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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A11/2025
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: NO
DATE 21 AUGUST 2026
SIGNATURE
In the matter between:
NYATHI REPLY
And
THE STATE
Appellant
Respondent
Coram: TEFFO J AND KEKANA AJ
Heard on: 21 MAY 2026
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is electronically circulated to the parties/their legal representatives by
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e-mail and by uploading it to the electronic file of this matter on Caselines. The date
for hand-down is deemed to be 21 August 2026.
JUDGMENT
KEKANA AJ (TEFFO J CONCURRING)
Introduction and background
[1] This is an appeal against the conviction and sentence imposed by the
regional court at Pretoria. The Appellant was sentenced to life imprisonment on 29
July 2024. He therefore has an automatic right to appeal in terms of section 309 of
the Criminal Procedure Act 51 of 1977.
[2] The Appellant was found to have had unlawful and intentional sexual
intercourse with the complainant, Ms M[...] B[...], to whom he was separated, and the
two had four children together at the time of the incident.
Submissions by parties
[3] In his argument, the Appellant attacks the credibility of the complainant ’s
evidence that:
3.1 she testified that he used the flat side of the knife to pull down her
pants, but contradicted herself thereafter when she testified that the
appellant placed the knife on her chest and used his other hand to
undress her pants;
3.2 she did not complain of rape when she reported to Mr S[...];
3.3 she did not complain of rape when she reported to Ms S[...] N[...];
3.4 she did not complain of rape when she report ed to the taxi marshals
who came to her assistance and apprehended the Appellant;
3.5 she did not complain of the rape to the Tshwane Metro Police officers at
the time they apprehended the appellant and took him to the police
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station; instead, s he only complained of abuse, assault and kidnapping ,
but never mentioned rape at the time;
3.6 the morning after the alleged incident , she was on her way to work , not
heading to the police station to open criminal charges regarding the
incident in casu at all. The charge of rape was laid as an afterthought.
[4] Respondent submits that:
4.1 despite some discrepancies in the evidence of the complainant as a
single witness, the court correctly found that such shortcomings did not
affect the credibility of the witness;
4.2 insignificant contradictions are expected from an honest but imperfect
recollection, observation and reconstruction of evidence;
4.3 while it is correct that the complainant did not report the incident to any
other person but decided to report it only upon arrival at the police station,
there exists no provision in law which compels her to report it to those
people, and that a delayed report cannot be the only reason for drawing a
negative inference against the complainant;
4.4 the evidence of the complainant on the use of force was corroborated by
Dr Mimbula and by Ms N[...] regarding timelines;
4.5 the evidence of the Appellant was not reasonably possibly true as it was
tainted with improbabilities, inconsistencies and recent fabrications;
4.6 it agrees with the Appellant that the learned magistrate misdirected
himself in finding that the appellant failed to prove the existence of
substantial and compelling circumstances in this matter.
Condonation
[5] The Respondent had filed its heads of argument late ; but because a
satisfactory explanation was provided, condonation thereof was granted unopposed.
The Evidence
[6] The complainant’s evidence is that she was sleeping with her children in her
shack when t he Appellant scaled the perimeter fence and attempted to force the
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window open. The complainant then opened the door for him , and he started to
threaten her with a knife , telling her that he wanted to kill her. The complainant then
ordered him to leave her shack , as they were separated and no longer in a
relationship.
[7] She went on to testify that t he Appellant then told her that he was going to
sleep with her that night and that she must get into bed. The Appellant refused, and
he then used the knife which he had in his possession to remove her pants. The
Appellant raped her with a condom , and after he ejaculated , he told her that he was
not satisfied and penetrated her again. She then opened a case of rape at the police
station on the same day of the incident.
[8] The Appellant denies raping the complainant; he told the trial court that in
both instances th e sexual intercourse was consensual . The Appellant testified that
he went to visit the complainant at her request, brought groceries, and later the two
had consensual sexual intercourse. He went on to testify that the reason for the
altercation in the morning after the alleged incident was that the complainant wanted
to take the kids to creche without bathing them , and he was not happy with the kids
going to school not bathed.
Ad Conviction
[9] The issue before this Court is whether the trial court erred in its finding that
the Appellant had sexual intercourse with the complainant without her consent. Put
differently, the issue is whether the trial court misdirected itself in finding that the
complainant did not consent to the sexual intercourse.
[10] The Appellant’s main ground of appeal against his conviction is that the trial
court erred in finding that the state proved its case beyond reasonable doubt . The
contention is that, in considering the peculiar set of facts involved in this matter, the
trial court misdirected itself in finding, on the evidence presented, that the state had
trial court misdirected itself in finding, on the evidence presented, that the state had
proved the Appellant's guilt beyond reasonable doubt despite the discrepancies in
the complainant’s testimony. In support of this argument, the reliance is based on
what the Appellant refers to as material contradictions between the evidence of the
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complainant and also contradictions in the evidence of Mr Shalang, the metro police
officer.
