Rathebe v S (1571/2024) [2025] ZASCA 73 (30 May 2025)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

    Not
Reportable

Case no: 1571/2024

In the matter between:

Neutral
citation: Rathebe v The State
(1571/2024) [2025] ZASCA 73 (30 May 2025)

Coram:        
MOCUMIE, KEIGHTLEY and BAARTMAN JJA and
PHATSHOANE and       HENNEY AJJA

Heard:         
This appeal was, by consent between the
parties, disposed of without an oral hearing in terms of s 19(a)
of the Superior Courts Act 10 of 2013.

Delivered:   
30 May 2025

Summary:   
Criminal Law – Criminal Procedure
Act 51 of 1977 (the CPA) – the proper approach to adopt where
an accused person whose
erstwhile co-accused was found not guilty and
discharged in a separate appeal on the same facts – convictions
based on the
uncorroborated evidence of a single witness – s
208 of the CPA.

ORDER

On
appeal from:    Gauteng
Division of the High Court, Pretoria (B[…]-Mere
AJ with Davis J concurring, sitting as a court of appeal):

1       
The appeal is upheld.

2       
The order of the high court is set aside and substituted with the
following:

‘Accused
2 is found not guilty and discharged on all 11 counts of
rape.’         

JUDGMENT

Mocumie JA (Keightley
and Baartman JJA and Phatshoane and Henney AJJA concurring):

[1]     
This is an appeal against the judgment and order of a full bench of
the Gauteng Division of the
High Court, Pretoria (the high court)
with special leave having been granted by this Court under the
extraordinary circumstances
which will become apparent. The crisp
issue for determination is whether the appellant, Mr Ramesa Johannes
Rathebe (Mr Rathebe),
is entitled to an acquittal on all 11
counts of rape on which he was convicted by the trial court. His
appeal follows on an acquittal,
in an earlier appeal to this Court,
of his erstwhile co-accused on the same charges and on the same set
of facts. The appeal is
unopposed and the parties agreed that it be
disposed of without oral argument on Mr Rathebe’s papers,
as contemplated
in s 19(a)
of the Superior Courts Act 10 of 2013 (the Superior Courts
Act).[1]

[2]     
First, I dispose of the application for condonation for the late
filing of the appeal which had
lapsed. Mr Rathebe was released, on
warning, from a correctional facility on the directive of this Court
in November 2023, after
considering his co-accused’s appeal.
After Mr Rathebe and his erstwhile co-accused had had their sentences
increased in an
appeal to the high court, he had not earlier applied
for special leave to appeal to this Court. However, on being advised
of this
Court’s directive, and assisted by the Legal Aid Board,
he pursued the new opportunity to seek special leave to appeal in

earnest. Special leave to appeal was granted. Several problems
occurred while the appeal was on the Legal Aid Board’s desk,

resulting in the late filing of the notice of appeal. Consequently,
the appeal lapsed. The reasons for the period of delay have
been
sufficiently explained, and the State does not oppose condonation
being granted. I can conceive of no reason why condonation
ought not
to be granted and it is so ordered. The appeal is reinstated.

[3]     
This appeal is a sequel to an appeal which served before this Court
in September 2023, Sekoala
v The State (Sekoala).[2]
Mr Rathebe is serving 20 years’ imprisonment, albeit he was
released on warning pending this appeal. The conviction and sentence

of his erstwhile co-accused, Mr Sekoala, were overturned by this
Court in February 2024. He is similarly circumstanced as Mr Sekoala.

[4]     
The Constitutional Court in Molaudzi
v S (Molaudzi)[3]
highlights the difficulties that can occur when former co-accused
persons separately seek leave to appeal with different outcomes.

There, the accused persons were found guilty of murder and robbery
based on common purpose by the North West Division of the High
Court,
Mafikeng. The high court and this Court on appeal, grounded on the
inadmissibility of the extra-curial statements, dismissed
their
appeal. In the Constitutional Court, Mr Molaudzi, who was not legally
represented, unsuccessfully applied for leave to appeal
on the basis
that he was seeking leave to it on essentially an attack on the
factual findings of the trial court. That did not
raise a proper
constitutional issue for the Constitutional Court to entertain it.

