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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: A222/2025
In the matter between:
JOHN KEKANA APPELLANT
and
THE STATE RESPONDENT
Delivered: This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines. In the event that there is a discrepancy
between the date the judgment is signed and the date it is uploaded to CaseLines,
the date the judgment is uploaded to CaseLines is deemed to be the date that the
judgment is handed down.
JUDGMENT
VAN DER SCHYFF J
Introduction
[1] The appellant was arraigned in the Regional Court, Pretoria, on five counts arising
from events which occurred in Mamelodi during the early hours of 1 January 2015.
[1] REPORTABLE: NO
[2] OF INTEREST TO OTHER JUDGES: NO
[3] REVISED: NO
Date: 19 August 2026 E van der Schyff
Count 1 was kidnapping. Count 2 alleged that he was an accomplice to the rape of
the complainant by unidentified men. Counts 3 and 4 were separate counts of rape
allegedly committed by the appellant at his residence. Count 5 was robbery.
[2] The appellant pleaded not guilty to all the counts. In respect of the sexual
intercourse at his residence, he admitted penetration but maintained that it was
consensual. He denied criminal participation in the complainant’s abduction and
gang rape and claimed that he drove the vehicle because he had been compelled to
do so.
[3] On 13 June 2018, the Regional Magistrate convicted the appellant of kidnapping,
being an accomplice to rape, and two counts of rape. He was acquitted of robbery.
On 23 August 2018, he was sentenced to five years’ imprisonment for the kidnapping
count and to life imprisonment for each of the three rape -related counts. The
sentences on counts 1 to 3 were ordered to run concurrently with the sentence on
count 4, resulting in an effective sentence of life imprisonment.
[4] This is an automatic appeal against both conviction and sentence. The princip al
issues are whether the incomplete record is nevertheless adequate for the fair
determination of the appeal; the effect of the appellant’s automatic right of appeal;
whether the trial court materially misdirected itself in its evaluation of the evidence;
and whether there is a basis to interfere with sentence.
The incomplete record
[5] The appeal record is incomplete. The transcription does not contain the formal
plea proceedings and omits the commencement of the complainant’s evidence on 2
November 2015. The transcript records that the proceedings commenced at
approximately 12h15, whereas the available transcription begins at 13h47.
[6] When the matter previously served before this Court, an order was granted
directing the reconstruction of the missing portions and the correction of the
duplicated material. Significantly, that order expressly recorded that “the appellant or
duplicated material. Significantly, that order expressly recorded that “the appellant or
his legal representatives carries the final responsibility to ensure that the appeal
record is in order”. Despite the order, the missing material was not reconstructed and
substantially the same record was re-enrolled.
[7] Section 35(3)(o) of the Constitution guarantees every accused person the right of
appeal to, or review by, a higher court. That right must be practical and effective. An
accused is therefore entitled to a record adequate for the proper exercise of the right
of appeal. The question is not whether the record is a perfect reproduction of
everything that occurred, but whether it is sufficient to enable the appeal court to
adjudicate the issues fairly. The nature and materiality of the omissions must be
assessed in relation to the issues to be determined.1
[8] Phakane is particularly instructive. The decisive evidence of the principal State
witness was absent from the appeal record and could not be reconstructed. Although
the trial court had summarised portions of that evidence in its judgment, the summary
did not reveal how the witness had been cross -examined on a material conflict
between her oral evidence and her police statement, whether she had explained the
conflict, or whether any explanation was acceptable. The Constitutional Court held
that an appellate court could not fairly evaluate the trial court’s preference for that
witness’s evidence without the missing material.2
[9] The Constitutional Court accordingly held that the failure to furnish an adequate
record rendered the right to a fair appeal nugatory or illusory. Where a just hearing of
the appeal is impossible through no fault of the appellant and the defect cannot be
rectified, the conviction cannot stand. The trial proceedings, conviction and sentence
in Phakane were set aside.3
[10] Phakane does not establish that every omission from a criminal record
invalidates the proceedings. It affirms the fact -specific test in Chabedi: whether the
available record is adequate for proper consideration of the particular appeal. The
available record is adequate for proper consideration of the particular appeal. The
enquiry turns on the nature of what is missing, the role it played in the conviction, and
whether the appeal court can nevertheless test the trial court’s reasoning and the
grounds of appeal fairly.
