B.S v S (Appeal) (A252/2024) [2025] ZAGPPHC 1374 (15 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1374 | Noteup | LawCite sino index ## B.S v S (Appeal) (A252/2024) [2025] ZAGPPHC 1374 (15 December 2025) B.S v S (Appeal) (A252/2024) [2025] ZAGPPHC 1374 (15 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1374.html sino date 15 December 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: A252/2024 (1) Reportable: No. (2) Of interest to other judges: No (3) Revised. Date: 15/12/2025 Signature In the matter between: B[...] S[...]                                                 APPELLANT and THE STATE                                                 RESPONDENT Delivered : This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by e-mail and by uploading it to the electronic file of this matter on Caselines. The date and for hand-down is deemed to be 2 15 Deember 2025 JUDGMENT Ledwaba AJ (Moshoana J concurring ) Introduction [1]        In terms of section 309 of the Criminal Procedure Act 51 of 1977(the CPA) as amended by section 10 of Judicial Matter Amendment Act 42 of 2013, read with section 84(1)(a) of the Child Justice Act 75 of 2008 , [1] the appellant appeals against the conviction of rape imposed by the Regional Court sitting at Soshanguve (the trial court or court of first instance) on the 14 th of May 2024. [2]        These provisions give the appellant automatic right of appeal to the Full Bench of this division. [2] [3]        The charge preferred against the appellant stated that he was charged with rape in contravention of sections I ,56,57,58,59,60 and 61 of the Sexual Offences and Related Matters Act 32 of 2007 as amended (the Sexual Offences Act) read with section 94, 256 and 261 of the CPA, and further read with section 20 of the Children's Act 38 of 2005 . The allegation was that about or during December 2011 and at or near Soshanguve, the appellant did unlawfully and intentionally commit an act of sexual penetration with a five-year-old female L[...] K[...] M[...] (the complainant) by inserting his penis inside her vagina without her consent. [4]        At the time of her testimony, the complainat was sixteen years old. [3] The social worker's assessment report showed that the complaint would not be in a position to freely tesitify in an open court in the presence of the appellant. The report recommended that in terms of sections 170A and 158 of the CPA, the intermediary and Close Circuit Television (CCTV) camera be utilised. [5]        At the time of the incident, the appellant was fourteeen years. This made the provisions of the Criminal Law Amendment Act 105 of 1997 relating to the prescribed minimum sentence not applicable, despite the fact that the rape victim was a minor. [6]        The appellant pleaded not guilty and was convicted with rape in contravention of section 3 of the Sexual Offences Act. He was sentenced to five years imprisonment of which two years was suspended for five years on conditional that he is not convicted of similar offence committed during the period of suspension. In terms of section 103 of the Firearms Control Act 60 of 2000 , the appellant was declared unfit to own or possess a firearm. [7]        The appeal is based on the submission that the presiding magistrate erred: (a)       by not applying the cautionary rule to the evidence of the victim despite the fact that she was a child and single witness, (b)       in not finding that the complaint of rape was not voluntarily made and the evidence was procured through assault or torture which was evidence unconstitutionally obtained, (c)        in not finding that by assaulting and allegedly torturing the complainant, the conduct of the victim's mother rendered the evidence inadmissible as it constitute unconstitutionally obtained evidence and (d)       in finding that the state has proved its case beyond a reasonable doubt. [8]        In the heads of argument the appellant submits the additional basis of appeal as being that the presiding magistrate erred by: (a)       convicting the appellant on a charge which was repealed by Sexual Offences Act (b)       finding that the appellant had been properly identified (c)        finding that the witnesses could be relied upon to convict the appellant and , (d)       rejecting the appellant's version in the absence of contradictory evidence The respondent's case [9]        Having satisfied itself that the complainant understands the oath, the court administered an oath on the complainant. She testified that she was born on the 13 th October 2006 and that at the time of the incident in 2011 she was five years old. [10]      She further testified to the effect that she related the incident to few holidays after Christmas because that is the period her mother allows them to play outside. She said while on her way home, she met the appellant at the passage next to where