied raping the complainant, stating that they had
consensual sex. He testified that, after dropping the complainant’s cousin in
Hermanus, they bought beers in Caledon and stopped at the Franschhoek
Pass to drink the beer. While they were talking he asked the complainant if
she would have sex with him. T here had been previous occasions on the
farm when he had made advances towards her, but she would always
jokingly rebuff hi m: “ We used to have a good understanding ”. He therefore
did not think it inappropriate to ask for sex while they were drinking.
22. He testified that t he complainant stated that it would not be appropriate to
have sex near a cross on the Pass (the cross marked a collision spot), and
they accordingly drove on, looking for another place. The appellant testified
that they first drove to Drommedaris, where a colleague resided. They tried to
wake him up to chat, but he was too drunk. They then went to the
complainant’s nephew who also stayed in Drommedaris, to fetch some of the
complainant’s clothes that were there . They later came to a place called
Newton where they finished the beers. He went to her side of the car. S he
opened the door and he proceeded to flatten her seat. Thereafter she lifted
her lower body to enable him to take her pants and underwear off. He took
his clothes off and inserted his penis into her vagina. She did not stop him
his clothes off and inserted his penis into her vagina. She did not stop him
and laid still while he was having sexual intercourse with her.
12 “Baie getraumatiseer en baie hartseer. Sy het baie gehuil. Ek het baie gesukkel met haar”.
23. After a few minutes she started screaming and told him to take his penis out
because he was hurting her. He stopped and asked her what was wrong. She
told him that he was hurting her , and insisted that he get off her. When he
asked why she screamed, she did not reply but insisted that he take her
home. The drive was silent and he felt awkward , because she did not speak
and did not look at him , but instead stared out of the window : “ On the way
back, I was still talking to her, but she was not answering back … I did feel a
bit strange, because I did not know what was going on now with this woman”.
24. When the complainant left the appellant’s car on their arrival back at the farm,
she “just banged the car’s door and then she left”.
25. The J88 medical report was admitted by consent. It indicates, that the
relevant history given by the complainant was that she had been raped
vaginally by a man known to her on 2 March 2018. She was raped twice and
no condom was used. There was no clinical evidence of drugs or alcohol in
her system. The doctor’s clinical findings w ere that there were no injuries
noted except a bruise on her right thi gh, and there were no vulvar injuries
noted.
26. The appellant was of the view that the complainant accused him of rape
because she was scared that her aunts and grandmother, with whom she
resided, would be angry at her for coming home late at night.
Evaluation of the evidence
27. Section 208 of the Criminal Procedure Act 51 of 1977 (CPA) provides that a
conviction can follow on the evidence of a single witness provided that the
evidence is clear and satisfactory in every material aspect.
28. In the present matter the complainant was a single witness in relation to the
rapes. Her evidence was, however, corroborated to a large extent by the
other facts placed before the regional court. In S v Sauls and others 13 it was
held that:
“There is no rule of thumb test or formula to apply when it comes to a consideration
of the credibility of a single witness. 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 … It has
been said more than once that the exercise of caution must not be allowed to
displace the exercise of common sense.”
29. I do not agree with the appellant’s criticism of the regional court’s judgment.
The court was correct in finding that the complainant's evidence was clear,
detailed, and consistent , and duly took her status as single witness into
account. She explained how both rapes took place , and maintained her
version during extensive cross -examination. Such contradictions as there
were w ould be expected in the course of the narrative, and were not in
relation to the material parts of her evidence. There was nothing – apart from
the appellant’s speculation - to indicate that the complainant was falsely
implicating the appellant . They were colleagues on the farm and the
complainant had been in a lift club with the appellant for a few months before
the incident.
30. The complainant’s evidence was moreover largely corroborated by Ms
Pietersen, who testified that the complainant had informed her about the
ordeal the next day . H er evidence in respect of the crux of the report
corresponded with the complainant's version of events. Sgt Readien
confirmed that the complainant showed her the two scenes where the
appellant had raped her. Both Sgt Readien and Ms Pietersen remarked on
the complainant’s traumatised state.