1 S v Chabedi 2005 (1) SACR 415 (SCA) paras 5 -6; S v Schoombee and Another 2017 (2)
SACR 1 (CC) paras 28 and 29; S v Phakane 2018 (1) SACR 300 (CC) paras 20 and 39.
2 Phakane paras 27-37.
3 Phakane paras 38-41 and 46.
[11] The present matter differs materially from Phakane. The missing portion here is
the commencement of the complainant’s evidence, not the entirety of the decisive
witness’s testimony. The available record contains the balance of her evidence and
her extensive cross -examination, the evidence of the corroborating witnesses , the
appellant’s evidence and that of his brother , the parties’ full addresses , and a
detailed judgment recording the material evidence, concessions, disputes,
inconsistencies and reasons for the credibility findings. No identified material
contradiction is concealed from this Court merely because the opening portion is
absent.
[12] The absence of the formal plea proceedings causes no substantive uncertainty.
The Regional Magistrate recorded in her judgment that the appellant pleaded not
guilty to all counts , that he tendered a plea explanation in respect of the sexual
intercourse at his residence , and that his case was that the intercourse was
consensual. That is consistent with his evidence, the cross -examination of the State
witnesses, the defence address and the manner in which the case was conducted.
[13] It is therefore common cause that the appellant denied all criminal liability but
admitted two acts of sexual intercourse with the complainant at his residence, relying
on consent. I agree with the respondent that no prejudice arises from the absence of
the formal plea proceedings.
[14] The missing commencement of the complainant’s evidence requires closer
attention. When the recording resumed, the prosecutor placed on record a recap of
the evidence already tendered.
[15] A prosecutor’s recap is not itself a substitute for sworn testimony. It is
nevertheless relevant in determining the scope of the omission, particularly where
the missing evidence is reflected in the subsequent cross -examination, in the
summaries of both parties, and in the trial court’s reasons.
[16] The extent of the record materially strengthens the conclusion that the appeal
[16] The extent of the record materially strengthens the conclusion that the appeal
can be fairly adjudicated. The prosecutor’s address contains a detailed summary of
the complainant’s account and the defence case. The defence address identifies the
common-cause facts, isolates the disputes concerning common purpose in relation
to the kidnapping , accomplice liability, in relation to the gang rape, duress and
consent, and engages directly with the probabilities. The Magistrate’s judgment then
summarises the evidence of every witness, records the concessions made under
cross-examination, identifies the common -cause and disputed facts, and explains
why the State’s evidence was accepted and the defence version rejected.
[17] The appellant’s heads of argument likewise formulate substantive challenges to
the convictions. They contend that common purpose in relation to the kidnapping and
accomplice liability in relation to the gang rape were not established and that the
version of consensual intercourse was reasonably possibly true. Those grounds can
be evaluated on the available record.
[18] The omission remains regrettable. The failure to reconstruct the record despite a
court order is serious. That consideration cannot, consistently with Phakane, be used
mechanically to defeat the appeal or to cure a record that is constitutionally
inadequate. It does, however, explain why the Court must now determine adequacy
on the existing material rather than assume that a further postponement will yield a
reconstructed record.
[19] Having considered the nature of the omissions, the role of the missing evidence
in the convictions, the available portion of the complainant’s testimony and cross -
examination, the corroborating evidence, the parties’ full addresses, the detailed
judgment, and the grounds advanced on appeal, I am satisfied that the record
permits this Court to test the Magistrate’s findings and to determine the appeal fairly.
Unlike Phakane, the missing material does not prevent scrutiny of a decisive
contradiction or deprive this Court of the evidential basis upon which the trial court
preferred one version over another.
[20] A further postponement is unlikely to produce a better record. The offences
occurred in January 2015, and the trial judgment was delivered in June 2018. The
appellant has been serving an effective sentence of life imprisonment since August
appellant has been serving an effective sentence of life imprisonment since August
2018. The constitutional right is to a fair appeal, not to indefinite delay in pursuit of a
perfect record. Because the available record is adequate, the interests of justice
favour a careful determination of the appeal on the record as it stands.
The automatic appeal
[21] The appellant was sentenced to life imprisonment by a regional court. Section
309(1)(a) of the Criminal Procedure Act 51 of 1977 therefore confers an automatic
right of appeal.
[22] In Ncitha v The State4 the Supreme Court of Appeal explained that, following the
retrospective amendment effected by the Judicial Matters Amendment Act 42 of
2013, an accused sentenced to life imprisonment by a regional court has, with effect
from 1 April 2010, an automatic appeal and need not obtain leave under ss 309B or
309C.
