THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:  488/09

J G VAN DER WATT

Appellant

and

THE STATE

Respondent

Neutral citation: Van der Watt v The State (488/09) [2010] ZASCA 22 (23March 2010)

Coram:
CLOETE, TSHIQI JJA and SALDULKER AJA

Heard:
15 February 2010

Delivered:
23 March 2010

Updated:

Summary:
Rape – single witness – many indications that complainant’s evidence
fabricated – accused’s version reasonably possibly true.

___________________________________________________________________________________
_
ORDER

On appeal from: North Gauteng High Court (Pretoria) (Legodi and Jooste JJ sitting as
court of appeal).

1.
The appeal is upheld.
2.
The order of the court a quo is set aside and substituted with the following:

‘The appeal is upheld. The conviction and sentence are set aside’

JUDGMENT
_____________________________________________________________________

TSHIQI JA (CLOETE JA and SALDULKER AJA concurring):

[1] On 21 July 2003 the appellant was convicted in the regional court, Pretoria, of
having raped the complainant, Mary Sesane, his domestic worker. The rape was alleged to
have taken place in her room which was inside his yard at a distance of 10 metres from the
main house, where he lived with his wife and children. On 30 September 2003 he was
sentenced to 10 years’ imprisonment. The appellant admitted that sexual intercourse had
taken place but pleaded consent. On 26 September 2005, his appeal to the Pretoria High
Court was dismissed and he now appeals with leave of that court, against both conviction
and sentence.

[2] The layout of the appellant’s home is relevant in assessing the credibility of both the
appellant and the complainant for reasons that will become apparent. The layout of the
appellant’s home was described by the appellant and his evidence in this regard was
confirmed by his wife. He testified that the main house was situated in the middle of the erf
which measured 24 metres wide. A flat which was occupied by his son was also situated
on the erf approximately 10 metres away from the right side of the main house. The
complainant’s room was attached to the flat and the two rooms were separated by a
kitchen measuring two by three metres. The complainant’s room was situated

approximately two metres from the flat and approximately ten metres from the nearest
room in the main house. The nearest room of the main house was occupied by one of the
appellant’s children. The child’s room nearest to the complainant was directly next to a
bathroom and then there was the main bedroom. The complainant’s room was
approximately two metres from the neighbouring wall. On the neighbour’s property, the
neighbour’s domestic worker’s room was the closest to the complainant’s room. Her room
was approximately two metres from the wall, then another two metres from the wall to the
complainant’s room. The neighbour’s main bedroom window was approximately nine
metres from complainant’s room. The neighbour’s domestic worker was working on the
night of the incident. This evidence on the lay-out remained unchallenged except in
relation to whether there was a garage or not. According to the complainant there was a
garage. According to the appellant, whose version was corroborated by his wife, by the
time that the alleged rape took place the garage had been converted into a flat in which his
eldest son was sleeping.

[3] The complainant was a single witness in regard to the rape. She testified that during
the early hours of 30 January 2000 at approximately 01h40, while she was sleeping in her
room the appellant knocked on the door of her  room and called her name. She quickly put
on a T-shirt and skirt. She opened the door and the appellant came in carrying a small fire-
arm wrapped in a T-shirt and a 2 litre coke. His upper body was naked and he wore short
pants and slippers. The appellant then instructed her not to make a noise, but to obey his
instructions. He placed the 2 litre Coke on top of the table together with the firearm. He
locked the door and told her that he wanted to have sexual intercourse with her. She
asked him why he wanted to sleep with her as he had a wife. The appellant told her that
his wife was drunk. She told him that she would not be in a position to do so because she
did not come there to work for him and to sleep with him as well. He then ordered her to lie
on top of the bed, he put on a condom, took off her panties and lifted up her skirt and
started having sexual intercourse with her. While he was having sexual intercourse with
her, he heard the garage door open and the appellant said he would go and check who
was opening it. The appellant went outside and she locked the door.  After a while he
came back, knocked, shouted her name and asked her to open the door. She did not do
so and kept quiet.

[4] The following morning at 07h30 he returned and asked her to open the door which
she did. She noticed that his slippers were still there. He asked her if she was alright and
told her that she should not tell anybody what had happened earlier that morning. He came
back for a second time and requested her politely to go to the kitchen  to clean the dishes
and sweep the floor. He returned for a third time and borrowed R20 from her because he
wanted to go to a doctor. She gave him the R20 and he again told her never to tell
anybody of what had happened. She did what he had requested her to do in the kitchen
and after she had taken a bath, went to Atteridgeville to ask her younger sister to show her
where the police station in Pretoria West was. Her sister accompanied her to the police
station where she laid a charge of rape against the appellant. The police sent her for a
medical examination.

