IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
LEMPIDITSE GEORGE JABANG
and
Not Reportable
Case no: A 168/2025
APPELLANT
THE STATE RESPONDENT
Neutral citation: Jabang v The State (A168/2025) [2026] ZAFSHC 316 (28 May
2026)
Coram:
Heard:
Delivered:
DANISO J et CRONJE AJ
13 April 2026
28 May 2026
Summary : Criminal appeal - two convictions of rape - complainant a
single witness - evidence satisfactory in every material respect - s 208 of the
Criminal Procedure Act 51 of 1977 (CPA) satisfied - magistrate presiding without
assessors - s 93ter of the Magistrate's Court Act 32 of 1944 not effective - no
obligation to appoint assessors - s 186 of the CPA affords the court a prerogative to
subpoena witnesses if it finds it essential to the just decision of the case - no basis for
findir:,g that the court did not exercised its prerogative judicially - presenting a victim
impact report at the sentencing stage not irregular - alleged non-compliance with
the National Instructions of the Police, if applicable, not resulting in an unfair trial.
2
ORDER
1 The appeal is dismissed.
JUDGMENT
Cronje AJ
[1] The appellant was convicted on two counts of rape in the Regional Court and
sentenced to 22 years on each count, with the sentences running concurrently. The
appellant was deemed unfit to possess a firearm, and his particulars were to be
included in the National Register for Sex Offenders in terms of s 50(1) of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA).
The appellant appeals against the convictions and the sentences imposed. It should
be noted from the outset that the legal representative appearing for the appellant in the
appeal was not the legal representative who represented him at trial.
Grounds of appeal
[2] The grounds of appeal are numerous and will be dealt with thematically where
possible.
First ground
[3] The court a quo erred by admitting unlawful and uncorroborated evidence and
drawing incorrect inferences therefrom. The court, notwithstanding its remark that the
complainant was a single witness with no first report, convicted the appellant.
[4] Whilst there may be argument in the criticism of a strict interpretation of what a
first report is, the complainant testified that she typed the incidents on her telephone
and posted what happened to her on Facebook, telling her family members about her
situation and asking for help. Her brothers were unemployed and could not send
money for her transport. When she eventually left the farm, she reported it to the police.
This evidence was not presented as direct evidence given under oath.
3
[5] In Vilakazi v The State,1 it was held:
'[15] It is my view that our courts have not considered the lack of evidence of a voluntary
complaint (also referred to as a 'first repolt') to be fatal to a charge of rape. In this regard,
Milton, in South African Criminal Law and Procedure, says: "It is not mandatory that there
should be evidence that the woman has complained that she has been raped. However, if she
has, such complaint is admitted in evidence to show consistency and to negative a defence of
consent, but not as proof of their contents nor to corroborate the complainant. But it is not
essential that consent should be in issue; the complainant may, for instance, be a girl of under
12 years of age. The purpose of admitting evidence of a complaint is that it serves to rebut any
suspicion that the woman has lied about being raped. The corollary is, of course, that should
a woman not complain, or not complain timeously, the conclusion may be drawn that she is
lying in her evidence that she was raped. The conclusion may well be unfair to the victim, since
women may hesitate to complain of rape for reasons of shame, embarrassment or fear.' (Own
emphasis and footnote omitted.)
[6] In Cupido v S,2 the Supreme Court of Appeal considered the provisions of s 208
of the Criminal Procedure Act 51 of 1977 (the CPA) and held that:
'[19] Section 208 of the CPA provides that an accused may be convicted of any offence on
the single evidence of any competent witness. The general approach as to how the evidence
of a single witness should be treated is well established. Mr Mathewson relied on the case of
R v Mokoena (Mokoena), a case which dealt with the predecessor section to s 208, where it
was stated:
"Now the uncorroborated evidence of a single competent and credible witness is no doubt
declared to be sufficient for a conviction by s 284 of Act 31 of 1917, but in my opinion that
section should only be relied on where the evidence of the single witness is clear and
section should only be relied on where the evidence of the single witness is clear and
satisfactory in every material respect. Thus the section ought not to be invoked where, for
instance, the witness has an interest or bias adverse to the accused, where he has made a
previous inconsistent statement, where he contradicts himself in the witness box, where he
has been found guilty of an offence involving dishonesty, where he has not had proper
opportunities for observation, etc ... ' (Footnotes omitted.)