[23] Ncitha further establishes that the automatic appeal encompasses both the
conviction and the resultant sentence or order. An appellate court may not determine
one component and leave the other unresolved. The present appeal must therefore
be adjudicated in relation to both conviction and sentence.
[24] The notice of appeal is essentially of no value, as no specific grounds of appeal
are listed therein. Since this is an automatic appeal, however, and since grounds of
appeal were identified in the appellant’s heads of argument, this appeal can be
considered.
Grounds of appeal
[25] The appellant’s principal complaint is that the incomplete record prevents the
proper determination of the appeal and, under Phakane, infringes his constitutional
right to a fair appeal. For the reasons already given, the governing principle is
accepted but the factual contention cannot be sustained . The present record is
adequate for a fair and meaningful adjudication of the issues raised.
[26] On conviction, the appellant contends that the evidence did not prove that he
acted in common purpose with the men who abducted the complainant; that his
presence and conduct did not establish accomplice liability for the gang rape; that the
men’s departure without him indicated that he was not one of them; and that his
4 (987/2024) [2026] ZASCA 53 (15 April 2026).
version of duress and subsequent consensual intercourse was reasonably possibly
true.
[27] The appellant also relies upon the fact that the complainant did not implicate him
as one of the men who physically raped her at the primary scene and argues that his
remaining in the vehicle was consistent with non-participation.
[28] The respondent contends that the appellant’s conduct in stopping and waiting
while the complainant was chased, driving away at high speed after she had been
forced into the vehicle, taking the group to an isolated area, failing to escape or seek
assistance when the vehicle struck a rock, and remaining present while the
complainant screamed and was raped established his knowing participation. The
respondent further contends that the version of consensual intercourse was
irreconcilable with the complainant’s condition, her immediate report and her flight
from the appellant’s room.
Appellate principles
[29] The powers of a court of appeal to interfere with factual and credibility findings
are limited. In R v Dhlumayo and Another ,5 the Appellate Division emphasised the
advantages enjoyed by a trial court which sees and hears the witnesses and is
immersed in the atmosphere of the trial. In the absence of a material misdirection,
the trial court’s factual conclusions are presumed to be correct and will be disturbed
only where the recorded evidence shows them to be clearly wrong.
[30] The principle does not render credibility findings immune from scrutiny. An
appeal court must still examine whether the findings are supported by the evidence
and the probabilities. It is, however, only in exceptional cases that a court will be
entitled to interfere with a trial court’s evaluation of the oral testimony.6
[31] The evidence must be considered holistically. The State’s case and the
accused’s version are not to be evaluated in separate compartments. The proper
5 1948 (2) SA 677 (A) at 696-697.
6 S v Francis 1991 (1) SACR 198 (A) at 204E-F.
enquiry is whether, on all the evidence, the State proved guilt beyond reasonable
doubt and whether the accused’s version is reasonably possibly true.7
[32] An accused bears no onus to prove innocence. Improbabilities or falsehoods in
the defence case do not reverse the onus. They are relevant only as part of the
overall assessment of whether the State has discharged its burden. A version may
be rejected only if it is so improbable that it cannot reasonably possibly be true.8
[33] The complainant was a single witness in relation to important aspects of the
offences. Section 208 of the Criminal Procedure Act permits a conviction on the
evidence of a single competent witness, but the evidence must be approached with
caution and assessed for reliability in the light of the probabilities and any
corroboration. The cautionary approach is a rule of practice and must not displace
common sense.
[34] Contradictions must be evaluated in context. Not every difference constitutes a
material contradiction. Their seriousness depends upon their nature, the
circumstances in which the evidence was given, the lapse of time and whether
proper cross -examination could have affected the assessment of credibility and
reliability.9
The evidence and the material common-cause facts
[35] The Magistrate correctly identified the following material facts as common cause.
The complainant and her boyfriend were accosted by men travelling in a white
Mazda. The appellant was the driver. The complainant was forcibly placed in the
vehicle. The vehicle travelled along a gravel road towards a bushy area and collided
with a rock. The complainant was raped by men who had been passengers in the
Mazda. She later went to the appellant’s residence. The appellant had two acts of
sexual intercourse with her, using condoms. He was arrested at his residence later
that morning.
