SAFLII Note: Certain personal/privat e 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
(EASTERN CAPE DIVISION, MAKHANDA)
Case No.: CA & R 184/25
Reportable YES/NO
In the matter between:
BHEKI LADUMA APPELLANT
versus
THE STATE RESPONDENT
________________________________________________________________
JUDGMENT ON APPEAL
________________________________________________________________
Cengani-Mbakaza AJ
Introduction
1--~1 -I
[1] The Regional Court sitting in Gqeberha (the court a quo), convicted the
appellant on one count of assault with intent to do grievous bodily harm and two
counts of rape in contravention of s 3 read with ss 1,2,50, 56 (1), 56A,
57,58,59,60,61 and 68(2) of the Criminal Law Sexual Offences and Related
Matters Amendment Act 32 of 2007,read with the provisions of ss
94,256,261,268 and 270 of the Criminal Procedure Act 51 of 1997 (CPA) and
further read with s 51(1) of the Criminal Law Amendment Act 105 of 1997
(CLAA).
[2] In respect of assault with intent to do grievous bodily harm, he was
sentenced to 10 years’ imprisonment. For each count of rape, he was sentenced
to life imprisonment. By operation of the law, the court a quo ordered that the
sentences in respect of counts 1 and 3 should run concurrently. He was therefore
sentenced to an active term of life imprisonment.
[3] Dissatisfied with the court a quo’s decision, the appellant exercised his
automatic right of appeal, appealing against convictions and sentences.
[4] The grounds of appeal as outlined in the notice dated 23 October 2025, can
be summarised as follows:
(a) That, the court a quo wrongly convicted the appellant without properly
assessing the complainant’s evidence, considering the fact that she was a
single witness and under the influence of liquor.
(b) The appellant also avers that the court overlooked the complainant’s
struggles under cross -examination. He contends that the complainant
contradicted her version under oath with her police statements in relation
to the issue of penetration during the alleged rape incidents. Furthermore,
the court a quo erred in drawing a negative inference on appellant’s
failure to testify during the trial proceedings.
(c) The appellant argued that the court over -emphasised the seriousness of
the offence and interests of the society at the expense of the appellant’s
personal circumstances.
The evidence
[5] The complainant, whose identity is protected in the interest of justice,
was in a romantic relationship with the appellant. At the time of the alleged
incident, they had been staying together for approximately 8 months.
[6] On or about 06 July 2024, she was socialising with her friend and the
appellant, consuming liquor. During the social gathering, the complainant
requested permission to attend a traditional ceremony. The appellant refused her
request.
[7] According to the complainant, after her friend left, the appellant
assaulted her: he kicked her in the face, bit her lower lip and forehead and hit
her with a clenched fist, particularly around the nose and mouth area. The
complainant suffered severe bleeding due to the injuries sustained during the
assault. The appellant allegedly further assaulted her by pouring a bucket of
urine and water over her.
[8] He threw her on the bed and undressed her skirt and tight pants. He
simultaneously inserted his penis and finger in her vagina. He had sexual
intercourse with her, stretching her vagina with his finger and asked her not to
close it. The complainant was weakened by the ordeal and called for help with
no response.
[9] The next morning she asked the appellant why he had assaulted her. He
allegedly responded that it was because she had wanted to leave. Thereafter, he
climbed on her and raped her despite her asking what he was doing whilst she
was in pain. He repeated the same conduct stretching her vagina with his finger
saying she should not make it smaller. The appellant went out to buy cigarettes,
giving the complainant an opportunity to call one Ms P […], the next -door
neighbour. Ms P […] b rought the pain medication in company of D[...], her
husband.
[10] When the appellant returned from the shop, he pulled the complainant
who had already stood up. She managed to run to D[...]’s place where D[...]
confronted the appellant asking him to stop what he was doing.
[11] D[...] tried to locate an ambulance which delayed, so one Mr X […] took
the complainant to the police station instead. Upon arrival at the police station,
they found the appellant there, and he was subsequently arrested.
[12] The police then took the complainant to hospital, where she was
examined by a forensic nurse, treated and later discharged. During cross -
examination, the appellant through his legal representative, denied the
allegations against him, claiming consensual sexual intercourse which occurred
before the fight he had with the complainant. Regarding the assault, he claimed
that he was acting in self-defence. Both claims were denied by the complainant.
[13] Ms NY […], the complainant and the appellant’s neighbour, testified
that she was called by Ms P […] to observe the complainant that had been
injured. Initially, she was reluctant to go until Ms P […] showed her the
complainant’s photograph.
