THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 1285/2017
In the matter between:

THABO FLOYD ZULU                                                                                   APPLICANT

and

THE STATE

RESPONDENT

Neutral citation:
Zulu
v
The
State
(1285/2017)
[2019] ZASCA
(11 December 2019)
Coram:
Maya P, Wallis and Nicholls JJA and Dolamo and Hughes AJJA
Heard:
14 November 2019
Delivered:  11 December 2019
Summary: Application for special leave to appeal against refusal of leave to appeal –
no reasonable prospects of success – application dismissed – reference for
reconsideration in terms of s 17(2)(f) of Superior Courts Act 10 of 2013 – dismissal
upheld.

___________________________________________________________________

ORDER
___________________________________________________________________

On application: Gauteng Division of the High Court, Johannesburg (Spilg J and
Mkhari AJ):

The application for special leave to appeal is dismissed.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Hughes AJA (Maya P, Wallis and Nicholls JJA and Dolamo AJA concurring):

[1] The applicant, Thabo Floyd Zulu, was convicted in the regional court
Roodepoort, Johannesburg, of the rape of an eleven year old girl (L) and sentenced to
fifteen years’ imprisonment. He initially sought leave to appeal against his conviction
from the regional court but it was refused. Subsequently, in terms of s 309C of the
Criminal Procedure Act 51 of 1977 (the CPA), he petitioned the Gauteng Division of
the High Court, Johannesburg, (Spilg J and Mkhari AJ) for leave to appeal but his
petition was dismissed. He then sought special leave to appeal against that refusal
from this court in terms of s 16(1)(b)1 of the Act. That was initially refused by two judges
of this court, but the President thereafter referred the application for reconsideration in
terms of s 17(2)(f) of the Act. The issue before us is whether any reason exists to vary
the order dismissing the application for special leave to appeal. We approach the
matter afresh unrestrained by the existing orders.

[2] The hearing was limited to whether the applicant should be granted the special
leave to appeal that he sought. It involved a reconsideration of the decision by the high
court refusing leave to appeal against the conviction and was not an appeal on the
merits. The primary test is whether the applicant has reasonable prospects of success

1 Section 16(1)(b) of the Superior Courts Act 10 of 2013 provides that ‘an appeal against any decision
of a Division on appeal to it, lies to the Supreme Court of Appeal upon special leave having been granted
by the Supreme Court of Appeal’.

in an appeal. If he does, special leave to appeal will be granted, the appeal will be
upheld and the matter remitted to the high court for it to determine the appeal against
his conviction. If not, then the application for special leave to appeal will be dismissed.
This court in S v Van Wyk & another said ‘the issue to be determined is not whether
the appeal . . . should succeed, but whether the high court should have granted leave,
which in turn depends upon whether the applicant could be said to have reasonable
prospects of success on appeal’.2

[3] A party seeking special leave needs to show that special circumstances exist
warranting a further appeal. What constitutes special circumstances was addressed
by this court in Van Wyk, where it was stated that: ‘This may arise when in the opinion
of this court the appeal raises a substantial point of law, or where the matter is of very
great importance to the parties or of great public importance, or where the prospects
of success are so strong that the refusal of leave to appeal would probably result in a
manifest denial of justice’.3 If the applicant has reasonable prospects of success in
overturning his conviction if leave to appeal is granted, the prospect of him being
acquitted of a serious offence and avoiding a lengthy term of imprisonment would
ordinarily suffice to constitute special circumstances. Whether there are reasonable
prospects of such a result depends upon the facts.

The facts
[4] I now turn to consider the factual background. On 17 December 2013, the
complainant was in the company of her aunt Ms C and her cousins, Onai and B, Ms C’s
children. The complainant’s mother, Mrs J N T, and Ms C are sisters. They had just
returned, at about 22h30, from a baby shower hosted for the applicant’s sister. Shortly
after midnight, the complainant was raped whilst asleep in her cousin Onai’s room. The
applicant, who is the father of Ms C’s children and her long-term partner, was alleged
to be the person who raped her.