7 S v Van der Meyden 1999 (1) SACR 447 (W) at 448F-450B.
8 S v Shackell 2001 (2) SACR 185 (SCA) at 194G-I.
9 S v Mkohle 1990 (1) SACR 95 (A) at 98F-G.
[36] The principal disputes were whether the appellant acted in common purpose in
the kidnapping; whether he intentionally assisted the perpetrators of the gang rape;
whether he forced the complainant to accompany him to his residence; and whether
the intercourse there was consensual.
[37] The complainant testified that the Mazda approached at high speed. Several
occupants alighted, swore at her, chased her and her boyfriend, and forced her into
the vehicle. The appellant remained behind the steering wheel. She was undressed
in the vehicle while it travelled towards the bushes. After the vehicle struck a rock,
she was raped by the men while the appellant looked on.
[38] After the perpetrators left, the appellant ordered her to accompany him, pulled
her by the arm and dragged her towards his residence. She was weak, shocked , and
unable to resist effectively. In his room, he threatened that his brothers would kill her
if she screamed. He removed condoms, ordered her to undress and penetrated her
on separate occasions. When he fell asleep, she escaped.
[39] The complainant returned home barefoot, dirty, crying profusely and unable
initially to speak properly. Her sister, T[...], persuaded her to report the matter. The
complainant directed the police to the appellant’s residence, where he was found
asleep and arrested.
[40] T[...] confirmed that the complainant was moderately under the influence earlier
in the evening but remained aware of her surroundings. When the complainant
returned, she was barefoot, dirty, hysterical and crying so intensely that she could
not give a coherent account immediately. The J88 also recorded that she was
anxious.
[41] The complainant’s boyfriend confirmed the approach of the Mazda, the pursuit
and the fact that the vehicle drove away. He later followed the gravel road and found
the damaged Mazda near the rock, but the complainant was no longer there.
[42] The appellant testified that he had picked up the men as passengers. When they
[42] The appellant testified that he had picked up the men as passengers. When they
chased and returned with the complainant, he drove because the men seated in front
had threatened him with knives. He denied seeing the complainant being raped,
although he admitted hearing her scream for help and accepted that she had been
forcibly taken and did not wish to be there.
[43] According to him, after the men left, the complainant said that she was shocked
and needed somewhere to calm down. He offered to take her to his residence. She
agreed, spoke to him normally on the way, and later initiated sexual intercourse. He
testified that they had two rounds of intercourse, after which both fell asleep.
[44] The appellant’s brother, Daniel Kekana, testified that he saw the appellant and a
woman in the room and that she appeared merely tired. He described clothing
materially different from that which the complainant had worn. He conceded that he
had discussed the case with the appellant, did not see them enter the house, could
not dispute that the complainant had been dragged into the room, and that his
account differed from that of the appellant on material aspects.
The Magistrate’s approach
[45] The judgment demonstrates that the Magistrate set out the evidence with care
and accurately isolated the disputes. She summarised the evidence of the
complainant, T[...], the complainant’s boyfriend, the appellant and Daniel Kekana.
She recorded material concessions made in cross-examination and distinguished the
common-cause facts from those requiring determination.
[46] The Magistrate expressly recognised that the onus remained upon the State
throughout and that the appellant bore no burden to prove his innocence.
[47] She further referred to the three interrelated considerations of credibility,
reliability and probabilities, drawing upon Stellenbosch Farmers’ Winery Group Ltd
and Another v Martell et Cie and Others .10 Although that authority arose in civil
proceedings, the Magistrate did not apply a civil standard of proof. She repeatedly
returned to the question of whether the State had proved guilt beyond reasonable
doubt and whether the appellant’s version was reasonably possibly true.
[48] The Magistrate was alive to the fact that the complainant was a single witness
concerning important parts of the case. She reminded herself that cautionary rules
concerning important parts of the case. She reminded herself that cautionary rules
are rules of practice rather than rigid formulae, that their purpose is to reduce the risk
of wrongful conviction, and that caution should not displace common sense.
10 2003 (1) SA 11 (SCA) para 5.
[49] She identified the inconsistency concerning whether the appellant raped the
complainant twice or three times. She did not ignore it. She considered its weight in
the context of the whole case and concluded that it was not destructive because the
appellant himself admitted two acts of intercourse and was charged with two counts
of rape. The finding was accordingly confined to two separate acts.
[50] The Magistrate found the complainant reliable because she testified logically and
confidently, maintained her account under extensive cross -examination, and made
concessions adverse to the State’s case. In particular, she admitted consuming
alcohol and expressly did not implicate the appellant as one of the men who
physically penetrated her at the primary scene. That restraint supported the finding
that she was not seeking indiscriminately to implicate him.