[5] A completed report by an authorised medical practitioner on the completion of a
medical legal examination form (form J88) was handed in by agreement and the doctor
who had completed it was not called to testify. On the J88 the doctor described the injury
to the complainant’s labia minora as an ‘abrasion 5 o’clock position’ and concluded that
her genital  injuries were ‘compatible with forcible penetration of vagina with large object
like penis’. The schematic drawing of the findings section of the form reflects a single
abrasion as described.  No further injuries were noted and no other substantial medical
conclusions can be gleaned from the J88. The magistrate dealt with these injuries in the
following manner:
‘The evidence of the complainant is furthermore supported in some respects by the
medical evidence. The medical report showed swelling on the private parts as well as
abrasions. The doctor’s comment was that the injuries were compatible with forceful
penetration of the vagina with a large object like a penis.’

This summation of the doctor’s findings by the magistrate is inaccurate. The medical report
makes no mention of ‘swellings’ on the private parts and refers to ‘abrasion’ and not
‘abrasions’ as stated by the magistrate. The magistrate also does not state in what
respects the evidence of the complainant is supported by the medical evidence. It was
common cause that sexual intercourse had taken place. The doctor’s conclusion is not that
the injury she found was only compatible with forceful penetration.
[6] The version of the appellant was that he went to the complainant’s room late in the

evening of 29 September 2000 after his wife and youngest son had gone to bed. They
started chatting, which was not unusual between them because on occasions when he
worked night duty, he would be at home during the day and they usually sat together
watching television whilst his wife was at work. Whilst they were chatting that evening he
saw her breasts through her blouse which was not buttoned up and asked her whether she
did not want to have sexual intercourse. He stated that such a thought had previously
occurred to him whilst they were alone in the house. She responded that she was afraid of
his wife. He told her that she was asleep and offered to give her money. She agreed on
condition that they used condoms because she was not on contraceptives. He stated that
the complainant had condoms in a margarine container but he decided not to use them
because some of them had already been used. He told her he had condoms and would go
and fetch them from the house. He asked if she wanted anything from the house and she
said that she only wanted cooldrink. He came back with the cooldrink and a condom and
they had sexual intercourse. At some stage he informed her that he was tired. They
changed positions and he climbed on top and they continued. He again told her he was too
tired to continue and they ended the intercourse before he ejaculated. He took a sip of the
cooldrink, took off the condom, put on his clothes and left, leaving his slippers and the
condom behind.

[7] The following morning he went back to her room and knocked. She opened the door
for him and he borrowed R20 from her to buy milk. He told her that he would go to the
garage to buy milk. She gave him his slippers. After he had coffee he again went to the
room to tell her that he was going to the bank to withdraw money. He asked her if she was
fine and whether she was cross with him and she said she was not. When he came back
at approximately 13h00, the complainant had left.

[8] The version of what happened in her room the following day is for the most part
common cause. On either version, it is clear that when the appellant came to her room the
following morning she opened for him without resistance. It is also not in dispute that she
gave him a loan of R20 willingly. The complainant came back to his home the following
Tuesday in the company of three police officers. He stated that on this day he could not
pay her salary because he did not have enough money but only paid her R70; comprised
of R50 for the sexual intercourse and R20 for the loan. The payment of R50 and why it

was paid became a bone of contention because the complainant denied that she
accepted the R50 and also denied that there was an agreement to pay it in exchange for
the sexual intercourse. The appellant’s wife corroborated his version that they paid the
R50 to the complainant. Although his wife could not testify that this was indeed paid in
consequence of an agreement between the appellant and the complainant; her testimony
was that according to her this money was paid for the sexual intercourse.

[9] The magistrate rejected the appellant’s version that the R50 was for sexual
intercourse, and stated that she was of the ‘opinion’ that the money was for ‘her duties not
for sex.’ It is not clear on what basis the magistrate formed this opinion as it was neither
the complainant’s nor the appellant’s version.