31. As I have indicated earlier in this judgment, where a conviction is based on
31. As I have indicated earlier in this judgment, where a conviction is based on
credibility findings, a court of appeal who did not have the benefit of
13 1981 (3) SA 172 (A) at 180F-H.
observing the witnesses and listening to their testimony, will be reluctant to
interfere in the credibility findings of the court a quo.14
32. In the present matter, the regional court carefully weighed and considered the
evidence at its disposal, including the contradictions upon which the appellant
relies. When considering contradictory versions or contradictory parts of the
oral evidence of witnesses, a holistic evaluation is required. This is what the
regional court did. It recognized that "..... not every error made by the witness
affects his credibility; in each case the trier of facts has to make an
evaluation; taking into account such matters as the nature of the
contradictions, their number and importance and their bearing on the other
parts of the witness's evidence".15
33. S v Mafaladiso en andere 16 is also instructive in this respect. The relevant
extract, translated from the original Afrikaans, reads as follows:
"The judicial approach to contradictions between two witnesses and contradictions
between the versions of the same witness (such inter alia, between her or his viva
voce evidence and previous statement) is in principle (even if not in degree),
identical. Indeed in neither case is the aim to prove which of the versions is correct,
but to satisfy oneself that the witness could err, either because of defective
recollection or by dishonesty. …
The mere fact that there are self -contradictions must be approach with caution by
the court. Firstly, it must be carefully determined whether there is an actual
contradiction and what the precise nature thereof is. ... Secondly , 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. Non -material deviations are not necessarily
relevant…. Thirdly, the contradictory versions must be considered on a holistic basis.
The circumstances under which the versions were made, the proven reasons for the
The circumstances under which the versions were made, the proven reasons for the
14 See, for example, S v Hassim and others 1973 (3) SA 455 (A), and S v Kelly 1980 (3) SA
308 (A).
15 S v Oosthuizen 1982 (3) SA 571 (T) at 576G -H. See also S v Bruiners en ‘n ander 1998
(2) SACR 432 (SE) at 439E -F: “Ondervinding het geleer dat daar byna nooit twee of drie
getuies sal wees wat presies dieselfde getuienis sal aflê met betrekking tot dieselfde
voorval of gebeure nie .” [My loose translation: “ Experience has taught that there would
almost never be two or three witnesses who would give exactly the same evidence in
relation to the same incident or events”.]
16 2003 (1) SACR 583 (SCA) at 593F-594G. Emphasis supplied.
contradictions, the actual effect of the contradictions with regard to the reliability and
credibility of the witness, the question whether the witness was given sufficient
opportunity to explain contradictions - and the quality of the explanations - and the
connection between the contradictions and the rest of the witness' evidence,
amongst other factors, to be taken into consideration and weighed up…. Lastly,
there is the final task of the trial Judge, namely to weigh up the previous statement
against the viva voce evidence, to consider all the evidence and to decide whether it
is reliable or not and to decide whether the truth have been told, despite any
shortcomings."
34. Even if the appellant was not a bad witness this does not mean that his
version should be accepted. There were some unsatisfactory features in his
evidence. In cross-examination it was put to the complainant that she had
falsely laid this complaint because she arrived home late that evening, and
was scared of her grandmother and aunts who resided with her in the same
house. This aspect was inconsistent with the appellant’s own testimony - the
grandmother and aunts knew where the complainant was , and she h ad no
reason to be scared when she arrived home. The appellant alleged that he
had regularly asked the complainant for sex and she would just laugh at his
suggestions. This aspect was never put to the complainant in cross -
examination.
35. The complainant and the appellant did not know each other well, even though
they were colleagues. When they left for Hermanus she was initially not
willing to sit next to him in the vehicle but was persuaded by her cousin to sit
in front. As the regional court remarked, it was highly unlikely that she would
have engaged in sex talk with him. It was also strange that after the
complainant would agree to have sexual intercourse with the appellant , he
would first drive to Drommedaris to visit two other perso ns, and not
would first drive to Drommedaris to visit two other perso ns, and not
immediately find a place for them to have intercourse.
36. It is trite that the absence of serious injuries indicated on the J88 medical
form does not mean that the compellent had not been raped.
37. In all of the circumstances, viewed holistically, the regional court’s findings
cannot be faulted.
38. I should mention that, in his petition, the appellant raised as a ground of
appeal that it “ would have been expected of a victim to try and escape
knowing what is ab out to happen for a second time ”. This is a deplorable
statement, and one that I hope not to see again in matters of this nature.
Order
39. I accordingly propose that the following order be granted:
The appeal is dismissed.
___________________________
P. S. VAN ZYL
Acting Judge of the High Court
I agree, and it is so ordered.
___________________________
H. SLINGERS
Judge of the High Court
Appearances:
For the appellant: Ms L. N. Adams
Instructed by: Legal Aid South Africa
For the respondent: Ms E. Cecil
Instructed by: Directorate of Public Prosecutions, Western
Cape