[51] The Magistrate found T[...] and the complainant’s boyfriend to be credible
witnesses. Their evidence corroborated the abduction, the damaged vehicle, the
complainant’s immediate condition and the consistency of her report.
[52] The Magistrate was equally conscious that improbabilities in the appellant’s
evidence did not impose an onus upon him. She nevertheless found him to be a poor
and evasive witness. When confronted with inconsistencies between the version put
to the State witnesses and his evidence in chief, he blamed his former legal
representative. The Magistrate found that he was determined to portray the
complainant as content and untroubled, even on collateral matters where that
portrayal produced improbable evidence.
[53] Her observation bears repetition: “The accused was so determined to prove that
all was well with the complainant that even on the aspects which were not material,
he gave improbable evidence.”
[54] The Magistrate found Daniel Kekana biased and intent upon exonerating his
brother. His evidence differed materially from the appellant’s concerning where and
brother. His evidence differed materially from the appellant’s concerning where and
how he first saw them, and his description of the complainant’s clothing was wholly
inconsistent with the uncontested evidence. The Magistrate rejected his evidence.
[55] The judgment thus reflects an appreciation of the correct legal tests, an
engagement with the weaknesses in both cases, and a reasoned explanation for the
acceptance and rejection of the respective witnesses. It is not a case in which the
trial court merely announced credibility conclusions without reference to the
probabilities.
Duress and the appellant’s knowledge
[56] The appellant’s duress defence was unsatisfactory at several levels. The
allegation of a knife threat was not mentioned in his evidence in chief. It emerged
only under cross-examination, when he said that two men seated in front had knives.
He explained the omission by saying that he had not been asked specifically about
knives.
[57] That was no minor omission. The alleged threat was the foundation of his claim
that he unwillingly transported the complainant. A person relying upon compulsion
would ordinarily be expected to explain the nature, source and duration of the threat
when setting out his defence.
[58] The appellant’s conduct before the alleged threat is also significant. On his
version, the men asked him to stop, alighted, chased a woman who was unknown to
him, and returned after forcibly apprehending her. He remained in control of the
vehicle and waited. The alleged knife threat arose only after she had been brought
back. The Magistrate was entitled to regard his failure to drive away before then as
inconsistent with the role of an uninvolved taxi driver.
[59] After the complainant was forced into the vehicle, the appellant drove away at
high speed towards a secluded bushy area. The complainant’s evidence that no one
directed him where to go at that stage was not displaced. The route and speed were
circumstances from which his knowledge and association could properly be inferred.
[60] When the vehicle struck the rock and became immobilised, the appellant had a
further opportunity to escape or seek help. On his own version, the men moved away
from the vehicle with the complainant. He remained behind while she screamed for
help. He did not run, summon assistance, intervene, or later report the alleged
kidnapping and rape.
[61] His explanation that different people react differently to danger is true at a
[61] His explanation that different people react differently to danger is true at a
general level but does not render every claimed response reasonably possible. His
entire course of conduct had to be assessed, including the belated knife allegation,
his continued presence, his admitted awareness that the complainant had been
forcibly taken, his hearing of her screams, and his subsequent conduct.
[62] The Magistrate’s finding that the appellant was not acting under duress was
firmly grounded in the evidence and the probabilities. We share that conclusion.
Kidnapping and accomplice liability
[63] The basis of criminal liability differed in respect of Counts 1 and 2 . The
kidnapping charge in Count 1 was pursued upon common purpose. The Magistrate
referred in this regard to S v Mgedezi and Others 11 which requires, in the absence of
a prior agreement, proof of presence at the scene, awareness of the unlawful
conduct, an intention to make common cause, an act of association, and the
requisite mens rea.
[64] The appellant was present and in control of the vehicle. He stopped and waited
while the complainant was chased; drove away after she had been forced inside;
transported her at speed to an isolated area; and remained present while she was
detained and raped. Those were not neutral acts of presence. They materially
enabled the deprivation of her freedom.
[65] The appellant’s alleged ignorance is incompatible with his own concessions. He
accepted that she had been forcibly taken and did not want to be there. He heard her
scream for help. His conduct before, during and after the abduction established
intentional association with the kidnapping.