[10] Related to the divergence pertaining to the payment of R50 is a document produced
at the instance of appellant during the course of the trial. This document was produced
after the complainant had been excused after leading her evidence. She was recalled and
the appellant through his legal representative produced the document that was written by
his wife on his instructions and given to the complainant to sign as an acknowledgement of
moneys she had received. This document specifies that the complainant was given an
amount of R670 – ‘Januarie se salaris van R350 plus R250 vir Desember plus R50 wat hy
haar ekstra gee plus R20 wat hy haar geleen het.’ Both the appellant and his wife were
cross-examined at length on this document and the reason why this document does not
specify that the R50 was for sexual intercourse. His explanation was that the document
was given to the complainant to sign as proof that she had been paid her full salary.  The
failure to specify the reason for the payment of the R50 seems to have influenced the court
below in rejecting the version of the appellant with regards to the reason for its payment.
The court below found it strange that the appellant’s wife did not specify in the document
signed by the complainant that the R50 was for sex. The learned Judge’s reasoning was
that the appellant should have found it prudent to specify that the R50 was for sex because
at that stage he had already been arrested on rape allegations. This conclusion by the
court below loses sight of the fact that the purpose for which the document had been
prepared was to prove that the complainant had been paid her salary and all her
outstanding moneys. On either version, it is clear that the R20 was for the loan and that
the R50 was not part of the complainant’s salary. If the version of the appellant that the

R50 was for sexual intercourse is rejected on the basis that it is not true, it is inexplicable
why the appellant would decide to give the complainant R50 extra for no reason; a few
days after she had laid a charge of rape against him. In my view therefore nothing turns on
this omission. For the same reasons, it is irrelevant that the appellant’s wife was the scribe
of the document.

[11] When evaluating the evidence of the appellant, the magistrate stated that it was
riddled with contradictions and inconsistencies and that it could not be reasonably possibly
true. The magistrate found the complainant a satisfactory witness in all material respects.
In reaching that conclusion she relied on her performance in court; supposedly her
demeanour and the medical evidence. It is therefore necessary to deal with these findings
by the magistrate, and to the extent of their relevance, how the court below approached
this evidence and the findings by the magistrate in dismissing the appeal.

[12] As stated above, the magistrate’s description of the injuries appearing in the J88
was inaccurate. Her conclusion that the medical report supports the version of the
complainant was also wrong because the medical conclusion does not isolate forcible
penetration as the only cause for the abrasion. It is therefore not surprising that she came
to a wrong conclusion and thereby misdirected herself in this regard. The version of the
appellant on the other hand is consistent with the findings in the J88 and gives a probable
explanation for the clinical findings in that the appellant described the sexual intercourse
as ‘rof’ and further stated that after he told the complainant that he was tired she climbed
on top of him until he informed her that he was tired. His version suggests that they had
wild intercourse for a lengthy period of time. Sheer logic dictates that a single abrasion can
not be unexpected under these circumstances.

[13] It is inconceivable on what basis the magistrate found the evidence of the
complainant honest and reliable in the midst of the following improbabilities:
The layout of the yard shows that the complainant’s room was a mere two metres from the
room in which the appellant’s son was sleeping, two metres from the neighbour’s wall and
ten metres from the nearest room in the main house. The appellant’s wife and his children
were all at home that night. If the complainant’s version regarding the time of the rape is
accepted; then it means that the appellant’s son was in a flat two metres from the

complainant’s room sleeping. It is improbable that the appellant went out of his bedroom
carrying a fire-arm, knocked on her door and raped the complainant in her room at that
time of the night, because in so doing he would be taking a huge risk that the complainant
would not react nor act in such a manner as to wake up his son who was a mere two
metres away from them; or his other family members who were in the main house. It is
further improbable that when the appellant heard a noise from the garage; appreciating a
possibility that it could be his son; would go out of his domestic worker’s room during the
early hours of the morning without fearing that his son would see him or find his behaviour
bizarre. That, according to her, he then came back and knocked and shouted her name,
with no regard for the son on whose account he had interrupted the sexual intercourse is
more astounding. The same applies to her evidence that he came back expecting her to
open her room for him again; a few minutes after he had just raped her. What makes far
more sense is the appellant’s version that he went to her room and engaged in sexual
intercourse with her by consent clearly with no fear that the complainant would do
something to wake up his family. There is also nothing improbable in his version that he
interrupted the sexual intercourse because he was tired.