he resides. She later explained that ii was one house away from B[...]'s place of residence. She identified the appellant with his first name B[...] and as the accused. Having asked her where her brother R[...] was and having respondent that she did not know, the appellant told her that R[...] had left his shoes at the appellant's place of residence and invited her to come and collect them. She walked with the appellant to his house where the appellant grabbed her by hand and put her inside his room. When she tried to scream, the appellant covered her mouth with his hand and pulled her to the bed. He then lifted her dress up, took her underwear off and put ii on the side of the bed. He jumped on top of her and took out his penis and forced it into her mouth. He took his penis out of her mouth and inserted it into her vagina. He then started going up and down on top of her a few times and started looking from the direction of his window. He froze for a few seconds, got off her and told her to put on her clothes. As she was about to run, he grabbed her by her hand and told her that should she tell anyone about what happened, he would hurt her brother. [11]      She replied that at the time the appellant lifted her dress up and took her underwear off, she was facing the celling. [12]      The complainant identified the appellant and replied that the appellant and herself stayed a few houses apart and that the appellant's younger brother Api or A[...] was R[...]'s friend who used to play together. It was pit to her that there are two lines and a passage between her place of residence. and that of the appellant. [13]      She testified that she reported the incident to her mother years later when they had an argument. It became too much for her to handle, she cried not because of their argument and ended up having emotional breakdown and told her mother about the rape incident which occurred when she was five years old. [14]      She said her mother became emotional and blamed herself for the complainant not having told her about the incident. [15]      She said she was taken to the psychologist and the hospital to check if she had any injury. [16]      Having confirmed that she would be able to identify the person she called B[...], the public prosecutor requested the court that the complainant be allowed to come to the court room to identity the appellant. [17]      The court directed that the camera be adjusted to show the whole court room to avoid the complainant coming to point out the appellant inside the court room [18]      The complainant identified the appellant as sitting in front of three microphones wearing a blue jean and grey top. [19]      When the defence attorney started cross examination, it came out that the complaint was assisted in pointing out the appellant as he was the only person shown on the CCTV camera seated in front of three microphones. [20]      The court decided that because of the way the CCTV camera was operated, the identification process was not sensitive and fair to both the complainant and the appellant. [21]      Another identification process was arranged with the appellant occupying the middle position between Messrs Dube and Nzimande. The complainant identified the appellant sitting in the middle position wearing the blue jean, brown shoes and grey top. [22]      Under cross examination, she replied that she knew and respected the appellant as A[...]'s elder brother. She had nothing to do with him other than a causal relationship. He was older than the complainant and she never played with him. [23]      She replied that her underwear had urine and not blood stain. [24]      When it was put to her that the appellant's version was that during 2011 he did not know her and that he started knowing her as R[...]'s sister around 2015, she replied that he was lying. [25]      She admitted that in 2011 the appellant was attending school and responded that he was not attending the same school with her brother, R[...]. She replied that the appellant attended the same high school with her brother R[...] around the 2015 period. [26]      When it was put to her that she did not previously mentioned that the appellant inserted his penis in her mouth, she replied that she was not comfortable going into details about what happened. [27]      The complaint's mother A[...] N[...] M[...] testified that the complaint is the second daughter of her three children. [29]      She stated that on the 23 rd July 2020 she came back home from work to find that the complainant had not washed the dishes. They argued and when the complainant gave her what she regarded as attitude, she assaulted the complainant who cried. [30]      She said: " But then her crying was not over the fact that the dishes were not washed. I felt that there was something deeper which was affecting her. And as a mother, I had to go deeper