[11] The trial court, in considering the evidence before it, accepted that there were
some discrepancies in the complainant’s evidence. However, when considering
whether those discrepancies were so material as to destroy the state’s case, it found
they were not.
[12] This Court agrees with the trial court’s finding and the authority relied on S v
Mkohle1 that t he contradictions in the state’s evidence “are of a relatively minor
nature and the sort of thing to be expected from honest but imperfect recollection,
observation and reconstruction ”. It is this Court’s v iew that the re are no
contradictions regarding the violence or the use of a knife in the commission of the
offence. Any contradiction on whether the knife was used to remove the pants or was
placed on the chest is , in our view, not a material contradiction warranting the
destruction of the state’s case. Instead, what it confirmed with absolute certainty is
the use of a knife in the furtherance or commission of the offence. Th e use of a knife
was also corroborated by the medical evidence of Dr Mimbula, who confirmed the
cut on the complainant’s hand and a cut of her braids.
[13] As regards the evidence of the complainant, as a single witness, an accused
may, in terms of s ection 208 of the Criminal Procedure Act, be convicted of any
offence on the single evidence of any competent witness. Rumphff JA in S v
Webber2, which was quoted with approval in Stephens v S3:
“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, despite the fact that there are
shortcomings or defects or contradictions in the testimony, he is satisfied that
the truth has been told”
the truth has been told”
[14] Turning to the submission by the Appellant that the magistrate does not seem
to have exercised caution in the evidence of the complainant, this Court is of the
1 (639/88) [1989] ZASCA 98 (7 September 1989) para 13.
2 1971 (3) SA 754 (A) at 758.
3 (417/03) [2004] ZASCA 70.
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view that it is necessary to remember that the cautionary rule is a rule of practice, not
a rule of law, and that in applying the cautionary rule it is well to have regard to the
warning of Holmes JA in the judgment of S v Artman4.
“While there is always need for caution in such cases, the ultimate
requirement is proof beyond reasonable doubt; and courts must guard against
their reasoning tending to become stifled by formalism. In other words, the
exercise of caution must not be allowed to displace the exercise of common
sense”.
[15] In S v Bellingham5 it was found that:
“it has been said more than once that the exercise of caution must not be
allowed to displace the exercise of common sense”
[16] There is uncontested evidence of violence before the incident, including but
not limited to jumping the perimeter fence, a broken window and forced entry into the
complainant’s shack, all committed by the Appellant , confirming the use of force and
again in the morning after the incident, which forced the complainant to involve other
persons to rescue her. I t cannot be true that , in the middle of these multiple acts of
violence and the use of force carried out by the Appellant against the complainant,
there was some island of consent where no force was used and that, somehow, the
complainant gave consent to sexual intercourse. The events on the day were
adumbrated by too much violence and the use of force for consent to be obtained.
[17] It should also be kept in mind that the trial court made factual and credibility
findings in favour of the state’s evidence. It found the evidence of the state witnesses
to be credible and satisfactory despite the discrepancies. The trial court found in all
respects that the testimony of the state witnesses was true. It further made factual
findings that the Appellant had sexual intercourse with the complainant without her
consent.
[18] It is trite that appellate courts are reluctant to interfere with the factual and
[18] It is trite that appellate courts are reluctant to interfere with the factual and
credibility findings made by trial courts unless there are shown to be clearly wrong or
based on material misdirection. 6 Bearing in mind the advantage that a trial court has
4 1968 (3) SA 339 (A) at 341C.
5 1955 (2) SA 566 (A)at 569.
6 S v Monyane 2008(1) SACR 543 (SCA) para 15.
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of seeing, hearing and appraising a witness, it is only in exceptional cases that this
Court will be entitled to interfere with a trial court's evaluation of oral testimony.7
[19] This Court cannot find the findings of the trial court to be clearly wrong or
based on material misdirection. The complainant’s evidence was corroborated by
that of Dr Mimbula. The Appellant’s version, it is agreed with the trial court, cannot be
reasonably possibly true. This Court finds it difficult to reconcile the events with what
the Appellant alleges, that he was invited by the complainant, but on arrival, he had
to use force to access the premises, jump the perimeter fence, break the window
and force his entry into the shack by pushing the door . It is not in dispute that the
Appellant had a knife with him, and the same knife somehow happened to cut the
complainant's hand. These actions cannot be reconciled with that of a person who
came at the request of the complainant, as argued by the Appellant.
[20] Regarding the reporting of rape as an af terthought, as argued by the
Appellant, and that the magistrate misdirected himself in relying on section 59 of Act
32 of 2007 . Section 59 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 states that:
“In criminal proceedings involving the alleged commission of a sexual offence,
the court may not draw any inference only from the length of any delay
between the alleged commission of such offence and the reporting thereof”.
