THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 157/15

In the matter between:

THOBANI NOTSHOKOVU

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Notshokovu v S (157/15) [2016] ZASCA 112 (7 September
2016)

Coram:
Shongwe, Seriti, Petse and Mathopo JJA and Potterill AJA

Heard:
22 August 2016

Delivered: 7 September 2016

Summary: Reconsideration of an order refusing special leave by two judges of
the SCA: test has stringent requirements as the threshold is now higher: whether
the courts below, including the decision of the two SCA judges, ought to have
granted leave or not: appellant failed to show special circumstances: special
leave refused.

ORDER
________________________________________________________________

The decision of this court dated 9 February 2015 dismissing the applicant’s
application for special leave to appeal is referred to the court for reconsideration
and, if necessary, variation in terms of s 17(2)(f) of the Superior Courts Act 10
of 2013 (Mpati P)
The application for special leave to appeal is refused.

JUDGMENT
________________________________________________________________

Shongwe JA (Seriti, Petse, Mathopo JJA and Potterill AJA concurring)
[1] This appeal is a result of an order made by the President of this court on
30 July 2015, in terms of the provisions of s 17(2)(f) of the Superior Courts Act
10 of 2013 (the Act). The appellant was convicted by the Regional Court (East
London) on one count of rape and sentenced to 6 years’ imprisonment. An
application for leave to appeal against conviction and sentence was refused – so
was a subsequent petition to the high court. A special leave application to this
court, before two judges, suffered the same fate.

[2] The appellant brought an application in terms of s 17(2)(f) of the Act,
which was granted. What is, therefore, before us for adjudication is the
reconsideration and, if necessary, variation of the decision of the two judges
who dismissed the application for special leave. In my view, this is not an
appeal on the merits against the conviction and sentence but a reconsideration of
the decision refusing special leave to appeal. This court has to decide whether or
not the courts below, including the two judges of this Court, ought to have
found that reasonable prospects of success existed to grant leave or special leave

respectively. (See S v Khoasasa [2002] ZASCA 113; 2003 (1) SACR 123
(SCA); S v Matshona [2008] ZASCA 58; 2013 (2) SACR 126 (SCA)). An
appellant, on the other hand, faces a higher and stringent threshold, in terms of
the Act compared to the provisions of the repealed Supreme Court Act 59 of
1959. (See Van Wyk v S, Galela v S [2014] ZASCA 152; 2015 (1) SACR 584
(SCA) para [14].)

[3] The trial court refused leave to appeal because it was satisfied of the
complainant’s credibility and more so that it was corroborated by the other state
witnesses. On the other hand it found the appellant’s version not to be
reasonably possibly true and contradictory. Essentially the refusal of leave was
factually based. It concluded that, although the complainant was under the
influence of alcohol, she was not drunk. It found that there were no reasonable
prospects of success on the merits.

[4] In order to understand the motivation of the trial court in refusing leave –
it is essential to consider the factual background of what actually happened on
that fateful day. On 27 January 2007 the complainant and her boyfriend Muntu
Kwela (Kwela) and other people attended a farewell party. The appellant was
also present. The complainant was introduced to the appellant by Kwela. She
had two sparkling wine drinks for the evening. She also danced with a friend for
a few minutes and later around 3am she felt tired and decided to go and sleep.
Her boyfriend walked with her to the bedroom and she asked him to lock the
door but her boyfriend suggested that he should not lock it because she might
want to visit the ladies bathroom later. During her sleep, she heard someone
coming into the bedroom, whom she thought was her boyfriend. As a result she
did not wake up to see who it was. She felt the person coming on top of her and
also realised that the person was penetrating her. She testified that she was on
her monthly period that day and she had inserted a tampon to regulate the

bleeding. She realised that it was not her boyfriend as the person was lighter
than the boyfriend, she woke up screamed and cried and noticed that it was the
appellant who penetrated her. Kwela came into the bedroom and other party
goers also came. The appellant ran away. She later reported the matter to the
police and subsequently also underwent medical examination in the hospital.