and search out as to actually what is it that is making her cry. I struggled to get the truth. I struggled but never gave up. I assaulted her; she cried. And then I assaulted her and I told her that we are not going to steep and never slept " [4] [31]      When asked to explain what she meant that they never slept, she explained that the arguments and the assault started around 17hrs and they did not sleep until around three or four the following morning. [32]      When asked for the reasons for doing that she replied that for some years before the dish washing assault incident, she picked up weird conducts like the complainant denying her access to the complainant's bathroom. She suspected that the complainant could have been raped but was afraid how the complainant would react to such suggestion without providing any basis for that suggestion. [33]      She testified that the complainant told her she was raped by the appellant in December when she was five years old. She said the complainant identified her attacker by the name B[...]. The witness pointed at the appellant arid said " This guy. B[…] is the one " [34]      The witness said the complainant told her that on that day, she was walking with her bother. When her brother left the complainant behind, the complainant decided to go and play with Mbali and others at Mbali's place opposite the appellant's place of residence. [5] As the complainant was busy playing the appellant came and told her that her brother had left his shoes at the appellant's house and requested her to pass by to collect the shoes. The complainant proceeded to the place and found the appellant who held her with the intention of going to give her the shoes. The appellant took the complainant and threw her into the appellant's bedroom, removed her panties and put it on the side and then inserted his penis into the complainant's mouth and the vagina. [6] [35]      The witness said the complainant told her the appellant made up-and-down movements on top of the complainant and when he was done, the appellant told the complainant to put on her underwear and dress up. The appellant then told the complainant that should she dare tell anybody about what happened, he would hurt his brother. [7] [36]      She said the complainant was crying as she related the incident and they both cried. They opened the criminal case and went to Jubilee Hospital where the complainant was given tablets and injection. Together with the police they proceeded to the appellant's house to inform him about the case. She then told the police to warn the appellant that should anything happen to any of her three children, the appellant would be the suspect. [37]      She said she knew the appellant when she arrived in Block […] Soshanguve towards the end of 2006. The complainant was still a baby and the appellant used to play with her first born son, usually at the appellant's home. She disputed that the appellant did not know the complainant in 2011. She said the appellant used to assault her son and she used to complain to the appellant's grandmother. She said one day the appellant gave her bad answer in the presence of his grandmother and she assaulted the appellant with the open hand. The appellant told her that he would show her and that explained why he had raped her child. [8] [38]      She stated that people like the appellant are not good in the community. [39]      In response to the question from the court, she respondent that she relocated with her three children from Block […] area to Block HH Soshanguve area because the family was not safe to reside around the area. [40]      She conceded that she told the appellant that she wished he could be crushed by a bus. [41]      She said she allowed the appellant's brother to prune her trees because she did not know what the appellant had done to her daughter. [42]      Poppy Phillis Sibiya testified as a registered midwife nurse, a registered psychiatric nurse, clinical forensic nurse and occupational nurse. She is also trained by Forensic Medical Services Gauteng Department as a sexual assault examiner with fourteen years' experience. [43]      She testified that on the 27 th June 2020 the complainant, accompanied by her mother, was brought by Warrant Officer Niyakeni or Mnyakeng to her workplace for examination. [44]      She was referred to the J88 form which she had completed. It indicated that the complainant was brought for examination eight years after the incident. It also reflected that there was no sign of physical injuries, including anal and vaginal injuries. The hymen was oval with thick ridges and with no injuries. There was also no discharge. The form also indicated no visible signs of penetration, without concluding that penetration is excluded due to different factors: normally five year aids have difficulties in differentiating whether a penis was inside the