[21] This Court agrees with the trial court that this was not an afterthought but
rather a delayed report of the crime. The complainant met a lot of people during the
morning after the incident but may have lacked a comfortable space to report the
crime of rape. Rape is a crime that a victim thereof may not simply open up to
everyone about it but may need some secluded space to open up about it. The
secluded space referred to may not be there on the street as the complainant meets
secluded space referred to may not be there on the street as the complainant meets
with all these people but may be there once she reaches a secure environment , a
police station, where there exist even specialised units to deal with rape cases.
There must be a reason specialised units were established within police stations to
deal with the reporting and handling of rape cases. The unique trauma victims of
rape require a special space with a person specifically trained to handle the matter.
7 S v Francis 1991 (1) SACR 198 (A) at 204e.
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[22] Regarding the submission by the Appellant that the complainant does not
inform the court the reason for the quarrel and the motive for the Appellant to follow
her with Ms N[...] up to the point where the Appellant is assaulted and apprehended
by taxi marshals, we find this to be immaterial as this happened after the incidents of
rape and does not take away the fact that the Appellant went to the complainant’s
residence and forced to have sexual intercourse with her without her consent.
[23] The statement by the Appellant that the complainant had in the past told him
that she wanted to have him imprisoned for a very long time, is found wanting, not
consistent with the actions of the complainant, as the same complainant testified on
behalf of the Appellant in mitigation of sentence.
[24] This Court agrees with the Appellant that the magistrate misdirected himself in
finding on the rape charges that the evidence of the complainant was corroborated
by that of Ms N[...]. Ms N[...]’s evidence did not corroborate the complainant on the
rape allegations. However, this we find not to be material in that the testimony of the
complainant is supported by the evidence of Dr Mimbula.
[25] This Court have to hold that the trial court correctly found that the sexual
intercourse in both instances was without the consent of the complainant, and that
the State proved its case beyond reasonable doubt. The appeal on conviction is, as
a result, dismissed.
Ad Sentence
[26] In the case of S v Rabie8 it was stated by Holmes JA that:
“In every appeal against a sentence, whether imposed by a magistrate
or a Judge, the Court hearing the appeal -
(a) should be guided by the principle that punishment is "pre -
eminently a matter for the discretion of the trial Court"; and
(b) should be careful not to erode such discretion; hence the further
principle that the sentence should only be altered if the
discretion has not been "judicially and properly exercised."
8 1975(4) SA 855 (A).
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[27] The question, therefore, is whether this Court has the authority to alter the
sentence of life imprisonment imposed by the trial court. Put differently, the question
is whether the discretion of the trial court has not been judicially and properly
exercised.
[28] This Court will only interfere with the sentence imposed by the trial court
where there has been an irregularity that results in a failure of justice; that the court
below misdirected itself to such an extent that its decision on sentence is vitiated; or
the sentence is so disproportionate or shocking that no reasonable court could have
imposed it9.
[29] The Appellant was convicted of two counts of rape read with the provisions of
section 51(1) of the Criminal Law Amendment Act , Act 105 of 1997 (CLAA), which
provides that:
“[n]otwithstanding 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 Part I of Schedule 2, to life
imprisonment.”
[30] In terms of section 51(3) of the CLAA , the trial court has discretion to impose
a lesser sentence than the one prescribed by law, provided there are substantial and
compelling circumstances which justify the imposition of a lesser sentence.
[31] It is argued on behalf of the Appellant that the learned magistrate misdirected
himself in finding that the Appellant failed to prove the existence of substantial and
compelling circumstances in this matter. Further that the trial court was too harsh in
imposing a sentence of life imprisonment.
[32] It is trite that a material misdirection by the trial court vitiates its exercise of its
discretion. In S v Malgas, the Supreme Court of Appeal held that:
“Where material misdirection by the trial court vitiates its exercise of that
discretion, an appeal court is of course entitled to consider the question of
sentence afresh. In doing so, it assesses sentence as if it were a court of first
sentence afresh. In doing so, it assesses sentence as if it were a court of first
9 S v Bogaards 2013 (1) SACR 1 (CC) at para 41.
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instance and the sentence imposed by the trial court has no relevance. As it is
said, an appellate court is large”.10
[33] The trite traditional factors applicable to sentencing are the personal
circumstances of the offender (this would include mitigating and aggravating factors);
the nature and gravity of the offence; and the interests of society. 11 In determining
the sentence to be imposed, the purpose of sentencing, being prevention, retribution,
reformation and deterrence, must also be taken into account.12
[34] The personal circumstances of the appellant tendered in mitigation of
sentence are that:
34.1 he was 34 years old at the time of sentence;
34.2 he is single and has four minor children with the complainant in this matter;
34.3 he is a first offender;
34.4 he dropped out of school in Grade 11 in Mozambique;
34.5 before his arrest, he secured employment at MCD Construction Company
as a supervisor and earned R2500.00 per week;
34.6 he supported his children financially;
34.7 he was kept in custody awaiting trial for a period of about two years.