[5] The appellant admitted having had sexual intercourse with the
complainant but said it was consensual. His version is that he danced with the
complainant, which she denies, and they touched each other and he put his
hands around her waist whilst she put hers on his shoulder. He interpreted her
actions and conduct as being relaxed around him and mutually attracted to each
other. Later he decided to go and sleep. He went to the room which was
identified to him by one Andile, a friend and a person who resided in the
particular house. He found the complainant asleep and he moved in next to her
and they started kissing each other. He realised that she was naked. He mounted
her and had sexual intercourse with her. While busy with the intercourse, the
door opened and closed immediately and he could not see who opened the door.
Shortly thereafter the door opened again and the lights went on and when he
looked he noticed that it was Kwela. The appellant said that she exclaimed and
said ‘yoh maybe that was Muntu’. He immediately stood up, and put on his
clothes, apologised to Kwela and then Kwela started assaulting him and he ran
away.

[6] Kwela, also testified, although his version is that when he opened the
bedroom door where the complainant was sleeping, he immediately put the
lights on and saw the appellant on top of the complainant and was badly
shocked. He remained standing at the door. He asked the appellant what was
going on, upon which he answered that he thought it was his (appellant’s)
girlfriend.

[7] His evidence contradicts that of Thembele Maseka (Maseka), also a state
witness, in that Maseka said when they got to the complainant’s bedroom door
Kwela opened the door, peeped and closed it and followed him (Maseka) to his
bedroom – but he (Maseka) asked why Kwela was following him, Kwela turned
back to where the complainant was sleeping, opened the door and put the lights
on. Maseka also followed Kwela when he turned back. It would appear that
Maseka’s version is consistent with that of the appellant when he said that
someone opened and closed the door before opening it again and switching on
the lights.

[8] Be that as it may – it is common cause that there are discrepancies and
contradictions in both the State and the defence cases, the question remains
whether or not the said discrepancies and contradictions are relevant and
material to the issue or issues to be decided by this court. The totality of the
evidence ought to be considered holistically. In S v Mkohle 1990 (1) SACR 95
(A) at 98E-F Nestadt JA remarked that:
‘Contradictions per se do not lead to the rejection of a witness’ evidence. As Nicholas J, as he
then was, observed in S v Oosthuizen 1982 (3) SA 571 (T) at 576B-C, they may simply be
indicative of an error. And at (576G-H) it is stated that not every error made by a witness
affects his credibility; in each case the trier of fact has to make an evaluation; taking into
account such matters as the nature of the contradictions, their number and importance and
their bearing on other parts of the witness’ evidence.’

[9] In Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty)
Ltd 1986 (2) SA 555 (A) at 564G-H: Corbett JA observed that:
‘The general principle is that an applicant for special leave to appeal must show, in addition
to the ordinary requirement of reasonable prospects of success, that there are special
circumstances which merit a further appeal to the Appellate Division. This Court will be the
arbiter as to whether such special circumstances exist.’

[10] I turn to deal with the appellant’s contentions. The appellant attacked the
admissibility of the medical report (J88) contending that it did not comply with
the provisions of s 212(4) of the Criminal Procedure Act 51 of 1977 (the CPA).
He complained about the procedural acceptance thereof in that the medical
report was not properly completed and the qualifications of the doctor were not
properly stated. The State conceded the inaccuracies and that it was wrongly
admitted. However the State submitted that in view of the nature of the defence
advanced by the appellant, the medical report does not take the appellant’s case
any further and I agree with the State’s submissions. The medical report simply
becomes a neutral fact. The appellant did not dispute sexual intercourse with the
complainant but averred that it was consensual, which the complainant denies.
Even if one excludes the medical report, the trial court relied on her evidence
which was corroborated by other State witnesses.