[14] The other missing piece in the puzzle of her evidence is the reason why the
appellant was carrying a bottle of 2 litre coke when he came into her room. There is no
cogent reason for the possession of the 2 litre Coke on her version. However the evidence
of the appellant that he brought the 2 litre Coke because she asked for it explains this.
According to the complainant, he was carrying both a fire-arm and the 2 litre coke. It could
be inferred from her testimony that the purpose for carrying the fire-arm was to threaten or
intimidate her. Even so, her evidence that the appellant was carrying a fire-arm falls to be
rejected because of the contradictions on whether she was indeed threatened or not with
the fire-arm. In response to a question by the defence during cross-examination on why
she did not scream, she stated that she did not scream because she saw the fire-arm and
had been told not to scream. When asked to explain her testimony in that regard she gave
a meaningless response. She was then specifically asked whether the appellant had said
he would shoot her if she screamed and she responded that indeed the appellant had
mentioned that. She was then asked to state what the appellant said exactly thereafter and
the cross-examination proceeded as follows:
‘Wat het hy gesê mevrou? – He told me: “Mary you should not shout, you should not make a noise

or anything, get on top of the bed and I should sleep with  him, if not so, here is the firearm.” As a
result of this worship I did as he commanded me to.

Dit is baie interessant, want u sê dit nie in u verklaring nie en u het ook nie in u getuienis in
hoof gesê nie, waarom nie? – The reason why I did not mention it, maybe the last portion, I
mentioned it above my sta tement that I should not shout, I should just remain silent.

Mevrou u antwoord nie my vraag nie. Waarom het u dit nie in u verklaring gesit nie en
waarom het u nie vandag in die hof voordat ek vir u vrae gevra het dit vir die aanklaer en die hof
gesê nie.? Hoekom steek u dit weg? – The reason why I did not mention it is because I have
mentioned it already in my statement.

Watter “statement?” – Your worship the statement that has been handed in as an exhibit, I
only mentioned that he had a firearm.

Mevrou kom ons vergeet dit, dit is nie my punt nie. U sê,’

Then the court interjected and the following exchange took place:
‘Listen they say, at no point in time in the statement, in your evidence in chief and up to so far you
never made mention of the fact that accused person threatened you with the firearm and promise
to kill you, now why is that? – Your worship I did not explain, because in my statement I explained
that he had a firearm.’

On being questioned further on this aspect by the defence the following exchange took
place:
‘Mevrou baie mense dra net vuurwapens by hulle, niemand raak ook net sommer bang omdat
iemand ‘n vuurwapen dra nie, ‘n mens raak eers bang as iemand jou dreig. – I was shocked and I
was afraid because he was in possession of this firearm and he was in my bedroom.’
‘
Maar hy het u nie gedreig nie, is dit korrek? – He did not threaten me he only said: “Do not
make anything, here is the firearm.”

U het dit nie so gesê nie u het net gesê in u verklaring hy het ‘n vuurwapen gehad, u
probeer nou die indruk skep by hierdie hof dat hy u gedreig het met die vuurwapen. – That is what
I said, that he had a firearm in his possession when he came to my bedroom.

En dit beteken eintlik maar niks nie. – I know that the duty of a firearm is to kill a person,
and I was shocked and afraid when I saw this firearm.’
It can be inferred from her contradictions on whether she was indeed threatened with the
fire-arm that the complainant fabricated her evidence in an attempt to bolster her version
that she was coerced to engage in sexual intercourse. The court a quo misdirected itself
by finding that the complainant ‘did not in any way contradict herself’ in regard to her

version as to the fire-arm. The appellant on the other hand was truthful in that he did not
deny that he owns a fire-arm. He in fact testified that he owned several fire-arms and that
he kept his fire-arms in a safe in his bedroom. He stated that the safe was very close to his
bed in which he slept with his wife and that the door of the safe made a loud noise when it
is being opened. He testified that if he had tried to remove the fire-arm from the safe that
evening, his wife, who was already asleep in their bed would have heard the noise. His
wife confirmed that she would have heard him if he tried to open the door of the safe that
evening because it makes a loud noise and she is a light sleeper. The court a quo said it
was ‘not convinced’ by the denial of the appellant that he had a fire-arm as he could have
taken the fire-arm out of the safe earlier without his wife knowing. The correct approach
would have been to consider whether the appellant’s version that he had no fire-arm could
reasonably possibly have been true, particularly in the light of the complainant’s
contradictory evidence which I have quoted at some length because of its importance.