1 Vilakazi v The State (2015) ZASCA 103. See also: Mai/av S (2023) ZASCA 3 paras 27-29.
2 Cupido v S (2024] ZASCA 4.
4
[7] In S v van der Meyden,3 the court held that to convict, the evidence must
establish the guilt of the accused beyond a reasonable doubt, which will be so only if
there is at the same time no reasonable possibility that an innocent explanation which
has been put forward might be true. The court does not look at the evidence implicating
the accused in isolation in order to determine whether there is proof beyond a
reasonable doubt, and neither does it look at the exculpatory evidence in isolation in
order to determine whether it is reasonably possible that it might be true.
[8] Applying the tests, I cannot find any reason why the court was not entitled to
rely on the complainant's evidence as a single witness. Mr Smit, incidentally, in the
application for leave to appeal, conveyed to the court a quo that it is not the appellant's
case that the court 'erred per se' in relying on the evidence of a single witness, but it is
one of the grounds of appeal.4
[9] The court found her evidence straightforward and mostly uncontested, as she
never contradicted herself during cross-examination. The court noted that the only
issue was that much of the information was not forthcoming in evidence-in-chief but
only during cross-examination. In my view, those were not material to the extent that
they diminished the reliability and credibility of the complainant and her evidence.
Second ground
[1 O] The court erred here in not taking judicial notice in terms of s 224 of the CPA of
the compulsory requisite endorsed in Item 7(3)(d) and (e) of National Instruction 3/2008
(SAPS] on sexual offences published in terms of s 66(1) of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007 (herein referred to as the
CLA).5
[11] This is not a correct reading and interpretation of the Item. It outlines the
responsibilities of the first police officer at the crime scene, who must reassure the
victim, obtain a brief account of the events, listen to the victim, write down everything
victim, obtain a brief account of the events, listen to the victim, write down everything
the victim says, and later prepare a comprehensive report. The complainant testified
3 S v van der Meyden 1999 (1) SACR 447 (WLD) at 448F-H.
4 Record, page 214.
5 Government Notice 865 in Government Gazette No. 31330 dated 15 August 2008.
5
that she was raped more than once on the farm, and when she left the farm, she
reported it. The complainant was no longer at the crime scene. It can therefore not be
said that there was an irregular or wrongful deviation from the formalities and rules of
procedure aimed at ensuring a fair trial.
Third ground
[12] It is stated that the court erred in not informing the appellant of his right to have
the matter adjudicated before two assessors in terms of s 93ter of the Magistrates'
Court Act 32 of 1944, as endorsed in s 68 of the CLA, where the offence includes rape
or compelled rape.
[13) Although the reference to the legislation is correct, s 93ter has not, to date, come
into effect. For that reason, there is still no right or obligation to engage assessors. The
obligation to do so in respect of murder is trite.6
Fourth ground
[14) The court erred by failing to place it on record whether or not the interpreter was
officially appointed or is a casual interpreter. The record does not provide a basis for
the extent of the qualification of the interpreter and therefore renders the evidence
adduced by the single witness inadmissible. Related to this ground is the allegation
that the court erred by failing to put the charges to the appellant in his language of
choice or to ensure he could understand them. It cannot be said that the appellant
understood the charges.
[15) Raising a new ground on appeal is an extraordinary measure which can only be
permitted if it involves a point of law or evidence which is already present in the record
of the proceedings, regard must be had to fairness to the opponent and the interests
of justice . It can never be fair to an opponent (the State) to be confronted with
complainants which were never raised at trial, they do not appear in the record and it
can never be in the interest of justice that an appeal court is turned to a re-trial, fairness
dictates that the State is entitled to answer to these grounds. It must also be borne in
dictates that the State is entitled to answer to these grounds. It must also be borne in
mind that these grounds including those mentioned in grounds 7, 10 and 13 are
6 Gayiya v S [2016] ZASCA 65; 2016 (2) SACR 165 (SCA) para 11.
6
irrelevant and have no bearing on the evidence relied upon by the court to convict the
appellant. They are merely procedural aspects which some relate to the investigation
etc, not the facts and evidence relayed at trial. An appeal is confined to the record. If
there were issues about for example the arrest, they should have been dealt with prior
to the trial by way of interlocutory applications or at least appear on the record. Not
every error (if any) prejudices an appellant in the conduct of his defence with the result
that proceedings were not in accordance with justice.
[16] There is no affidavit or other evidence from either the appellant or Mr Neves
(who represented the appellant at the trial) to support this ground. There is a single
reference in the record to an instance of an incorrect translation. The passage reads
as follows:
'MS MOCK: He asked them whether they were seeing their new mother. They said yes.