[11] The appellant also contended that schedule 2 of s 68(2) of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007,
amended the Magistrates’ Court Act 32 of 1944 and provides that a judicial
officer must be assisted by two assessors in terms of s 93ter(2) of the
Magistrates’ Court Act, in cases of rape. It probably became clear to counsel for
the appellant that his interpretation of s 93ter(2) was incorrect. The essence of
the State’s contention was that the date of commencement of the amendment of
the Act is still to be proclaimed. The present position is that s 93ter(2) of the
Magistrates’ Act gives the presiding officer a discretion to use assessors, except
where the charge is murder. This court in Gayiya v S [2016] ZASCA 65; 2016
(2) SACR 165 (SCA) referred to Chala & others v Director of Public
Prosecutions, Kwazulu-Natal & another 2015 (2) SACR 283 (KZP) and
confirmed the position that, the presiding officer is obliged to use assessors in

cases where an accused is charged with murder only, unless the accused person
elects otherwise.

[12] I now turn to discuss the contention that the trial court applied an
incorrect test in that the court required the appellant to prove that his version of
the facts was probable. It is quite clear from the tenor of the judgment as a
whole, that in arriving at her conclusion, the magistrate had had regard to the
credibility of all the witnesses. On the contrary the record reveals that the
magistrate made a proper assessment and analysis of all the evidence, by
amongst other things, weighing the strength and the weaknesses of the State’s
case vis-ä-vis that of the appellant, including the probabilities and
improbabilities. It is axiomatic that an examination of the probabilities cannot
be done in a vacuum. Such an exercise requires an analysis and evaluation of
the evidence as a whole. (See S v M 2006 (1) SACR 135 (SCA) para 189.)

[13] On the facts of this case, the State proved beyond reasonable doubt that
she did not give consent to the intercourse that took place. The evidence is clear
that she could not have said that her boyfriend should lock her inside the
bedroom, if she had a secret visitor in mind in the person of the appellant.
Clearly she did not consent when she realised that it was the appellant on top of
her, she screamed and cried prompting the appellant to put his hand on her
mouth. She could not have consented to have sexual intercourse when she knew
very well that she had a tampon inside her as she was menstruating. She even
refused to have sexual intercourse with her boyfriend earlier in the day for the
same reason that she was having her period. She immediately reported to her
boyfriend and others that she had been raped and reported the matter to the
police and was examined by a doctor on the same day. If the version of the
appellant, that the consent should be inferred from the time when he got onto

the bed next to her, then its improbability becomes glaring because she
screamed and cried upon realising that it was the appellant on top of her.

[14] It is easy for one to trivialise the shock and trauma that a rape victim
experiences and to conclude that she faked a rape. This court should be guided
by the facts as played out by the evidence during the trial. On a conspectus of
all the evidence including the appellant’s version the complainant could not
have consented to have sexual intercourse with the appellant. Her boyfriend was
in the house he could have come into the bedroom at any time during the night.

[15] Based on the above considerations, I am of the firm view that the
appellant failed to demonstrate any special circumstances which merit a further
appeal to this Court – therefore special leave to appeal was justifiably refused.
There are no reasons to vary the order of the courts below, including the
decision of the two judges of the SCA. It is not of great public importance, nor
is this a case where without leave a grave injustice would result.

[16] The application for special leave to appeal is refused.

_______________________

J B Z Shongwe

Judge of Appeal

Appearances

For the Appellant:
L Janse Van Rensburg

Instructed by:

BBM Attorneys, Cape Town;

Symington & De Kock, Bloemfontein.

For the Respondent:
H Obermeyer

Instructed by:

Director of Public Prosecutions, Grahamstown;

Director of Public Prosecutions, Bloemfontein.

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
7 September 2016
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.
* * *

THOBANI NOTSHOKOVU V THE STATE

The Supreme Court of Appeal today refused an application for special leave to appeal.

The application was in terms of s 17(2)(f) in terms of which the President of this court could
in exceptional circumstances refer the decision refusing leave to the court for reconsideration
and, if necessary, variation thereof.

The SCA decided to refuse the special leave because it was of the view that no special
circumstances existed justifying or meriting a further appeal based on the facts of the case.

This court was of the view that even the high court and the two judges of the SCA who
considered an application for leave to appeal acted correctly. There is overwhelming
evidence that the complainant did not give consent to the sexual intercourse. Therefore the
State proved beyond reasonable doubt that she was raped and that the appellant’s version was
not reasonably possibly true.