[15] The behaviour of the complainant the following day is inconsistent with her version
that she was raped. The complainant woke up the following day and continued with her
normal duties as if nothing had happened until she completed what was necessary.
Nothing prevented her from leaving at the earliest available opportunity that morning to go
and report her rape as she claims she intended to. There is absolutely no reason why she
would lend an amount of R20 to a man who had just raped her carrying a fire-arm, a few
hours before. The version of the appellant on the other hand explains his behaviour the
following day. As stated above his behaviour shows that he had no fear that he would be
caught. It is also not surprising that he would go to her room, early in the morning to ask if
she was alright. This behaviour would indeed be nonsensical if he did so after having
raped her a few hours previously. It is also not unusual that he would ask her for a loan of
R20 under the circumstances testified to by him, but not remotely probable that she would
lend him money after he had raped her earlier that morning.

[16] The appellant proferred an explanation as a probable reason why the complainant
laid a charge of rape against him. The appellant stated that he thought that the
complainant incriminated him falsely because of a conflict between him, his wife and the
complainant, involving his child, a few days before. When the complainant was asked
whether he had encountered any problems with the appellant, she stated that there were

no problems. During cross-examination, she was confronted about an incident that has
had occurred a few days earlier when she was confronted by the appellant and his wife
because their youngest child was found outside the yard, and she was threatened with
dismissal. She admitted the incident thereby contradicting her earlier evidence to the
contrary. It is worth commenting on the approach adopted by the court below in dealing
with this incident. The court below stated that it was suggested that this incident was a
possible motive by the complainant to incriminate the appellant falsely. The court found
that such a motive was too remote and that this was so because the dispute was resolved
amicably. The court therefore concluded that the complainant had no motive. It is doubtful
that the court was correct in simply ruling out this incident as a possible motive. The
complainant admitted that the incident occurred. She was not only confronted by both the
appellant and his wife but was also threatened with dismissal. It is trite that an accused
may tender an explanation why he believes he has been falsely implicated and it may turn
out another reason unknown to him exists or is more probable. The accused is called upon
to speculate, not testify on a matter of fact. In such circumstances he cannot be blamed if
it turns out that his explanation is found to be wanting.1 It would therefore be wrong to
criticise the appellant if it turned out that this was not the reason. What is important is that
the appellant was truthful when he relayed the incident to the court and the incident cannot
be ruled out as a possible reason why the complainant laid false charges against him.

[17] In an attempt to bolster her evidence, the complainant testified that there was a
garage outside and that it was as a result of noise emanating from the garage that sexual
intercourse had been interrupted. This evidence was a clear fabrication. The appellant’s
evidence of his yard was not disputed and was further corroborated his wife, who also

1 R v Mthembu 1956 (4) SA 334 (T) at 335H-336B; S v Kubeka 1982 (1) SA 534 (W) at 536D-537D and
cases there cited; S v Ramochela 1997 (2) SACR 494 (O) at 496a-e.

denied that there was a garage at the time. The appellant’s son also corroborated this
evidence in as far as he confirmed that he slept in a room outside the main house (which
could only have been a flat). The court a quo found that the presence of the garage was
immaterial because the real issue was whether or not there was noise in that direction. In
my view the existence or not of the garage is material because it deals with the reason
advanced by the complainant on why the sexual intercourse was interrupted. She
repeatedly said that the appellant had referred to ‘the garage door.’ He could not have
done so. There was no garage. This in turn affects the credibility of the complainant. It
follows that if there was no garage, then it can be inferred that there was no noise coming
from a garage and that this version was fabricated by the complainant.

[18] The other clear fabrication found in the complainant’s evidence relates to the
alleged alcohol consumption by the appellant’s wife. The appellant denied that he said this
to the complainant. His wife stated that she is and had always been a teetotaler. This was
not challenged during her cross-examination. No reason comes to mind on why the
appellant who admitted that he had sexual intercourse with the complainant on his request
and who further admitted that he allayed her fears pertaining to his wife by telling her that
his wife was asleep, would deny that he had instead said that she was drunk. A denial of
this is of no moment.

[19] The magistrate concluded that the appellant’s evidence was full of contradictions.
Apart from the fact that such contradictions are blatantly absent from her judgment, this
conclusion is unfounded and amounted to a clear misdirection. In support of this wrong
conclusion, the magistrate further stated that the appellant stated that ‘the complainant
consented to the sexual intercourse, but could not explain why she was injured. Then later
he said it was because she was rough’.