[14] Ms NY […] went to the complainant’s place and observed that she was
lying helplessly on the bed with visible injuries, specifically a swollen face and
eyes. She also observed a lot of blood on the floor. She confronted the appellant
who seemed unsure why he assaulted the complainant.
[15] In cross -examination, Ms NY […] added that the complainant had
speech complications and her head appeared heavy, not due to the consumption
of liquor but likely as a result of assault as she would often lower her head while
speaking.
[16] Constable Mbina (Const. Mbina), a South African Police Service Officer
at Walmer police station confirmed that the appellant arrived at the station the
same day as the incident. He requested an ambulance and the appellant admitted
to having assaulted the complainant. Const. Mbina called for an ambulance and
around that time, the complainant’s neighbour arrived asking for help to take
the complainant to the hospital.
[17] The neighbour explained what had happened to the complainant. Const.
Mbina went to the car that was parked outside and observed the complainant’s
injuries, noting the swollen face and slurred speech. Despite speaking
difficulties, the complainant reported that the appellant assaulted and raped her.
[18] The state presented a medical report commonly known as a J88
compiled by a forensic nurse Ms Vilum. Ms Vilum noted these injuries: bite
marks on the face, torn inner lower lip, swelling around both eyes and right
lower jaw and bruises on the arm. The complainant’s photograph and medical
report were submitted as Exhibits A and B respectively. With this evidence, the
state closed its case. The appellant elected not to testify and closed his case.
Appeal against convictions
[19] The issue is whether in its analysis, the court a quo misdirected itself on
both the facts and the law. It is a well -established principle that the state must
prove the guilt of an accused person beyond reasonable doubt 1. The accused
may only be acquitted if his version is reasonably possibly true.
[20] In this instance, it is imperative to examine whether the trial court
properly evaluated the cautionary rules relevant to single-witness evidence2.
[21] It is apposite to bear in mind that the powers of the appeal court in
resolving factual disputes are limited. in Rex v Dhlumayo and Another 3 ,
Schreiner JA set out this principle as follows:
‘Ordinarily the appellant in a criminal appeal has to satisfy the appellate court that the verdict
was wrong, at least to the extent that the trial court should have had a reasonable doubt as to
his guilt. Where there has been no misdirection on fact by the trial Judge, the presumption is
that his conclusion is correct; the appellate court will only reverse it where it is convinced
that it is wrong.’
[22] The Constitutional Court (CC) in Makate v Vodacom (Pty)(Ltd) 4
referred to R v Dhlumayo 5 and made the following judicial remarks: per Jafta J
1 In S v T 2005 (2) SACR 318 (E) at 329 b -e the court held that the state is required, when it tries a person for
allegedly committing an offence, to prove the guilt beyond a reasonable doubt. This high standard of proof
universally required in civil systems of criminal justice, is a core component of the fundamental right that every
person enjoys under the Constitution, and under the common law prior to 1994, to a fair trial. It is not part of a
charter for criminals and neither is it a mere technicality. When the court finds that the guilt of an accused has
not been proved beyond reasonable doubt, that accused is entitled to an acquittal, even if there may be
suspicions that he or she was indeed the perpetrator of the criminal question.
suspicions that he or she was indeed the perpetrator of the criminal question.
2 Section 208 of Act 51 of 1977 entails that an accused may be convicted on the evidence of a single and
competent witness; see also S v Sauls 1981 (3) SA 172 (A) at 180E-G.
3 1948 (2) SA 677 (A).
4 (CCT52/15) [2016] ZACC13;2016 (6) BCLR709 (CC); 2016 (4) SA 121(CC) (26 April 2016) at para 37.
5 Fn 3 above.
(with Mogoeng CJ, Moseneke DCJ, Khampepe J, Matojane AJ, Nkabinde J and
Zondo J) concurring:
‘[37] Ordinarily appeal courts in our law are reluctant to interfere with factual findings made
by the trial courts, more particularly if the factual finding is depended on the credibility of the
witnesses who testified at the trial.”