2 S v Van Wyk & another [2014] ZASCA 152; 2015 (1) SACR 584 (SCA); [2014] 4 All SA 708 (SCA)
para 14.
3 Van Wyk fn 3 para 21.

[5] At the trial the complainant testified in camera, by way of Closed Circuit
Television and through an intermediary, the regional court having granted an order in
terms of s 158(2) of the CPA.  Her testimony is summarised hereafter. She said that
as they had arrived late from the baby shower, she and Onai did not proceed to her
home as planned, but instead slept at her aunt’s home which is situated in a secure
complex.

[6] Whilst she and Onai were asleep on separate beds in Onai’s room, shortly after
midnight, she heard the sliding door of the living room being pushed aside. She
explained that the sliding door could not lock and had been broken for a while. Though
the room was in darkness and she could only see shadows, she noticed that someone
had entered the room. This individual approached her bed and straightened the
blanket. The complainant stated that she was lying on her stomach and pretended to
be asleep. She then felt this person put their hands under her blanket, into her pyjama
pants touching her bottom. She noted that Onai was sound asleep as they were facing
each other. The complainant was adamant that the intruder was a male and she
confirmed this cheekily under cross-examination when she stated: ‘Because later on
he did have a penis’.

[7] The complainant testified that her assailant took his hands out from under the
blanket and went to Onai’s bed. She was afraid that he would do the same to Onai, but
instead it looked like he was merely checking up on her to see that she was asleep.
He then returned to her bed pulled the blankets off, took off her pyjama pants and
inserted his finger into her vagina, moving it in and out. She confirmed that it was his
finger as she could feel the hardness of the finger nail. The applicant then turned her
over, pulled his pants down, got on top of her, inserted his penis into her vagina and
penetrated her, just as he had done with his finger. All the while, out of fear, she
pretended to be asleep, but peeped out through her fingers to see who was assaulting
her. She was clear in her evidence that although the room was dark and her
observation was limited, the applicant was her assailant.

[8] After this horrific ordeal the applicant left the room. She heard the sliding door
again, although whether it was being opened or closed she could not say, and
immediately thereafter she telephoned her mother from her cellular phone. She only
managed to whisper ‘[hi]’ as she was afraid that her assailant would come back. They
then communicated by SMS from 12.50 am to 01.06 am, when her mother arrived and
took her to the nearby hospital. The chain of messages is significant both in regard to
its content and in relation to the timeline of events and it is set out below:
‘12.50am (L) Hi
12.51am (Mommy)
What’s wrong
12.51am (L)
PLS CUM NOW!!!!!!!
12.52am (Mommy)
Give me a clue please, I’m panicking
12.52am (L)
I THINK IT IS WAS UNCLE THABO
12.52am (Mommy)
What did you do!!
12.52am (L)
He touched in the wrong place
12.53am (Mommy)
And what else - is he around still
12.53am (Mommy)
Don’t allow him!!! Scream NOW
12.53am (L)
And put his finger but I think he thought I was asleep and he did it to Onai too
12.53am (Mommy)
I’m on my way
12:54am (L)
I’m trying to wake up Onai help
12:54am (Mommy)
I’m on my way
12:54am (L)
Cum now must I wake up
12:54am (L)
Ok
12:55am (Mommy)
Pretend to be sleeping
12:56am (Mommy)
I’m gettin in the car driving NOW
12:56am (Mommy)
Did he just touch u only!!!
12:57am (Mommy)
And the finger…. what did he do to u
12:57am (L)
He put it on my kuku
12:58am (L)
Also Onai
12:58am (Mommy)
And what else baby
12.58am (Mommy)
Did he take long
12:58am (L)
He put his thing
12:59am (Mommy)
Did it go inside
12.59am (L)
Yes.’

[9] The gist of the SMS exchange between the complainant and her mother is that
she identified her rapist as the applicant. She also described how he first inserted his
finger in her vagina and thereafter he penetrated her vagina with his penis. She
pleaded with her mother to come and fetch her immediately. Whilst communicating via
SMS they kept each other abreast of their respective situations, the child on the
situation in the house and the mother, of her whereabouts as she made her way to her.

