IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Reportable/Not Reportable
Case No: A125/2025
In the matter between:
MLANDELI NYUKA Appellant
and
THE STATE Respondent
Coram: Justice V C Saldanha et Acting Justice V Barthus
Heard: 22 May 2026
Delivered electronically: 29 May 2026
JUDGMENT
Barthus AJ (Saldanha J concurring):
[1] This is an appeal against a conviction of sexual assault. The appellant was
convicted in the Oudtshoorn Regional Court of sexual assault, in contravention
of section 5 (1) of the Criminal Law (Sex ual Offences and Related Matters)
Amendment Act 32 of 2007 read with Section 257 and 261 of the Criminal
Procedure Act 51 of 1977.
[2] The appellant was sentenced to five years' direct imprisonment in respect of the
sexual assault on 9 February 2024. Leave to appeal was refused but was granted
on petition on 28 January 2025 in respect of the conviction only.
[3] The appellant, then serving as the Deputy Mayor of the Oudtshoorn Municipality,
was charged with sexually assaulting the complainant, his administrative assistant,
in his office. He pleaded not guilty and did not provide a plea explanation. He was
legally represented throughout the trial in the court a quo. The State presented the
evidence of the complainant and Mrs. Moos, while the appellant testified in his own
defence and called no further witnesses.
[4] It was common cause that the appellant and the complainant were affiliated with
the same political party ( the party) . The offices of the appellant and that of the
complainant were adjacent and lead into one another.
[5] The complainant testified that on 27 September 2022 she travelled to work with
the appellant, arriving at approximately 09h00. Shortly thereafter, he called her into
his office. While they were discussing party-related matters, the appellant suddenly
stood up, applied sanitiser to his hands, raised them to his face, and smelt them.
He then locked the door, approached her, and offered her a managerial post. He
proceeded to lift her dress and touched her vagina, buttocks, and breasts.
[6] The complainant pushed the appellant away an d then, fortuitously his telephone
rang. He answered the phone and she seized the opportunity to escape. She
heard the appellant tell the security guard not to come up and that he did not want
to be disturbed. The complainant left her handbag behind. The complainant
testified that she stood shaking outside the Municipal Building contemplating
whether she should go back to get her handbag. She decided against going back
and proceeded to walk home. On route she encountered Mrs Moos, a municipal
contractor, who asked the complainant why she was not at work. The complainant
gave a tearful account of what transpired after which Mrs Moos encouraged her to
report the matter to the police. Mrs Moos accompanied the complainant to the
police station.
[7] In her testimony, Mrs. Moos confirmed that when she found the complainant, she
looked distraught and that the complainant told her what the appellant had done to
her in his office. She testified that the complainant was taken to the trauma
counselling room at the police station because she was crying and shaking.
[8] The appellant’s defence was that factions within the political party led the
complainant to fabricate the allegation in order to remove him from office. He
testified that, during the meeting in his office, he reprimanded the complainant for
failing to complete her work on time. She allegedly raised a complaint about an
electricity disconnection at her home and asked him for money. He claimed he had
no cash and advised her to open a bank account so that he could transfer funds.
He further stated that he allowed her to leave work to address the electricity issue.
This version was incoherent since on his version, neither of them had the R800
needed to pay the bill, yet he still permitted her to leave to resolve it.
[9] The appellant further asserted that the complainant had deposed to an affidavit in
a court application against him before the High Court. The complainant denied this
and testified that she was one of the members who trusted and supported the
appellant. She claimed that her signature had been forged on the affidavit. She
accompanied the appellant to the police station and confirmed that she did not
prepare the affidavit and that she did not sign it either . The affidavit forms part of
the record and does not bear the complainant’s signature.
[10] The appellant accused Mrs Moos of instigating the complainant because she had
a personal vendetta against the appellant for his refusal to offer her daughter a job
at the municipality. Mrs. Moos denied this. Mrs. Moos did not attempt to embellish
her testimony and readily made concessions . Her evidence was inconsistent with
that of a malicious witness testifying out of spite or ulterior motive.
[11] The appellant denied sexually assaulting the complainant. However, much of his
testimony was implausible and contradictory. His explanation for the complainant
leaving her handbag behind, that she intended to collect it later, was unconvincing,
particularly as her office was adjacent to his and she never returned for it. By
contrast, the complainant’s version is reasonable and consistent with her having
left in haste.
[12] The most damaging aspect of the appellant’s evidence was his claim that the
complainant made sexual advances toward him as a gesture of gratitude for his
support. This version was not put to the complainant during cross-examination and
emerged only later, evidently to bolster his defence. Its late introduction
undermines the appellant’s credibility.