[66] The Magistrate also treated the deprivation of liberty as continuing until the
complainant escaped from the appellant’s residence. Once the other men departed,
the appellant himself pulled and dragged her to his home. Her evidence that she
resisted and did not know where he was taking her was not displaced. Even
independently of common purpose at the initial scene, that conduct constituted a
continuation of the unlawful deprivation of her freedom.
11 1989 (1) SA 687 (A).
[67] Count 2 rested on a different basis. The appellant was not charged with the rape
committed by the unidentified men on the basis of common purpose , nor was it
alleged that he personally penetrated the complainant at the primary scene. He was
charged and convicted as an accomplice to rape. An accomplice intentionally and
unlawfully furthers the commission of a crime by another, although not satisfying the
definitional conduct of the crime itself.12
[68] The appellant’s assistance consisted of providing and controlling the vehicle
used to abduct the complainant, driving her to the isolated place where the rapes
occurred, removing her from the possibility of public intervention, and remaining
present while the perpetrators carried out the rapes. The Magistrate accepted the
complainant’s evidence that he watched. His conduct afforded the perpetrators the
opportunity and means to commit the crime. It materially facilitated the rape.
[69] The fact that the perpetrators later left without him does not neutralise the
assistance already rendered. Nor was it necessary for the State to prove that the
appellant knew them beforehand. Accomplice liability depends upon intentional
furtherance of the offence, not prior friendship or membership of a pre-existing group.
[70] The conclusion that the appellant knowingly facilitated the gang rape was
justified beyond reasonable doubt.
The rapes at the appellant’s residence
[71] The only issue concerning the two acts of penetration at the appellant’s
residence was consent. The complainant testified that the appellant dragged her
there, threatened her, ordered her to undress and penetrated her without consent.
The appellant claimed that she accompanied him voluntarily and initiated sexual
intercourse.
[72] The statutory definition of consent is a voluntary or uncoerced agreement. The
Magistrate correctly recognised that real consent must be freely, voluntarily and
consciously given.
12 See S v Kimberley and Another 2004 (2) SACR 38 (E) para 10.
[73] The appellant’s version must be considered against the whole sequence. He
knew that the complainant had just been forcibly abducted and gang raped. He
admitted that she was emotionally distressed, shocked or confused. Yet he claimed
that while walking to his house her emotional state changed, that she conversed
happily, and that she initiated sex.
[74] That account was contradicted by the complainant’s evidence, her sister’s direct
observations, the J88 notation that she was anxious, and the appellant’s own
concession that the evidence concerning her condition was inconsistent with his
assertion that she had become happy.
[75] The Magistrate did not reason that a person who has experienced sexual
violence can never thereafter consent to intercourse. Her conclusion was case -
specific. It rested upon the complainant’s accepted evidence that she was dragged
and threatened; her immediate emotional and physical condition; her flight at the first
opportunity; her prompt report; and the inherent improbability of the appellant’s
account in the particular circumstances.
[76] The complainant’s flight is especially telling. If she had voluntarily sought refuge
with the appellant and consensually engaged in intercourse, her escape as soon as
he fell asleep, her return home barefoot and dirty, and her immediate report
identifying him as a perpetrator would be inexplicable. Those facts are entirely
consistent with her account.
[77] The appellant’s own legal representative was unable, during address, to offer a
coherent explanation for why a complainant who had allegedly been rescued and
treated with empathy would immediately return with the police and identify the
appellant as a rapist.
[78] The Magistrate found that the two admitted acts of penetration were distinct. The
complainant’s initial reference to three rapes did not justify a third conviction, and the
appellant was charged with two counts. On the evidence, the Magistrate convicted
appellant was charged with two counts. On the evidence, the Magistrate convicted
on two separate acts, consistent with the appellant’s own admission that there had
been two rounds of intercourse.
[79] The State proved beyond reasonable doubt that the two acts occurred without
consent and that the appellant knew this. The appeal against both rape convictions
cannot succeed.
Conclusion on conviction
[80] The Regional Magistrate did not misdirect herself on the burden or standard of
proof. She considered the evidence holistically, applied caution to the complainant’s
evidence, addressed the discrepancies, and remained mindful throughout that the
appellant bore no onus.
[81] Her credibility and reliability findings are supported by the record and the
objective probabilities. The complainant’s evidence was materially corroborated by
her boyfriend concerning the abduction and damaged vehicle, by T[...] and the J88
concerning her immediate condition, and by the appellant’s own concessions
concerning her forcible abduction, screams and emotional distress.