COURT: I think in your, in your explanation [vernacular].
INTERPRETER: Oh ja, I omitted that one, they further said they were happy for her, Thanks
your worship. 17
[17] This evidence was not critical in determining whether the appellant raped the
complainant, nor does any other such instances.
Fifth ground
[18] It is stated that the court erred by allowing hearsay evidence and failed to apply
s 3 of the Law of Evidence Amendment Act 45 of 1988, which pertains to the
complainant's reference to a certain Masintle. 8
[19] It should be noted that Mr Neves objected to the hearsay. The prosecutor
implored the complainant to refrain from using a version of what other people told her.
There was no need for the court to make a ruling.
[20] The court, mero motu, without objection from Mr Neves, stated that it would not
allow hearsay evidence regarding what one Mpho told the complainant.9
7 Record, Part 3, page 9.
8 Record, Part 3, page 9.
9 Record, Part 3, page 23 - 24
7
[21] In respect to the references to one Shorty, Mr Neves objected, and the state
immediately confirmed that he will not be called, and no more came from it. It was not
necessary for the court to make a ruling.
[22] The judgment of the court, in any event, places no reliance on any of these
people. There is a cursory reference to one Mampuru in the judgment, but no
substance. The examination of the record does not show that the court a quo relied on
such evidence.
Sixth ground
[23] The appellant avers that the court erred in failing to call witnesses. Reliance is
placed on the powers of the police and labour legislation to obtain the names,
addresses and contact details of the employees (witnesses) who worked on the farm
during the period in question. The court had a legal duty to see to it that justice is done
and that a just decision of the matter prevailed.
[24] A cautionary note should be added. In paragraphs 13.9 to 14.3 of the grounds
of appeal, it is stated that the court erred in not invoking the duty under s 186 of the
CPA to call CCMA10 witnesses who transported the complainant after she had already
left the farm. It is stated that Mr Smith (the present legal representative) made enquiries
post-trial and determined that the so-called witnesses do not exist and that no
investigations were conducted. It is not proper to present a court of appeal with
allegations on the grounds of appeal where the material and evidence was not placed
before the trial court. Grounds of appeal are not evidence.
[25] The record shows that both parties had several potential witnesses available;
the complainant stated that those who may have supported her do not wish to testify,
for whatever reason. The appellant stated that 44 people can confirm his version of the
events on the farm, but he did not call a single one. Pertaining to the critical facts of
the instances of rape, the court was faced with the credibility, reliability and consistency
the instances of rape, the court was faced with the credibility, reliability and consistency
of the evidence of both the complainant and the appellant and needed no extraneous
1° Commission for Conciliation, Mediation and Arbitration.
8
facts to make a finding. A litigant is entitled to call any witness that he believes would
bolster his case. Section 186 of the CPA affords the court a prerogative to subpoena
witnesses if its finds it essential to the just decision of the case. The court cannot be
faulted.
Seventh ground
[26] The court erred in considering that the investigation officer failed to depose a
precis or a summary of the case in terms of Item 6(1 )(f) of Standing Order (General)
321 - Docket Management - Case docket (SAPS 3M).
[27] I know of no legal requirement that the court be involved or informed of this. If
the appellant was of the view that this is material, it should have been placed on record,
and the state, or the appellant, may also have elected to call the investigating officer.
This was not done, and this ground carries no weight. The ground of appeal does not
state how this may have resulted in a different conclusion by the Court.
Eighth ground
[28] The court erred by allowing the complainant to continue to rely on hearsay
evidence and to testify about issues beyond the scope of her affidavit disclosed to the
defence . Reliance is placed on Shabala/a and Others v Attorney-General of the
Transvaal and Another (Shabala/a).11
[29] It is not apparent from the record that the court was addressed on this point.
Nor could I find any request for access to or copies of other documents. There do not
appear to be any references in the record to the complainant's statement, and, on my
reading of the record, it was not put to the complainant that her evidence deviated from
her statement. I also could not find any questions put to the complainant about whether
she made more than one statement. In Shabalala,12 the court, inter alia, held that,
ordinarily, an accused person should be entitled to have access at least to the
statements of prosecution witnesses, but the prosecution may, in a particular case, be
11 Shabala/a and Others v Attorney-Genera/ of the Transvaal and Another[1995] ZACC 12; 1995 (12)
BCLR 1593; 1996 (1) SA 725.