[23] At paragraph 40, the CC added that the esteem afforded to a trial court’s
credibility findings cannot be overstated. The court held:
‘[40] If it emerges from the record that the trial court misdirected itself on the facts or that it
came to a wrong conclusion, the appellate court is duty -bound to overrule factual findings of
the trial court so as to do justice to the case. In Bernert this court affirmed:
“What must be stressed here is the point that has been repeatedly made. The principle
that an appellate court will not ordinarily interfere with a factual finding by the trial
court is not an inflexible rule. It is recognition of the advantages that the trial court
enjoys which the appellate court does not. These advantages flow from the observing
and hearing the witnesses as opposed to reading ‘the cold printed word’. The main
advantage being the opportunity to observe the demeanour of the witnesses. But this
rule of practice should not be used to ‘tie the hands of the appellate courts. It should
be used to assist, and not to hamper, an appellate court to do justice to the case before
it. Thus, where there is misdirection on the facts by the trial court, the appellate court
is entitled to disregard the findings on facts and come to its own conclusion on the
facts as they appear on the record. Similarly, where the appellate court is convinced
that the conclusion reached by the trial court is clearly wrong, it will reverse it.”6
Analysis
[24] The court a quo correctly made credibility findings on the basis that
there were two mutually destructive versions. 7 The appellant’s grounds of
there were two mutually destructive versions. 7 The appellant’s grounds of
6 Bernet v Absa Bank Ltd [2010] ZACC 28; 2011 (3) SA 92(CC); 2011(4) BCLR 329 (CC) at para 106.
7 See Stellenbosch Farmers' Winery Group Ltd. and Another v Martell & Cie SA and Others (427/01) [2002]
ZASCA 98; 2003 (1) SA 11 (SCA) (6 September 2002).
appeal note some contradictions between the complainant’s evidence in court
and the statement she made to the police. However, as noted in Mkhohle8, not
all contradictions impact a witness’s credibility.
[25] The Supreme Court of Appeal (SCA) in Mafaladiso v S 9 remarked that:
‘The discrepancy in statement caused by one sentence only could be interpreted in one of two
ways. It must be read in the context of the whole statement. Most significantly, the court must
take into account the fact that a statement to the police was not subjected to cross -
examination, language and cultural differences between the witness and the person who took
the statement, and the fact that the police did not require any explanation of a statement.
Secondly, not every error by, or discrepancy in the statement affects the witness’s credibility.
Thirdly, the different versions must be evaluated holistically. This evaluation includes the
circumstances in which the versions were given, reasons for the discrepancies, the effect of
the discrepancies on the witness’s credibility and whether the witness had sufficient
opportunity to explain the discrepancies. Lastly, the witness’s statement to the police must be
weighed up against the witness’s viva voce evidence.’
[26] Notably, the inconsistency in complainant’s statement at page 120 of the
index bundle exhibits no material contradictions. Overall, the said statement
presents a coherent account of the incident especially when read in context.
[27] It should be acknowledged that although a single witness, the
complainant’s evidence finds corroboration in the observations made by Ms NY
[…] and Const. Mbina.
[28] The medical report speaks volumes about the injuries the complainant
sustained. Her helpless state indicates that this was egregious behaviour hence
8 Nestadt JA stated , in Mkohle 1990(1) SACR 95 (A) at 98f -g , ‘Contradictions per se do not lead to the
rejection of a witness’ evidence …. They may simply be indicative of an error ( S v Oosthuizen 1982 (3) SA 571
(T) quoting from 576G-H :) …. it is stated that not every error made by a witness affects his credibility; in each
case the trier of fact has to take into account such matters as the nature of the contradictions, their number and
importance, and their bearing on other parts of the witness’ evidence.’
9 2003 (1) SACR 583 (SCA) (593j – 594a-g).
the severe consequences. Furthermore, the appellant’s spontaneous admission to
Const. Mbina is a crucial piece of evidence that corroborates the complainant’s
version, strongly suggesting that she was indeed assaulted.
[29] Therefore, the appellant’ version that he acted in self -defence is
untenable, specifically because he had no injuries when he approached the
police station to request an ambulance. Similarly, there is no cogent reason to
doubt the complainant’s evidence regarding her account on the rape charges.
Her testimony is remarkably consistent, from her initial report to Ms NY[…] to
her statement at the police station.
[30] It is a rule of practice, aligning with the constitutional imperatives, that
an accused enjoys the right to remain silent. As enunciated by the CC in Osman
and Another v Attorney -General Transvaal 10, the accused’s failure to testify
does not relieve the prosecution of its duty to prove guilt beyond reasonable
doubt.
[31] Nevertheless, it is well -established that an accused who elects to remain
silent runs the risk that, absent any rebuttal, the prosecution’s case may suffice
to establish the elements of the offence. 11 In casu, it is reasonable to conclude
that the accused failed to testify at his own peril, given the overwhelming,
credible and reliable evidence presented by the state.
Appeal against sentences
[32] Regarding an appeal against sentence, this court is guided by the
principle laid down in S v Pillay12, where the court stated:
10 1998(4) SA 1224 (CC) at para 50.
11 Ibid.
12 1977 (4) SA 531 A at 635 E-F.