[10] Dr Joubert, assisted by a female nurse, conducted a medico-legal examination
on the complainant when she arrived at the hospital with her mother. His observations
were consistent with her having been raped and the correctness of this was not
challenged. Samples of DNA were collected by way of three vaginal swabs from the
vulva, vestibule and introitus of the child’s vagina. These swabs, together with the
complainant’s pyjama pants, were sealed in evidence bags and sent for forensic
analysis. The medico-legal evidence of Dr Joubert was not admitted by the applicant,
hence his testimony. The complainant’s statement was taken at the hospital by a
female police officer in attendance. The sexual assault kit containing the samples taken
from the complainant, together with the bagged pants, was handed to the investigating
officer, Sergeant Bojane, at the hospital. Sgt Bojane testified that he kept these items
in a safe at his office until he handed them over to the forensic personnel for analysis
at the Forensic Science Laboratory in Pretoria.

[11] The applicant’s testimony amounted to a bare denial. He was adamant that he
did not rape the complainant. He testified that he was in Meadowlands at his mother’s
home that entire day, but he attended the baby shower for a short while, whilst Ms C
and the children were still there. He stated that he only returned home at 12.40am with
Ms C opening the main door to let him. Ms C was called as a witness to corroborate
his version. They were in bed together when the complainant’s mother arrived at the
house and confronted them. The result is that the sole issue at the trial was one of
identification of the person who raped L. This in turn can be divided into a consideration
of L’s evidence of identification and the DNA evidence. I will deal with the latter first.

The DNA evidence
[12] I have already dealt with the circumstances in which DNA samples were
obtained from L on the night of the rape. During the course of the investigations, on 20
January 2014, whilst the applicant was detained at the Krugersdorp Correctional
Centre, he consented to providing a sample of his DNA for forensic analysis. Dr
Brighten was responsible for the extraction of the sample and this was done in the
presence of the investigating officer Sgt Bojane. He stated that he collected a specimen
from the applicant by way of the buccal swab method. He recorded the sample as
13DBAA9798TF, which he personally sealed and handed to Sgt Bojane. Sgt Bojane
confirmed having witnessed the collection of the swab from the applicant and that it
was handed to him. In turn he handed the swab to the personnel at the Forensic
Science Laboratory. Sgt Bojane testified that both the sexual assault crime kit of the
complainant taken on the day of the crime and the DNA evidence collection kit of the
applicant remained sealed at all times and had not been tampered with in anyway.

[13] Captain Masehla, a forensic analyst based at the Forensic Science Laboratory,
Pretoria, testified that he conducted the analysis of both specimens on 11 July 2014.
He confirmed the serial numbers on both samples, the one being the vaginal swab
(ref:13D1AD0064), evidence bag with the pants (ref: PAD000626323) and the
reference sample from the applicant (ref:13DBAA9798EP).

[14] He was asked to explain why different letters appeared at the end of the serial
reference of the applicant’s sample. He clarified that where the sample letters had
changed from ‘TF’ at the end to ‘EP’ it denoted merely that the DNA kit’s reference
completed by the doctor ended with ‘TF’ and the pouch that the sample was in ended
with the reference ‘EP’.

[15] Captain Masehla testified that the samples were stored in a locker in his office
and he was the only person who retained the key, which he kept on his person at all
times. He personally removed the samples from the locker and on his inspection they
showed no signs of having been tampered with. The Captain explained that he
received three vaginal swabs and pyjama pants of the complainant and a reference

sample from the applicant. His analysis concluded that the DNA found on all the vaginal
swabs and on the pyjama pants matched that of the reference sample of the applicant.