12 Ibid para 37.
9
able to justify the denial of such access on the ground that it is not justified for the
purposes of a fair trial.
[30] What a fair trial might require in a particular case depends on the circumstances.
The application of the law pertaining to the adequacy of the particulars furnished might
have to be re-examined, having regard to the 'spirit, purport and objects of the
Constitution of the Republic of South Africa, 1996 (the Constitution), to identify
witnesses able to contradict the assertions made by the State witnesses; to obtain
evidence which might sufficiently impact upon the credibility and motives of the State
witnesses during cross-examination; to properly instruct expert witnesses to adduce
evidence which might similarly detract from the probability and the veracity of the
version to be deposed to by the State witnesses; to focus properly on significant
matters omitted by the State witnesses in their depositions; to properly deal with the
significance of matters deposed to by such witnesses in one statement and not in
another, or deposed to in a statement and not repeated in evidence; or to address
hesitations, contradictions and uncertainties manifest in a police statement but
overtaken by confidence and dogmatism in viva voce testimony.
[31] No rigid rules are desirable. It is for the trial Court to exercise a proper discretion
having regard to the circumstances of each case. The State might successfully
contend that, having regard to the particulars in the indictment, read with the summary
of substantial facts, the Court would have to have regard to all the relevant
circumstances in identifying whether the right to a fair trial in a particular case should
include the right of access to the police docket. If the answer is in the negative, the
application for such access must fail. If the answer is in the affirmative, the Court would
ordinarily direct that access by the accused to the relevant parts of the police docket
be allowed.
Nineth ground
be allowed.
Nineth ground
[32] It is stated that Item 5(1 ), Step 6, the South African Police Standing Order
(General) 327 on attestation of statements makes it clear that the deponent and the
commissioner of oaths must initial every page of the statement and the deponent must
sign in the appropriate place in the presence of the commissioner of oaths.
10
[33] Regulations Governing the Administration of Oaths have been promulgated in
terms of s 10 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963.
Section 10(1 )(b) of this Act confers upon the Minister of Justice the power to make
regulations prescribing the form and manner in which an oath or affirmation shall be
administered, and a solemn or attested declaration shall be taken, when not prescribed
by any other law. It provides that the deponent shall sign the declaration in the
presence of the commissioner of oaths, and below the deponent's signature, the
commissioner of oaths shall certify that the deponent has acknowledged that he knows
and understands the contents of the declaration, and he shall state the manner, place
and date of taking the declaration.13 There is no requirement that each page shall be
signed by a commissioner of oaths. Non-compliance is, in any event, condonable. It
cannot be said that there is no affidavit. The court, in any event, had to weigh the
evidence, taking all into consideration, and the reasons cannot be faulted.
[34] It is noted that the complainant's statement refers to CAS 1087/11/22. The
content pertains to the charges. The complainant's statement in the record complies
with the requirements in every material respect. A standing order of the police cannot
override the clear empowering provisions of a national Act. It may bind the police but,
in my view, does not bind a court. If the legal representative and the prosecutor fail in
their duty to the Court, it does not mean that the state failed to prove the offences. A
legal representative should raise these issues timeously.
Tenth ground
[35] Various issues are raised. It is firstly stated that a Victim Impact Statement (VIS)
was not taken in terms of Item 21 of the National Instruction. It never formed part of
the docket, and it is therefore unlawful and irregular.
[36] Notwithstanding my search for precedents in which a statement was only dealt
[36] Notwithstanding my search for precedents in which a statement was only dealt
with at the sentencing proceedings and found to be irregular, I found none. In Mai/a v
S,14 the court considered a victim impact statement during the sentencing proceedings
13 See: VJS v SH [2024] ZAWCHC 333 para 18.
14 Op cit fn 1 para 49.
11
to reflect the complainant's voice in proceedings that affect her directly. In State v
Matyityi, 15 it was expressed as follows:
'[17) By accommodating the victim during the sentencing process the court will be better
informed before sentencing about the after effects of the crime. The court will thus have at its
disposal information pertaining to both the accused and victim and in that way hopefully a more
balanced approach to sentencing can be achieved. Absent evidence from the victim the court
will only have half of the information necessary to properly exercise its sentencing discretion.