[82] The appellant’s version required acceptance that he innocently waited while
passengers chased and forcibly apprehended a woman; drove her at high speed to
an isolated area only because of an inadequately explained threat; remained
unaware of the gang rape despite hearing her screams; failed to escape or seek
assistance when the vehicle became immobilised; then acted as her rescuer; and
that the recently gang -raped and visibly distressed complainant voluntarily
accompanied him, initiated sex, fled at the fir st opportunity and falsely accused him
immediately thereafter.
[83] Considered cumulatively, that version is not reasonably possibly true. The State
proved the appellant’s guilt beyond reasonable doubt.
[84] Applying R v Dhlumayo , there is no demonstrable and material misdirection
warranting interference with the trial court’s factual findings. On our own assessment
of the record, the convictions were correctly entered.
Sentence
[85] The automatic appeal encompasses an appeal against sentence. The appellant
was sentenced to five years’ imprisonment on the count of kidnapping and to life
imprisonment on each of the three rape -related counts. The Regional Court directed
that the sentences imposed on counts 1, 2 and 3 run concurrently with the sentence
imposed on count 4. The effective sentence is therefore one of life imprisonment
[86] Sentence is pre-eminently a matter for the discretion of the trial court. An appeal
court may interfere only where the sentencing court materially misdirected itself,
failed properly to exercise its discretion, or imposed a sentence so disproportionate
that the disparity is shocking, startling or disturbingly inappropriate.13
[87] Where a prescribed minimum sentence applies, all relevant circumstances must
be considered to determine whether substantial and compelling circumstances justify
a lesser sentence and whether the prescribed sentence is proportionate to the
offence, the offender and the interests of society.14
[88] The reasons for sentence demonstrate that the Regional Court undertook a
detailed and individualised assessment. It considered the submissions made on
behalf of both parties, a pre -sentence report compiled by the probation officer and a
victim-impact report. The court expressly applied the triad identified in S v Zinn 1969
(2) SA 537 (A), namely the personal circumstances of the offender, the nature of the
offences and the interests of society. It also considered the purposes of punishment,
the need to individualise sentence, the interests of the complainant and the principle
that punishment must fit both the offender and the crime, be fair to society and be
tempered with mercy.
[89] The appellant’s personal circumstances were fully canvassed. He was the third
of five siblings. His parents died while he was still young and he assumed
responsibility for the family. He left school after Grade 7 because the family was
responsibility for the family. He left school after Grade 7 because the family was
experiencing financial hardship and thereafter held various forms of employment,
eventually working as a taxi driver until his arrest. He was single, had a child from a
13 S v Malgas 2001 (1) SACR 469 (SCA) at para 12; Director of Public Prosecutions,
KwaZulu-Natal v P 2006 (1) SACR 243 (SCA) para 10.
14 S v Malgas , supra; S v Dodo 2001 (3) SA 382 (CC); S v Vilakazi 2009 (1) SACR 552
(SCA) para 15.
previous relationship, and was described as physically and psychologically healthy.
The court identified his age, family circumstances and the period spent in custody
awaiting trial as mitigating factors.
[90] The Regional Court was therefore not unaware of the appellant’s personal
history or the hardship which he had experienced. It nevertheless found that those
considerations were outweighed by the aggravating circumstances. That conclusion
cannot be faulted. Personal circumstances, even where deserving of sympathy, do
not exist in isolation and must be weighed against the gravity of the offences, the
offender’s degree of culpability and the interests implicated by the criminal conduct.
[91] The aggravating features were substantial. The appellant drove the vehicle in
which the complainant was forcibly taken from her companion and transported to a
secluded area. He facilitated the rape committed by the other men. After the
complainant had endured that assault, he took her to his home and raped her twice.
The sentencing court correctly regarded his exploitation of a person who had already
been subjected to extreme violence and was plainly traumatised and vulnerable as a
particularly serious aggravating circumstance. This was not a single, impulsive act.
The appellant’s conduct formed part of a sustained sequence of violations of the
complainant’s bodily integrity, dignity and sexual autonomy.
[92] The victim -impact report recorded that the complainant continued to suffer
trauma long after the offences. She experienced difficulty trusting men, feared that
disclosure of the offences might result in rejection by her partner, became emotional
and cried throughout the interview, and experienced the prolonged trial as a source
of secondary trauma. The Regional Court was entitled to take those consequences
into account. In doing so, it did not impermissibly elevate the complainant’s interests
above all other considerations. The impact of an offence upon its victim is an integral
above all other considerations. The impact of an offence upon its victim is an integral
component of a proportionate sentence.