vagina, anus or between the thighs, the anus of a five-year-old can accommodate small adult penis or the adult might use lubrication. The five years old children still have estrogen from their mother, which protects injuries and causes quick and complete healing. The form says it can take three to five days for the hymen to heal completely. [45]      In response to cross examination, the witness respondent that at around age five, a victim might mistake a non-penetration incident to be that of penetrated sex and that the absence of injuries does not exclude or confirm penetration. [9] The examination of the complainant after eight years of the incident will not reveal any injuries., but that does not exclude penetration. [46]      On behalf of the State, it is submitted that it is well known that in most rape cases the complainants are usually alone at the commission of the offences. It was submitted that in terms of section 60 of the Sexual Offences Act, a court may not treat the evidence of a criminal case complaint with caution on the account of the nature of the offence [47]      It is submitted that the presiding magistrate took a holistic consideration of the evidence and was correctly convinced that the appellant's guilt was proved beyond reasonable doubt. The appellant's case [48]      The appellant pleaded not guilty and exercised his right to remain silent. [49]      He testified that he was born on the 7 th October 1997. He was fourteen years at the time of the incident in December 2011 and twenty-six years at the time of his testimony. [50]      At the time of the incident he resided at Block […] Soshanguve. with his younger brother, his uncle, his grandfather and grandmother. [51]      He did not know the complainant at the time of the incident. He knew and played with R[...], the complainant's brother, only once. [52]      During December 2011 he played with Amogelang Mnisi and others. It is not possible that during that time he played with complainant's brother R[...]. He did not know R[...] much and started knowing him in 2020 when they exchanged music beats among themselves, being the appellant, R[...] and Calvin. If anyone of them acquired new fashion music beat, he would share that with others. The appellant would receive new music beats from R[...] through Calvin. He conceded that R[...] was a friend to his younger brother. [53]      He disputed the allegation that he invited the complainant to come to his place of residence to collect the shoes left by R[...] while playing with him. [54]      He denied the allegation that the complainant went with him to his place of residence where he allegedly grabbed her by her hand, pulled her into the room where he put her on top of the bed and then raped her. [55]      He denied that he inserted his penis into the complainant's mouth and then into her vagina. [56]      He denied that he threatened to hurt the complainant's brother if she told anyone about what happened. [57]      He respondent that he did not remember the incident where R[...] played in the witness's yard with his younger brother and other children. [58]      He thought there was a day when he played soccer game with R[...] in the same street they were residing. [59]      He disputed the complainant's mother evidence that he assaulted R[...], that R[...]'s mother came to his place of resident, reprimanded the appellant and assaulted him with open hand in the presence of his grandmother. [60]      He admitted that after the rape incident and the visit by the police to his place of residence, Ms S[...], his uncle's mother-in law and the witness's neighbour, went to the complainant's place of residence. He respondent that he did not send Ms S[...] to the complainant's home. Ms S[...] told him to go and lie down a bit when he became emotional for being accused of something he did not do. He learned that the complaint's mother chased Ms S[...] away from their place of residence. [61]      He replied that he only knew the complainant in 2019 and not 2015. [62]      The distance between the complainant and the appellant's place of residence was agreed to and recorded to be one hundred and sixty meters. [63]      He conceded that he was nine years when the complainant was born but denied that he knew her despite the distance between their respective places of residence. [64]      To the court's question, he respondent that together with his friend Kopano, in 2019 they stole school laptop. The school did not lay a criminal charge. [65]      On behalf of the appellant, it is submitted that the evidence of the alleged rape was obtained through the use of torture and should be excluded. [65]      Amogelang Mnisi testified that he is the appellant's friend who stays at house number […] Block […] Soshanguve, opposite the appellant's place of residence. [66]      In 2011 appellant was expelled from school. He