[5]     
In Mhlongo
v S; Nkosi v S,[4]
Messers
Mhlongo and Nkosi, the erstwhile co-accused of Mr Molaudzi applied
for leave to appeal against their convictions and sentences.
Their
application differed from that of Mr Molaudzi (in Molaudzi)
in that they raised constitutional arguments pertaining to the
admissibility of extra curial statements of an accused person against

a co-accused in a criminal trial. The Constitutional Court considered
the challenge to raise a meritorious constitutional issue
which
engaged its jurisdiction; the Court granted the applicants leave to
appeal; and subsequently overturned their convictions
and they were
released from prison.

[6]     
Under directions by the Constitutional Court, Mr Molaudzi brought a
further application for leave
to appeal to the Court. He raised the
same arguments as Messers Mhlongo and Nkosi. The question that arose
was whether the refusal
of his first application for leave to appeal
rendered his second application res judicata. Mr Molaudzi
argued that it did not. This was because the first application was an
attack against the factual findings of the trial
court. It did not
raise a constitutional issue and accordingly did not engage the
Court’s jurisdiction. Mr Molaudzi argued
that the second
application dealt with the constitutional tenability of the
admissibility of extra-curial statements by an accused
against a
co-accused was not raised in the first application.

[7]     
The Constitutional Court found, inter
alia,
that ‘even though a constitutional challenge was not raised and
decided in the first application, the second application
ought to be
considered res
judicata
as the merits of Mr Molaudzi’s appeal were considered by [the]
Court and ruled on’.[5]
However, it found, with reference to foreign jurisdictions and
precedents, that:

‘The
general thrust is that res
judicata
is usually recognised in one way or another as necessary for legal
certainty and the proper administration of justice. However,
many
jurisdictions recognise that this cannot be absolute. This is because
“[t]o perpetuate an error is no virtue but to
correct it is a
compulsion of judicial conscience”.’[6]

[8]     
The Constitutional Court exercised its powers under s 173 of the
Constitution to effect an outcome
that served the interests of
justice. In doing so, it balanced the rule of law and the need for
legal certainty and finality in
the administration of criminal
justice – which may be adversely affected if parties are
allowed to approach the courts on
multiple occasions on the same
matter – against the necessity to vindicate the constitutional
rights of an unrepresented,
vulnerable similarly situated accused,
who would otherwise be denied relief. The Constitutional Court held,
‘[a]s in this
case, the circumstances must be wholly
exceptional to justify a departure from the res
judicata
doctrine’.[7] It concluded
that the merits of Mr Molaudzi warranted the same conclusion as his
erstwhile co-accused, Messers Mhlongo and Nkosi.

[9]     
While the present case does not raise the same issue of res
judicata, as was raised in Molaudzi, the approach of the
Constitutional Court in that matter, makes plain the importance of
the need to serve the interests of justice
in cases where co-accused
persons have ‘split appeals’ and unfortunate anomalies
consequently occur.

[10]   
Reverting to Mr Rathebe, it is common cause that he was charged
together with Mr Sekoala on 11 counts
of rape of one
complainant. Both unsuccessfully appealed all the convictions and
sentences before the high court. On appeal before
this Court,
Mr Sekoala was found not guilty and discharged on all counts. In
Sekoala, this Court said:

‘The
complainant’s evidence that she was raped by both Mr Sekoala
and Mr Rathebe must be considered along with the explanation
given by
both accused. Mr Rathebe’s version
is wholly exculpatory. He denied any sexual intercourse with the
complainant. He confirmed his knowledge
about the troubled
relationship Mr Sekoala and the complainant had.
This was also confirmed by Ms B[…].
His version was that the complainant
asked him to talk to Mr Sekoala on several occasions about their
relationship, prior to the
night in question, which he refused to do.
On the night in question, he intervened when Mr Sekoala manhandled
the complainant,
trying to chase her out of his house. He was present
when Mr Sekoala told the complainant he wanted to end their
relationship.
After Mr Sekoala told them
to leave his bedroom, he and the complainant went to the sitting
room, where she was sobbing. He fell
asleep and when he woke up the
next morning, the complainant was not there. He later saw her doing
some chores in Mr Sekoala’s
bedroom.

The evidence of Mr
Rathebe, is important in the scheme of how events unfolded on the
night in question. The trial court considered
the complainant’s
evidence in isolation. When the strengths and weaknesses of both the
State and Mr Sekoala’s version
are considered, Mr Sekoala’s
version does not strike as one that could be viewed as being false
beyond [a] reasonable doubt.
If there is a reasonable possibility of
his version being true, he is entitled to an acquittal. The court
does not need to be convinced
that he is telling the truth. Mr
Sekoala’s evidence is supported by Mr Rathebe’s,
whose evidence was hardly disturbed
in cross examination.