This probable explanation by the appellant for the injuries of the complainant was not an
afterthought nor a contradiction by the appellant. On the contrary it was consistent with his
earlier version during his evidence that the sexual intercourse was wild.

The appellant was a truthful witness who admitted that sexual intercourse had taken place
to which there were no witnesses in spite of the possible problems this would probably

cause between him and his wife.

[20] The magistrate’s criticism of the evidence of the appellant’s wife is also unfounded
and was based on wrong assumptions. The appellant’s wife did not testify that she would
do anything to keep her husband out of jail. She said that she would do anything to protect
him, but immediately added that she believed that what he said was the truth. It was also
incorrect for the magistrate to find that she could not testify about what had occurred at
night because she had gone to sleep. Her evidence in this regard was that she would have
heard her husband if he woke up as she was a light sleeper and because they slept
together like spoons. She also stated that she would have heard him if he opened the gun
safe because it made a lot of noise when it was being opened. In S v Gentle2 Cloete JA
stated:
‘
The representative of the State submitted on appeal that (I quote from the heads of
argument):
“(T)here was sufficient corroboration or “indicators” to support the occurrence of the rapes.”
It must be emphasised immediately that by corroboration is meant other evidence which supports
the evidence of the complainant, and which renders the evidence of the accused less probable, on
the issues in dispute (cf R v W 1949 (3) SA 772 (A) at 778-9). If the evidence of the complainant
differs in significant detail from the evidence of other State witnesses, the Court must critically
examine the differences with a view to establishing whether the complainant’s evidence is reliable.
But the fact that the complainant’s evidence accords with the evidence of other State witnesses on
issues not in dispute does not provide corroboration. Thus, in the present matter, for example,
evidence that the appellant had sexual intercourse with the complainant does not provide
corroboration of her version that she was raped, as the fact of sexual intercourse is common
cause. What is required is credible evidence which renders the complainant’s version more likely
that the sexual intercourse took place without consent, and the appellant’s version less likely that it
did not.’

The appellant’s wife was truthful and her corroboration of the appellant’s testimony should
have been taken into account in evaluating the evidence.

2 2005 (1) SACR 420 at 421 para [18].

[21] The court below also criticised the appellant’s evidence. He was criticised for a
failure to give an explanation as to why he left his slippers in the room. The court below’s
reasoning is premised on a conclusion that he would not have wanted to leave any tracks
in the complainant’s room. This finding does not take into account the converse inference
that the appellant may have left his slippers there because he did not fear that the
complainant would use them against him because there was consent. Of course if the
appellant had indeed raped the complainant, he would have ensured, as stated by the
court below, that he left no track in the complainant’s room.

[22] In criticising the evidence of the appellant, the court a quo made a further factual
error in stating that the appellant testified that he watched pornographic movies with the
complainant. His evidence was that the movies were ‘rof’. When he was cross-examined
further, he stated that they watched M-Net stories but did not discuss sex; although the
thought had occurred in his mind. It is this factual error that led the court a quo to conclude
that it is very uncommon that a female domestic worker will watch such movies with her
‘master’ male employer, unless there are some sort of emotional feelings. Apart from the
fact that this Court has in the past criticised such bald generalisations,3 this conclusion was
based on an incorrect factual summation of his evidence.

[23] The test applicable in criminal proceedings is that the State ought to prove the guilt
of an accused beyond a reasonable doubt. The trial court must accept the version of an
accused unless it is found that this is not reasonably possibly true. In light of the
improbabilities and contradictions in the complainant’s version, the magistrate and the
court a quo misdirected themselves in accepting her version and rejecting the version of
the appellant. There is no basis for rejecting the version of the appellant.

[24] I therefore make the following order:
1.
The appeal is upheld.
2.
The order of the court a quo is set aside and substituted with the following:

3 S v Scott Crossley 2008 (1) SACR 223 (SCA).

‘The appeal is upheld. The conviction and sentence are set aside.’

____________________

Z L L TSHIQI

JUDGE OF APPEAL

APPEARANCES:
APPELLANT:
L Augustyn

Instructed by Pretoria Justice Centre, Pretoria;

Bloemfontein Justice Centre, Bloemfontein

RESPONDENT:
R T Mareume

Instructed by Director of Public Prosecutions, Pretoria;

Director of Public Prosecutions, Bloemfontein