was attending school and would see the appellant sometimes and also during holidays and weekends. He played with the appellant during December 2011. He was not part of the children who usually played in the appellant's yard. [67]      He knew the complainant and her brother R[...] since around 2011. He did not see them at the appellant's place of residence. [68]      In cross examination by the prosecutor, he responded that it is impossible that the appellant did not know the complainant and her brother in 2011 as they stayed in the same area. [69]      Mrs A[…] S[...] testified that she was born on the 25 th April 1960. She knew the appellant's family as neighbours with good relationship that when that family's grandmother died, the witness assumed the role of the family's grandmother. [70]      She stated that either the appellant's uncle or brother has a child with the witness's daughter. [71]      She said the appellant came to her house crying and told her that the police came to his place of resident with the allegation that he had raped the complainant. The appellant denied the allegation. [72]      She told the appellant to go back to his place of residence. Later in the evening she went to the complainant's place of residence where she found the complaint's father. She told the complaint's father that the appellant told her that the police came to his place. She said as she was about the leave the complainant's place of residence, the complaint's mother came. She told the witness that the appellant raped her daughter. She was angry and was not willing to talk to the witness. The witness told the complainant's mother that she came to hear and understand what happened because she is the neighbour who the appellant regards as his grandmother. She said she never apologised on behalf of the appellant. [73]      She said she was not sent by the appellant to the complainant's place of residence. She said initially the appellant did not know that she went to the complaint's place of residence but she later told him. [74]      She said the complaint's mother used to send her to the witness's house [75]      In response to the court's clarity seeking questions, she replied that she did not know if the appellant knew the complaint when the incident took place in December 2011. Discussion [76]      The judgment the appellant is appealing against starts from page 3.42 to page 3.63 of volume 3 bundle. The prosecutor introduced the start of the hearing by saying the matter was on the roll for the purpose of judgment. The court agreed and said '' A ruling is for Judgment and the purpose of the ruling is whether this court finds you guilty or not guilty. That is what you are here for ." [77]      Having summarised the parties' evidence and the submssions, the judgment states: ''So that is how the case manifested itself before me and I have looked at the evidence, looked at the case laws and looked as to how the matter was argued in front of me: how the witnesses testfied: how the witnesses were called: how other witnesses were called as a result of testomony, not as a result of how the case was going to be argued. Now in conculusion the court comes to the following : The accused is found guilty as charged." [10] [78]      This judgment does not address the issues raised in the appeal notice and the appellant's heads of argument. It did not analise the presented evidence and indicate how the authorities cited in the heads of argument were applied to the facts of the case. [79]      The judgment does not deal with the basic starting point of the onus of proof in criminal proceedings. It does not indicate and the parties are not taken thorugh as to how did the state succeeded in proving the guilt of the appellant beyond reasonable doubt. [11] [80]      The judgment does not indicate how did deal with the appellant's version. There is no burden on an accused to establish its innocence. The appellant was entitled and did raise the defence of alibi that at the time of the alleged crime, he was not at the place where the incident allegedly took place. The appellant was under no obligation to prove his defence. All he needed to do was to show that his defence was reasonablly possibly true to be entitled to be discharged and found no guilty. In any case where there is reasonable possibility that the account of the accused maybe substantially true he must be acquitted. [12] An accused has no onus to convince the court of the truth of any explanation she or he gives and if she or he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. A court cannot convict an accused unless it finds that the accused's version is so improbable that it cannot be reasonably possibly true. [13] [81]      The appellant's complainant is that he was wrongly convicted on the evidence of single child witness. He submits that the state case relied on the evidnce