[35] Further submissions made on behalf of the Appellant were that the
complainant did not suffer severe and long lasting physical, psychological and
emotional harm, the fact that the Appellant and the complainant were in an intimate
relationship for years and lived together as husband and wife before separation and
that they had a total of four children together, renders this rape offence as less
severe warranting or deserving of characterization of less serio us or not the worst
type of rape. Furthermore, the Appellant apologised to the complainant for abusing
her, and the complainant had forgiven him, as she even testified as the Appellant’s
witness during his sentencing that he be given a non-custodial sentence.
[36] Section 51(3) of the CLAA provides as follows:
“If any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which justify the
substantial and compelling circumstances exist which justify the
10 S v Malgas 2001 (2) SA 1222 (SCA) para 12.
11 Ibid at para 25F.
12 S v RO and Another 2010 (2) SACR 248 (SCA) para 30.
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imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances on the record of the
proceedings and must thereupon impose such lesser sentence.”
[37] It is this Court’s view that there are substantial and compelling circumstances
warranting a deviation from imposing the prescribed sentence. Although one can
consider the personal circumstances of the Appellant, his history with the
complainant, such factors cannot be overemphasised, in light of the gravity of the
offence and the interests of society. This Court is, thus, at large to look at sentence
afresh.
[38] Counsel for the Respondent conceded that the sentence of life imprisonment
was harsh and shockingly inappropriate given the history of the Appellant and the
complainant and the fact that the complainant testified for the Appellant during
sentencing and that the Appellant had apologised for his actions and the complainant
had forgiven her.
[39] Counsel for the Appellant submitted that the Appellant is a candidate for
rehabilitation. We find this submission to be exiguous, in that the Appellant did not
plead guilty; he also did not show any remorse. The Appellant may have regretted
his actions but did not show any remorse. Ponnan JA in S v Matyityi 13 states that:
“In order for the remorse to be a valid consideration, the penitence must be
sincere and the accused must take the court fully into his or her confidence.
Until and unless that happens the genuineness of the contrition alleged to
exist cannot be determined”.
[40] The circumstances under which this offence was committed , and the gravity
of the offence, a lengthy custodial sentence is still warranted. The offence was
humiliating and degrading ; hence, it was not easy for the complainant to open up
and report it to people around her. Evidence shows that s he was raped more than
once, in fact twice, on the second instance without a condom. She was threatened
once, in fact twice, on the second instance without a condom. She was threatened
with a knife and got cut on her hands in the process of this ordeal.
Conclusion
13 2011 (1) SACR 40 (SCA)
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[41] This Court concludes that the Appellant did not come at the request of the
complainant as he alleges, and that he had planned to carry out the offence as he
did; hence, he brought a knife. He used force to access the premises, forced himself
inside the shack and continued to force himself to have sexual intercourse with the
complainant. The complainant did not consent to have sexual intercourse with the
Appellant, and hence the cut she sustained on her hand. The trial court was correct
in its findings in convicting the Appellant of both counts of rape.
[42] The magistrate should have at least considered the fact that there was a
history between the Appellant and the complainant, that they had been intimate
before, and they both have four children together. However, this does not in any way
condone the conduct of the Appellant. A woman has the right to choose who she
gets to be intimate with, and that right cannot be taken away, not even by the person
with whom she previously had a relationship. This court agrees with the Appellant
that this may not be a worse type of rape. Also, the magistrate should have at least
considered the fact that the complainant had forgiven him and, in fact, testified in his
favour during sentencing. Under the circumstances, this Court is of the view that the
sentence of life imprisonment imposed was shockingly harsh . For this reason the
court has to interfere.
Order
[43] In the circumstances, the following order is made:
1. The appeal against conviction is dismissed.
2. The appeal on sentence is upheld, and the imposed sentence of life
imprisonment is set aside and replaced with a sentence of 20 years
imprisonment on both counts.
3. The sentences on both counts are to run concurrently.
4. The sentence is to be ante-dated to the date of 29 July 2024.
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________________
ND KEKANA
ACTING JUDGE OF THE HIGH COURT
I agree, it is so ordered.
__________________
MJ TEFFO
JUDGE OF THE HIGH COURT
Appearances
Counsel for the Appellant: Adv JL Kgokane
Instructed by Legal Aid South Africa
Counsel for The State: Adv D Molokomme
Instructed by Director of Public Prosecutions