[16] Still on the issue of the DNA, the applicant provided no explanation for his DNA
being found in the complainant’s vagina and her pants: ‘Well, I am not an expert in that
field and I think an expert would be the right person to answer that question. Like I said I did
not rape that young lady. And I was in the house, but I was in the bedroom sleeping upstairs’.
(My emphasis.)
This evidence was significant because it involved an acceptance of the correctness of
Captain Masehla’s analysis and its conclusion that the applicant’s DNA was a match
to all the samples taken from L. At the end of his evidence-in-chief he undertook to
have his own expert explain how his DNA was found in the complainant’s vagina as
he had not raped her. Even though he was provided with ample time by the regional
court to procure an expert, none materialised. During cross-examination, he
vehemently disputed that it was his DNA found in the complainant’s vagina, but he
could not advance an explanation for this in the absence of a well-founded forensic
challenge to Captain Masehla’s evidence.

[17] In argument in this application the applicant attempted to dispute the chain of
custody of the evidence in respect of the DNA, but this was misplaced. From the record
of the proceedings it is evident that the applicant failed to found a basis to dispute the
chain of custody. There was a misconception in this regard that unless every person
who had at any stage handled the samples was called as a witness it could not be
established that the samples had not been contaminated or tampered with. That was
incorrect. The samples taken on examination by Dr Joubert were sealed in his
presence by the nurse assisting him and she was responsible for placing L’s pants in
the evidence bag. Dr Joubert’s unchallenged evidence was that the swabs and pants
were locked into a sealed container by his nurse and that it would have been handed
directly to the investigating officer. That corresponded with the evidence of Sergeant
Bojane. Some point was sought to be made of the fact that the identity of the nurse
who assisted Dr Joubert and that of the nurse who handed the evidence bags to
Sergeant Bojane does not appear from the record, but in the absence of evidence of
tampering with the evidence bags this was neither here nor there. The overwhelming

probability was that Dr Joubert’s nurse handed the evidence bags to Sergeant Bojane
after sealing them herself.  As to the sample taken from the applicant by Dr Brighten,
it was sealed immediately and given to Sergeant Bojane, who delivered it to the
laboratory. Finally, the evidence of Captain Masehla was that there was no opportunity
for tampering while the evidence was in his possession. The unchallenged position
was that there had been no interference with the various samples. The attempt to raise
a dispute in that regard involved the improbable proposition that somehow the swabs
taken by Dr Joubert and the pants had become contaminated with the applicant’s DNA.
How this could have occurred is quite unclear and it was never suggested that this was
the case.

[18] The applicant’s counsel refused to allow the s 212(4) affidavit to be admitted
and instead demanded that the forensic analyst, Captain Masehla, be called. This led
the regional magistrate to rule that both Captain Masehla and the doctors be called,
which is what happened. The reason behind this emerged from the cross-examination
of Captain Masehla. Counsel said that having examined the forensic report he had a
crucial question for the forensic analyst. It then transpired during cross-examination of
the Captain that in fact the applicant’s counsel was confused as regards the XX
(female) and XY (male) chromosomes. Pertinently, the exchange is set out below:
‘[Mr Mashabane:] Then if the male person you need semen then why now you not mark [the
complainant’s samples] as XX?
[Masehla:] The marking of XY is the marking that indicates that, that particular sample, which
is a vaginal swab the DNA result there shows that, that vaginal swab was donated by a male
individual that is why you will see it is XY, which means that vaginal swab is a semen vaginal
swab. So, the semen is donated by a male individual. That is why you will see that the vaginal
swab [of complainant] has an XY because of the semen on the vaginal swab.
Then you are saying from the XY the first XY [intervenes] --- Yes?
Tested hundred percent to the reference sample of the male person is what you saying? ---
What I am saying is that, that particular samples that was taken, which is a vaginal swab that
was taken from [the complainant], that particular sample is the DNA results there coming from
semen, is XY and the donor of the reference sample [is] Zulu Thabo [the applicant] also who
donated that reference sample is also indicated XY.’4

4 Volume 1 page 182 line 15 – 183 line 5.

[19] For those reasons there is no reasonable prospect of another court viewing the
DNA evidence as anything other than conclusive as to the applicant’s guilt. For that
reason alone, the application must fail, but that would in any event be the result on the
basis of L’s evidence that the applicant was her assailant.