of a single child witness in the face of his alibi defence. He submits that the state has failed to prove beyond reasonable doubt that he allegledly committed the rape offence as alleged in the charge sheet. [82]      Section 208 of the CPA allows convition on the basis of single evidence of any competent witness. The principle in section 208 of the CPA is that the trial court may convict on the evidence of a single witness, provided that such evidence is clear and satisfactory or corroborated in all material respects. This is provided that the exercise of caution must not be allowed to displace the exercise of common sense. [14] [83]      The judgment does not explain to the parties how did it deal with the evidence of a single child complainant wiitness as guided by cases such as Woji [15] and Maila. [16] [84]      The jdgment gives no indication as to how and why was the appellant's version rejected as not being reasonably possibly true. This is at the centre of the appellant's fair trial right referred to in section 35(5) of the Constitution. [85]      The appellant submits that the charge put to him was that of rape in contravention of section 1 instead of section 3 of the Sexual Offences Act. He submits that with the enactment of the Sexual Offences Act, the common law crime of rape was repealed and replaced with the crime of sexual penetration without permission as envisaged in section 3 of the Sexual Offences Act. He submits that he was charged with contravention of the common law crime of rape. [86]      The appellant's complaint is that because the charge sheet to which he was made to answer refers to section 1 instead of section 3 of the Sexual Offences Act, he was made to plead to the defective charge sheet. This despite the fact the annexure to the charge sheet refers to the correct section 3 of the Sexual Offences Act. [87]      For a number of reasons, but mainly that the appellant's fair trial right was not violated by the alleged defective charge sheet, this submission does not assist the appellant's case. Referring to the Jaipal case [17] , on behalf of the appellant it is rightly accepted that the right to fair trial encompasses not only fairness to the accused, but also fairness to the public as represented by the state. All the parties have the fair trial constitutional right to adduce and challenge evidence as provided in section 35(3)(i) of the Constitution. [88]      On behalf of the appellant, reference was made to Kolea case, [18] where the charge sheet referred to section 51(2) instead of section 51(1) of the Criminal Law Amendment Act 105 of 1997 . Section 51(2) provides for the imposition of a minimum sentence of ten years in respect of the first offender while section 51(1) prescribes a minimum sentence of life imprisonment. Because the evidence established that the victim was raped more than once by more than one person, the presiding magistrate referred the matter to the High Court for sentence. The High Court found substantial and compelling circumstances and deviated from life imprisonment and imposed fifteen years' imprisonment. The Full Bench found no substantial and compelling circumstances and increased sentenced from fifteen years to life imprisonment. The appeal against the Full Bench decision was that having been charged in terms of section 51(2) , the appellant should not have been convicted under section 51(1) of the minimum sentence Act. The appeal court was satisfied that the appellant, who was legally represented, knew of the charge he was facing and that the State intended to rely on the minimum sentence regime. [19] [89]      In terms of section 84(1) of the CPA, a charge sheet is required to set out the essentials to enable an accused to answer to the charge. Subsection 3 provides that the description of any statutory offence in the words of the law creating the offence, or in similar words shall be sufficient. [90]      Whether the charge sheet contains sufficient details is a question of substance than form, the question being whether the accused was sufficiently appraised of the charge to receive fair trial. [20] [91]      The accused's right to be informed of the charge he is facing, and which must contain sufficient details to enable him or her to answer it, is underpinned by section 35(3) of the Constitution, which provides that every person has the right to fair trial. The objective is not only to avoid a trial by ambush, but also to enable the accused to prepare adequately for the trial and to decide, inter alia, whether to engage legal representative, how to answer to the charge and which witnesses to call. [21] [92]      The purpose of section 35(3) constitutional fair trial right is to minimise the risk of wrong conviction and the failure of justice. [22] [93]      Section 85 of the CPA provides the remedy to object to the charge which does not comply with the