As
regards the bruises found on the arms of the complainant, the trial
court concluded that they were sustained during the rape
incidents
when the two accused held her down. This was not the only reasonable
inference that could be drawn from the proven facts.
The bruises
could equally have resulted from the aggressive manhandling by Mr
Sekoala when she was being chased out of the house.
Unfortunately,
this was neither explored with any witness during the trial,
nor
was the doctor who examined the complainant called to explain which
scenario would be consistent with the bruises. Whether the
bruises
could only have been sustained when the complainant’s arms were
held to the ground whilst she was being raped was
not tested. The
trial court erred by finding that they were consistent only with her
version of rape by the two men. Since the
holding down of the hands
while being raped was not the only reasonable inference to be drawn
from the bruises on the arms, the
trial court materially misdirected
itself. The accused ought to have been given the benefit of the
doubt.’[8] (Emphasis
added.)

[11]    
Sekoala
emphasised the basic principles in criminal cases, which apply where
the State relies solely on the evidence of a single witness,
as
envisaged in s 208 of the Criminal Procedure Act 51 of 1977 (the
CPA).[9] The principles have
been stated and applied in many judgments of this Court[10]
and other courts. The trial court and the high court did not follow
these authorities.

[12]   
The basic rights impugned are clear. Section 35(3) of the
Constitution, provides for the right to a fair
trial. Our criminal
judicial system seeks to promote fairness for all accused persons. It
emphasises that fairness is a fundamental
requirement of the
Constitution during a trial, meaning that a trial court must consider
what is fair in the circumstances and
ensure that the accused person
is treated fairly. Where a trial court failed to do so, the appellate
court must be extra careful
not to repeat the same misdirection.
Section 9 of the Constitution provides for the equal treatment of all
who appear before the
courts.

[13]    It
follows that, as with Mr Sekoala, the only evidence the State
presented against Mr Rathebe did not meet
the high threshold of proof
beyond a reasonable doubt. For these reasons, Mr Rathebe is entitled
to the benefit of the same doubt
that Mr Sekoala enjoyed, and on the
same basis held by this Court in Sekoala.

[14]   
There remains one issue upon which some
observations are appropriate. The heads of argument which were
originally filed by the State comprised only three pages which were
of no assistance to this Court,
nor in line with the Practice
Directives of this Court. To demonstrate the point, pages three and
four, which comprise the entirety
of the submissions made, are quoted
verbatim:

‘INTRODUCTION’

AD Par 1: Correct

MERITS

AD Par 2 and 3

The Respondent cannot
refer to evidence that is implicating the appellant that did not
implicate his erstwhile co-accused.

CONCLUSION

The
Respondent abides by the decision of this Court.

Signed at PRETORIA on
this 13th day of October 2024.’ (Emphasis added.)

[15]   
A directive was issued by this Court for the State to file proper
heads of argument. As prompted and in due
course, detailed
‘Respondent’s Supplementary Heads of Argument’ were
filed. In there, reference was made to authorities
not relevant to
the issue raised in the appeal. In addition, the author conceded the
merits ‘cautiously,
acknowledging that the constitution of the Court to decide this
appeal is totally different than the Honorable Judges that considered

the appeal of the [a]ppellant’s erstwhile co-accused, and who
will be required to consider the evidence and draw their own

conclusions’.[11]

[16]   
The prosecution represented by its own prosecutors, who are admitted
advocates of the high court of the respective
divisions in which they
serve, play a critical role in the criminal court from the
commencement of the trial until the final court
of appeal. While it
may be so that they act under pressure and tight court schedules,
this cannot be an excuse for failing to file
proper heads of
argument. In this Court, the prosecution is required to file heads of
argument a month after the appellant has
filed theirs. That is
sufficient time to be able to produce well-reasoned and detailed
heads of argument which will be of great
assistance to this Court.
Rule 10[12] read with 10A,[13]
remains in place and must be adhered to. A failure to do so, as
occurred with the initial heads of argument filed in this case,

amounts to a breach of a professional duty owed by them as
representatives of the State in criminal matters, and to the Court.

[17]   
In the result, the following order issues.

1       
The appeal is upheld.

2       
The order of the full bench is set aside and substituted with the
following:

‘Accused
2 is found not guilty and discharged on all 11 counts of rape.’

B C MOCUMIE

JUDGE OF APPEAL

Written
Submissions