[13] The Appellant raised the following points on appeal, in relation to the
complainant’s evidence and submitted that the court a quo erred in its assessment
of the evidence in circumstances where:
a) the complainant did not raise the alarm to the security guard about the
violation.
b) the complainant was part of a conspiracy to get rid of the appellant because
of the factions within their political party;
c) the complainant’s statement to the police contradicted her evidence in court;
and
d) as a single witness the complainant’s evidence should be approached with
caution.
[14] The appellant’s claim that the complainant should have reported the incident to the
security guard is unsustainable. She acted reasonably by disclosing the incident to
Mrs. Moos, whom she encountered by chance on her way home, and by
subsequently reporting it to the police.
[15] Regarding the contradictions between the police statement and oral evidence , the
Supreme Court of Appeal in S v Mafaladiso en andere1 held as follows:
1 2003 (1) SACR 583 (SCA) at 593F-594G.
“it must be carefully determined whether there is an actual contradiction and what the
precise nature thereof is. ... Secondly, it must be held 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 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."
[16] In the present matter, there were no material contradictions by the complainant. In
fact, the non -material contradictions related to innocuous detail such as whether
she stood under a tree outside the building after the incident which simply had no
impact on her credibility. The other contradiction raised concerned who answered
the phone. The complainant explained that she had taken a call before her
meeting with the complainant but that his phone rang in the office during the
incident and that he had taken the call. Given the nature of the ordeal and the fact
that the complainant was traumatised one can reasonably accept that there might
be minor contradictions in her state ment. The complainant gave plausible
explanations in this regard.
[17] In S v J 1998 (2) SA 984 (SCA), the Court held that when evaluating the evidence
of an alleged victim of rape or sexual assault cases, a Court need to do no more
than exercise the caution that is necessary when there is only one witness to the
offence alleged.
[18] In S v Sauls & Others 2 the Court referred to the cautionary rule and stated the
following:
“There is no rule of thumb test or formula to apply when it comes to a consideration of
the credibility of the 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, even though there are shortcomings or defects or contradictions in the
testimony, he is satisfied that the truth has been told. The cautionary rule may be a
guide to a right decision, but it does not mean that the appeal must succeed if any
criticism, however slender, of the witnesses’ evidence were well -founded’ It has been
said more than once that the exercise of caution must not be allowed to displace the
exercise of common sense.”
[19] The complainant’s evidence was clear and satisfactory in every material respect. It
was both credible and reliable. I am more than satisfied that the state had proved
the guilt of the appellant of the sexual assault on the complainant beyond
reasonable doubt. The appellant`s version was hopelessly and inherently
improbable and was correctly rejected by the magistrate as not reasonably
possibly true. In the result I propose to confirm the co nviction and dismiss the
appeal.
[20] I should add that it is deeply concerning that a Deputy Mayor could commit such
an offence against a subordinate. This conduct reflects a serious abuse of power.
2 1981 (3) SA 172 (A) at 180E–G
[21] At the hearing of the appeal ,counsel on behalf of the state confirmed that the state
had not furnish ed the court a quo with a Victim Impact Report and so it was
uncertain whether the complainant received any counselling for the trauma she
suffered at the hands of the appellant and whether she was still employed by the
municipality since laying the charge.
[22] Greater emphasis and care should be placed on the state of victims of sexual
assault since the trauma continues long after the matter is reported to the police. A
Victim Impact Report should as a matter of course be obtained and submitted to
the trial court before sentencing since it provides insight into the tangible impact of
the crime on the victim(s) and ultimately informs the considerations, amongst
others, on a proper sentence. Moreover, it provides a proper opportunity for the
victim to be acknowledged which in turn empowers and advances recovery from
the traumatic event. Mr Uys on behalf of the State helpfully gave an undertaking to
ensure that the complainant receive s the appropriate counselling and assistance
as a result of the sexual assault on her . The court is indebted to him and the office
of the DPP for doing so.
[23] In respect of appeal against conviction, the following order is made:
1. The appeal against the conviction of sexual assault is dismissed and the
conviction is confirmed.
________________
V BARTHUS
ACTING JUDGE OF THE HIGH COURT
I agree and it is so ordered.
________________
V C SALDANHA
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel for the Appellant: Ms A De Jongh
AltheaDJ@legal-aid.co.za
Counsel for the Respondent: Adv K Uys
KUys@npa.gov.za