provisions of section 84 of the CPA. During the entire process, the appellant, who was legally represented, did not object that he was prejudiced. [94]      Issues relating to section 84 should be raised at the "pleading stage" to provide the prosecution and the court the opportunity to deal with such issues. [95]      Because the alleged defective charge sheet was not raised at the "pleading" staged, the judgment makes it clear that it dealt with the hearing on the basis that the appellant faced the charge of the contravention of section 3 and not section 1 of the Sexual Offences Act. [23] [96]      Raising the alleged defective charge sheet at this appeal stage will make this appeal court to sit as a court of first instance to the prejudice of the state in a situation where are no exceptional circumstances to do so. [24] [97]      Section 1 of the Sexual Offences Act deals with the definition and objectives of the Sexual Offences Act. It defines sexual act as being an act of sexual penetration or an act of sexual violation. It defines sexual offence as meaning any offence in terms of chapters 2,3 and 4 of the Sexual Offences Act. Sexual penetration is defined as including any act which causes penetration to any extent whatsoever. [98]      Section 3, being part of Chapter 2 of the Sexual Offences Act, provides that any person who unlawfully and intentionally commits an act of sexual penetration with a complainant without the consent of a complainant is guilty of the offence of rape. [99]      The mention of section 1 instead of section 3 of the Sexual Offences Act appears to have been a pure oversight on the part of the prosecution, which should have been dealt at the "pleading" stage. On behalf of the appellant, it is correctly conceded that a criminal trial is not a game where one party would be entitled to gain an advantage from an omission or mistake by the other party. [100]   On behalf of the respondent, it is submitted that the appellant was convicted under the correct charge and was not presented with the defective charge as reflected by annexure A2. It is submitted that the presiding magistrate read out the correct charge. [101]   There are three versions leading to the incident. The complainant's version is that she met the appellant on her way home when he told her about her brother's shoes which he had allegedly left at the appellant's place of residence. The complainant's mother version is that the complainant was playing with Mbali and others friends at Mbali's place of residence opposite the appellant's place of residence when the appellant told her that her brother had left his shoes at the appellant's place of residence. The appellant's version is that he was not at the place of incident and that he did not see the complainant in 2011. He said he only saw her on sight in 2015. No witness, including Mbali and her friends was called to establish whether the appellant come to the place where they were playing and told the complainant about the shoes her brother allegedly left at the appellant's place of residence. On behalf of the appellant, it is correctly submitted that the judgment does not provide the reasons why his version was rejected as not being reasonably possibly true. The judgment provided no reason why the appellant's alibi version was rejected. [102]   The approach to be followed where there is a conflict of facts in criminal proceedings is that it is impermissible to approach such a case by saying that because the court is satisfied as to the reliability and credibility of the state witness and that, therefore the defence version deserves to be rejected. The proper approach is for the court to apply its mind not only to the merits and the demerits of the state and defence witnesses, but also to the probabilities of the case. It is only after so applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond reasonable doubt. [25] [103]   With reference to Maake case, [26] Marunga case [27] , section 146 of the CPA as well as section 93ter(3)(c) , (d) and (e) of the Magistrates Courts Act 32 of 1944 , the appellant correctly submits that as the judicial officer, the presiding magistrate was obligated to provide reasons to substantiate the conclusions he reached in rejecting the appellant's version. This would give assurance that the presiding magistrate gave due consideration to the applicable legal principles and did not act arbitrary. [104]   The fact that the complaint and her mother identifed the appellant from the dock does not mean that the state has proved its case beyond readonable doubt. [105]   The evidence is that the complainant made the first report to her mother about the incident about eight years after the incident and when her mother assaulted and deprived the complainant sleep. The appellant submits that this is the evidence which was unlawfully obtained through torture and in