[93] The court further considered the probation officer’s assessment that the
appellant did not accept responsibility, continued to maintain that the intercourse had
been consensual, presented risk factors and was not candid in the information which
he provided. The appellant had also been convicted and sentenced in September
2016 for another offence of rape. The latter conviction did not constitute a previous
conviction at the time when the present offences were committed. It was
nevertheless relevant to the probation officer’s assessment of his risk profile and
prospects of rehabilitation, provided it was not used retrospectively to increase his
moral blameworthiness for the present offences.
[94] The absence of remorse was also considered. An accused is entitled to plead
not guilty, to put the State to the proof of its case and to maintain innocence on
appeal. The exercise of those rights may not itself aggravate sentence. The Regional
Court’s reasoning is, however, more properly understood as recognising that the
appellant’s continued denial meant that genuine remorse and acceptance of
responsibility could not operate as mitigating factors. On that basis, no misdirection is
disclosed.
[95] In considering the seriousness of rape and the interests of society, the Regional
Court referred to applicable case law. 15 The Magistrate recognised both the
prevalence and gravity of sexual violence and the need for deterrence and the
protection of society. At the same time, it cautioned itself, with reference to S v Rabie
1975 (4) SA 855 (A), against approaching punishment in a spirit of anger. The
judgment, read as a whole, does not reflect a sentence driven by indignation rather
than principle.
[96] The Regional Court then considered the prescribed -sentence regime under s 51
of the Criminal Law Amendment Act 105 of 1997. The Magistrate recognised that the
prescribed sentence was the point of departure but that it remained necessary to
determine whether its imposition would be disproportionate in the circumstances of
the particular case. She also expressly considered the period spent in custody
awaiting trial.
[97] The appellant contends that the magistrate overemphasised the interests of the
complainant and of society and failed adequately to differentiate between the
individual offences. That submission is not borne out by the record. The court
identified the mitigating circumstances, evaluated the appellant’s prospects of
identified the mitigating circumstances, evaluated the appellant’s prospects of
rehabilitation, considered the degree of his participation as an accomplice and
addressed proportionality. It also moderated the cumulative effect of the individual
15 Among others, to Director of Public Prosecutions, North Gauteng v Thabethe 2011 (2)
SACR 567 (SCA), S v Chapman 1997 (3) SA 341 (SCA), S v Banda 1991 (2) SACR 352 (B),
S v Mhlakaza 1997 (1) SACR 515 (SCA) and S v Swart 2004 (2) SACR 370 (SCA).
sentences by ordering that the sentences on counts 1, 2 and 3 run concurrently with
the life sentence on count 4.
[98] Certain passages in the sentencing judgment are expressed in emphatic terms,
including the magistrate’s description of the case as among the worst that had come
before her and her conclusion that the appellant should be removed from society.
Those statements must be read in the context of the judgment as a whole. They
followed, rather than replaced, a detailed consideration of the appellant’s
circumstances, the offences, the reports placed before the court and the governing
authorities. They do not establis h that the sentencing discretion was exercised
capriciously or upon a wrong principle.
[99] The question remains whether, notwithstanding the absence of a material
misdirection, the effective sentence is so disproportionate as to warrant interference.
In my view, it is not. The complainant was kidnapped and transported to a secluded
place; the appellant materially facilitated the rape perpetrated by his companions;
and, after she had already endured that ordeal, he subjected her to two further rapes.
His conduct displayed sustained callousness and a grave disregard for her dignity
and bodily integrity. Against that background, the personal circumstances relied upon
do not constitute substantial and compelling circumstances rendering life
imprisonment unjust.
[100] The sentence is undoubtedly severe. Its severity, however, is commensurate
with the exceptional gravity of the offences and the appellant’s moral
blameworthiness. The prescribed sentence was not imposed mechanically, nor is it
disproportionate to the circumstances of the case. No material misdirection has been
shown and the sentence is not shocking or disturbingly inappropriate. The appeal
against sentence must accordingly fail.
ORDER
In the result, the appeal against conviction and sentence is dismissed.
____________________________
E VAN DER SCHYFF
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree
____________________________
N MAZIBUKO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
For the appellant: Adv L Augustyn
Instructed by: Legal Aid SA
For the fifth respondent: Adv A Coetzee
Instructed by: The Director of Public Prosecutions
Date of the hearing: 4 August 2026
Date of judgment: 19 August 2026