It is thus important that information pertaining not just to the objective gravity of the offence but
also the impact of the crime on the victim be placed before the court. That in turn will contribute
to the achievement of the right sense of balance and in the ultimate analysis will enhance
proportionality rather than harshness. Furthermore, courts generally do not have the necessary
experience to generalise or draw conclusions about the effects and consequences of a rape
for a rape victim. As MOiier and Van der Merwe put it: "It is extremely difficult for any individual,
even a highly trained person such as a magistrate or a judge, to comprehend fully the range
of emotions and suffering a particular victim of sexual violence may have experienced. Each
individual brings with himself or herself a different background, a different support system and,
therefore, a different manner of coping with the trauma flowing from the abuse".' (Own
emphasis and footnotes omitted.)
[37] There is no basis to criticise the commissioning of the VIS and the court's
acceptance of the statement. One may appreciate a situation in which a statement is
taken at the crime scene and needs to be supplemented when the complainant is in a
better frame of mind to provide more detail. In this instance, however, the complainant
was a major, and the crime occurred at a place where she did not find herself any
was a major, and the crime occurred at a place where she did not find herself any
longer. A further statement was, in my view, not necessary. The appellant's legal
representative took no issue with the report.
Eleventh ground
[38] It is stated that the appellant's legal representative did not lead evidence
disclosing the appellant's version, but instead immediately cross-examined the
appellant during his evidence in chief on the complainant's version. This led the
appellant to deny the complainant's version, and his own version was never solicited
by his legal representative. On this basis, the appellant incriminated himself.
15 State v Matyityi (2010] ZASCA 127; 2011 (1) SACR 40 (SCA); [201 OJ 2 All SA 424 (SCA).
12
[39] I cannot agree with this criticism. The record shows not only that the
complainant was cross-examined and the appellant's version put to her, but also that
Mr Neves, on more than one occasion, took instructions during cross-examination.
There is nothing untoward in a legal representative asking his client to comment on
what a complainant testified to, and the record does not show that the appellant was
cross-examined by his own representative.
Twelfth ground
[40] It is stated that the errors and gross irregularities that were committed during
the trial open the door for the appellant to rely on and enforce his constitutional right in
terms of s 35(2)(d) of the Constitution and demand his release from custody as his
incarceration is unlawful.
[41] This should not be seen in isolation. When the grounds are considered, no
infringement of the constitutional rights can be noted.
Thirteenth ground
[42] The court erred in finding that the complainant was pregnant during the course
of the alleged occurrence of the crimes, and the appellant was convicted without any
medical evidence presented in this regard.
[43] There is no basis for this criticism. The complainant arrived at the farm on
8 November 2022 and left on 24 November 2022. She went to the police on
25 November 2022 and opened the case against the appellant. She went to the clinic
on 28 November 2022, and police officers took her to the National Hospital, where she
was informed that she had an infection and was four months pregnant. She was
therefore pregnant before she arrived on the farm and was raped whilst pregnant.
The sentences imposed
[44] The only substantive criticism is that the court erred in allowing the alleged
unlawful VIS to be adduced as evidence and admitted as an exhibit after conviction.
13
[45) Presenting VIS is not unlawful. The statement was duly deposed and
commissioned. It was presented before sentencing commenced. Mr Neves raised no
objection to it being handed in as evidence, and the court duly considered the profile
of the appellant.
[46] The principles applicable for a court to interfere with a sentence were set out in
S v Ma/gas: 16
'[12) Subject of course to any limitations imposed by legislation or binding judicial precedent,
a trial court will consider the particular circumstances of the case in the light of the well-known
triad of factors relevant to sentence and impose what it considers to be a just and appropriate
sentence . A court exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question of sentence as if it were the trial court
and then substitute the sentence arrived at by it simply because it prefers it. To do so would
be to usurp the sentencing discretion of the trial court. . . . It may do so when the disparity
between the sentence of the trial court and the sentence which the appellate court would have
imposed had it been the trial court is so marked that it can properly be described as "shocking",
"startling" or "disturbingly inappropriate" ... '
[47) Considering the record, the grounds of appeal, and the arguments, there exists
no basis for this Court to interfere with the convictions and sentences imposed.
[48] The appeal is therefore dismissed.
(49) In line with practise, the following order is made:
1 The appeal is dismissed.
I concur.
..
PR CRONJE
ACTING JUDGE OF THE HIGH COURT
16 S v Ma/gas (2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469
(SCA).
14
NS DANISO
JUDGE OF THE HIGH COURT
15
Appearances
For the appellant: E Smit
Instructed by: Trust Account Advocate
For the respondent: No appearance.