violation of section 35(5) of the Constitution. This section provides that evidence obtained in a manner that violates any right in the Bill of Right must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. [106]   The cited cases of Tandwa [28] and Mthembu [29] interpret this section as not providing for automatic exclusion of unconstitutionally obtained evidence. Evidence must only be excluded if it renders the trial unfair or is otherwise detrimental to the administration of justice. Where admitting the evidence renders the trial itself unfair, the administration of justice is always damaged. The provision envisages cases where evidence should be excluded for broad public policy reasons beyond fairness to the individual accused. Public policy is concerned not only to ensure that the guilty are held accountable; it is also concerned with the propriety of the conduct in securing evidence. It involves considering the nature of the violation and the impact that evidence obtained as a result thereof will have, not only on a particular case, but also on the integrity of the administration of justice in the long term. [30] Real evidence which exists independently from unconstitutional conduct employed to obtain such evidence may not necessarily be exclude solely on the basis of the manner in which such evidence was obtained. [31] [107]   The absolute prohibition on the use of torture in both our law and international law demands that any evidence which is obtained as a result of torture must be excluded in any proceedings. [32] [108]   The court of first instance did not deal with the evidence of the complaint's mother about how the first report of the incident was conveyed to her. [109]   The judgment does not indicate how did it deal with the state's onus to prove the appellant's guilt beyond reasonable doubt. It does not indicate how the appellant's alibi was rejected as not being reasonably possibly true. [110]   I propose that the appeal shoud succeed. Order [111]   The appeal against the conviction is upheld. [112]   The order of the Regional Court, Soshanguve, is set aside and replaced with the the order that the accused is found not guilty and discharged. LGP LEDWABA CTING JUDGE OF THE HIGH COURT GAUTENG DIVISION: PRETORIA I agree MOSHOANA HIGH COURT JUDGE GUATENG DIVISION: PRETORIA APPEARANCES Heard on:                           19 November 2025 Judgement delivered on:    15 December 2025 For the Appellant:               Adv M.G Botha Instructed by:                      Legal Aid South Africa Pretoria Local Office For the Respondent             Adv. Masekoameng Instructed by:                       DPP [1] The appellant was under sixteen years at the time of the incident. [2] Maila v State (2023) ZASCA 3- para 3 [3] In response to the question by court, she respondent that she was seventeen years old. [4] Para 10, page 1.68 of volume 1.1 [5] Para 20, page 1.74 of volume 1.1 [6] Page 1.75 volume 1.1 [7] In the written statement, the witness said the complainant told her she was afraid the appellant would kill her brother and herself- page 1.107 of volume 1.1 [8] Paragraph 10 page 1.79 volume 1.1 / 10/3.51 volume 3) [9] Paragraphs 10 to 20 of page 1.150 volume 1.1 [10] Paragraph 17-20 of page 3.63- Volume 3 [11] Sekoala v S (2024) ZASCA 18- pa 27 [12] State v Jackson 1998(1) SACR 470(SCA) -page 476- paragraph e-f; S v Chabalala 2003(1) SACR 134(SCA); Maila v S (2023) ZASCA 3- par 20; Tshiki v S (2020) ZASCA 92(SCA) and cited cases.? [13] Michael Jantjies v S (2024) ZASCA 3 . [14] S v Artman & Another 1968(3) SA 339(A); S v Sauls & Others 1981(3) SA 172(A) at 180E-G [15] Woji v Sanlam Insurance Co Ltd 1981(1) SA 1021(A) [16] Maila v S (2023) ZASCA [17] S v Jaipal 2005(1)SACR 2159 CC)-par 29. [18] S v Kolea (2012) ZASCA 199 ; 2013(1) SACR 409(SCA). [19] S v Kolea (2012) ZASCA 199 ; 2013(1) SACR 409(SCA)- par 11 [20] S v Kolea (2012) ZASCA 199 ; 2013(1) SACR 409(SCA)- para 8 and 9 [21] S v Kolea (2012) ZASCA 199 ; 2013(1) SACR409(SCA)- par 7 [22] Godoza & Another v S (2025) ZACC 24-par 63 [23] Paragraph 10, page 3.43 of volume 3 [24] Barkhuizen v Napier (2007) ZACC 5 ; 2007 (5) SA 323(CC) ; 2007(7) BCLR 691(CC)- par 39; Mmabasotho C Olisitse N.O. v Minister of Police ( 2023) ZACC 35-par 31; Godoza & Another v S (2025) ZACC 24-par 42 [25] Sekoala v State (2024) ZASCA 18- par 55 [26] Sv Maake 2011(1) SACR 2663(SCA) - par 19 [27] Road Accident Fund v Marunga 2003(5)SA 164(SCA) at 171E-172C [28] S v Tandwa & Others (2007) ZASCA 34 ; 2008(1) SACR 613(SCA)· [29] S v Mthembu (2008) ZASCA 51 ; 2008(2)SACR 407(SCA) [30] S v Mthembu (2008) ZASCA 51 ; 2008(2)SACR 407(SCA)·para 25 and 26; S v Tandwa & Others (2007) ZASCA 34 ; 2008(1) SACR 613(SCA)·par 113-119 [31] S v Tandwa & Others (2007) ZASCA 34 ; 2008(1) SACR 613(SCA)·par 113 [32] S v Mthembu (2008) ZASCA 51: 2008(2)SACR 407(SCA)- par 32 sino noindex make_database footer start