‘…as the essential inquiry in an appeal against sentence, however, is not whether the
sentence is right or wrong, but whether the Court in imposing it exercised its discretion
properly and judicially, a mere misdirection is not by itself sufficient to entitle the Appeal
Court to interfere with the sentence; it must be of such a nature , degree or seriousness that it
is shows, directly or inferentially, that the court did not exercise its discretion at all or
exercised it improperly or unreasonably. Such a misdirection is usually and conveniently
termed one that vitiates the Court’s decision on sentence . That is obviously the kind of
misdirection predicated in the last quoted dictum above: one that the “dictates of justice”
clearly entitle the Appeal Court “to consider the sentence afresh.’
[33] The issue for determination on sentence before this court is whether the
court a quo erred in finding that no substantial and compelling circumstances
existed. In S v GK 13, Rogers J stated that on appeal, the court may take into
account and examine not only those factors considered by the trial court, but all
the circumstances bearing on the question, in order to determine the correctness
of the trial court’s findings re the absence and presence of substantial and
compelling circumstances.
[34] The SCA in Malgas 14 (Malgas) had indicated that the prescribed
sentences are the starting point when imposing a minimum sentence and should
not be departed from for flimsy reasons. The SCA emphasised that courts are
obligated to implement the prescribed minimum sentences notwithstanding any
personal doubts or concerns regarding the efficacy of the policy underlying the
legislation. Furthermore, speculative hypotheses favourable to the offender as
well as undue sympathy are to be excluded. The principles encapsulated in
Malgas15 were also followed in S v Matyityi16 and other long line of cases.17
13 2013 (2) SACR 505 (WCC).
13 2013 (2) SACR 505 (WCC).
14 (117/2000) [2001 ZASCA 30; [2001] (3) All SA 220 (A); 2001(2) SA 1222 (SCA); 2001(1) SACR 469
(SCA) ( 19 March 2001) at para 25.
15 Fn 14 above.
16 2011(1) SACR 40 SCA; [2010] 2 All SA 424 (SCA) 30 September 2010).
17 See also DPP KZN v Ngcobo 2009 (2) SACR 361 (SCA) para 12.
[35] The legal position is that in instances where a court is convinced that
after consideration of all factors, an injustice would occur if the minimum
sentence is imposed, then it can categorise such factor(s) as constituting
substantial and compelling circumstance(s)18.
[36] The CLAA has been amended to include life imprisonment when the
victim is in a domestic relationship with the accused and the crime involves
rape. These amendments aim to strengthen the protection against gender -based
violence.
[37] Our Constitution guarantees that no one may be subjected to violence in
any form. 19 It also guarantees the right to dignity 20 and privacy 21 which were
clearly infringed upon in this case. A plethora of cases describe rape as a
degrading, humiliating and brutal invasion of a person’s most intimate private
space.22
[38] In the matter under consideration, the appellant persisted with his
actions, disregarding the complainant’s expressed discomfort and physical pain.
He raped her twice stretching her genital with her fingers, making a torrent of
demeaning remarks. Despite visible bleeding, the appellant showed no mercy
instead displaying brutal behaviour towards her.
18 S v Pillay fn 12 above.
19 Section 12 (1) (c) of the Constitution, Act 108 of 1996 (the Constitution).
20 Section 10 of the Constitution
21 Section 14 of the Constitution
22 S v C 1996 (2) SACR 121 C at 186 e-f; S v Chapman 1997(3) SA 341 (SCA) at 345 c-d; S v MM 2013 (2) SA
537 at 540 G.
[39] Although the pre -sentence report indicates that the appellant has a minor
child, he is not a primary care giver. The child resides with the mother and the
appellant and had been living with the complainant. In my opinion, the court a
quo duly considered the appellant’s personal circumstances in relation to the
legitimate interests of the community. The appellant’s repeated acts including
the brutal assault indicates a lack of prospects of rehabilitation. He did all this to
his partner at their home where she should be safe and protected by him. His
actions suggest that retribution is warranted, given the violent nature of the
crime.
[40] Therefore, the cumulative effect of the appellant’s personal
circumstances, weighed against the aggravating factors, does not constitute
substantial and compelling circumstances justifying a departure from the
prescribed effective term of life imprisonment.
[41] In the result, the appeals against convictions and sentences are
dismissed.
_______________________
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT
I agree
____________
B MAJIKI
JUDGE OF THE HIGH COURT
APPEARANCES:
For the state : Adv. AA Nohiya
DPP, Grahamstown
For the accused : Adv. D P Geldenhuys
Legal Aid-SA, Grahamstown
Date Heard : 04 March 2026
Date Delivered : 14 April 2026