Identification evidence
[20] The applicant’s attack against his conviction was also directed against whether
the State had proved beyond reasonable doubt that the complainant identified him as
the perpetrator. In this regard, his counsel argued that when dealing with the issue of
identification, caution ought to be exercised as the complainant was a single child
witness in a sexual assault case. To this end he submitted that during the course of
her testimony she had retracted her initial affirmation that it was indeed him who
entered the room and raped her. Thus, the argument went, that the complainant’s
testimony could not be relied upon because of this shortcoming.

[21] In my view, the contentions by the applicant were devoid of merit. Yes, indeed
in her initial evidence L said she was certain that it was the applicant, and in cross-
examination she conceded that she could not see clearly in the dark. But that was not
the entirety of the evidence. The regional magistrate did not lose sight of the fact that
the complainant had known the applicant virtually since birth. She knew him well and
identified him by his large head. To my mind, taking proper cognisance of the lengthy
relationship between the child and the applicant, even though it was dark and shadowy
it is improbable that she would be unable to recognise him when he was on top of her,
whilst her eyes were semi-closed, as she pretended to be asleep. It is evident from the
record that the regional magistrate was aware of the caution to be applied and did so.
The regional magistrate was mindful of the fact that she was dealing with a single child
witness in respect of a sexual assault. Correctly so, reliance was placed on s 208 of
the CPA, which provides that the evidence of a single witness is adequate to sustain a
conviction, provided that it is satisfactory in all material respects. It is trite that the
evidence of a child complainant is to be treated with circumspection and a conviction

on her evidence alone would not suffice.5 In this case it was not submitted that L was
not a good and credible witness.

[22] In the case before us, the complainant’s quick thinking and courageous actions,
by texting her mother and the speedy exit from the house to the hospital, must be
applauded. The text messages were important. Firstly, there was the identification of
the applicant as the perpetrator within minutes of the rape having occurred. There was
no opportunity for a frightened young child to fabricate a false identification and no
reason for her to do so. The fact that she said ‘I THINK IT WAS UNCLE THABO’ did
not, as submitted by counsel, introduce uncertainty. While short message services are
relatively novel it is well-established that the use of capitals is regarded as the text
equivalent of shouting. Instead she was telling her mother as emphatically as she could
who had assaulted her.

[23] The second important aspect of the text messages was that they provided a
timeline against which to measure the events of that evening. They established beyond
question that the rape occurred prior to 12.50 am. That was ten minutes after the
applicant said that he arrived home. But his evidence in regard to that was inconsistent
with that of security guard, Mr Zweli Mathome, who was stationed at the access
controlled entrance of the gated complex that night. Mr Mathome testified that he was
certain that the applicant returned to the complex at 12.25am. This certainty arose from
the fact that he checked in the occurrence book (OB). When he was taken to task about
the time being written in the OB, he supplied an honest explanation that there had been
an incident at the applicant’s unit number 33, and therefore he had to make such
entries in the OB. There was no reason not to accept this evidence. But that must have
been the very period when the rapist entered the home and committed his crime. Had
the applicant arrived home when he said he did, then he and Ms C, would have surely
heard or encountered the intruder as they proceeded to pass the room where the
complainant was being assaulted. In turn, it is impossible to believe that L would not
have heard the applicant knocking on the door and her aunt coming down stairs and

5 Mudau v S 2013 (2) SACR 292 (SCA) at para 9.

opening it before shutting it again. Had that occurred she could have cried out and
sought their assistance.

[24] The regional magistrate was alive to the fact that the complainant was a single
child witness of a sexual assault and gave proper consideration thereto in the
judgment, by the application of the cautionary rule.6 In addition, the regional magistrate
recognised that the identification of the applicant was an issue and in dealing with it
concluded, rightly so, that this case was not one of mistaken identity as the complainant
knew the applicant and was raised in front of him. In addition, Dr Joubert’s evidence
that her vagina was red, swollen and tender, absent the hymen with a watery discharge
coming from it, corroborated her testimony that she was raped. When everything was
taken together the identification of applicant as her rapist by L was supported by her
knowing him well and her immediate identification of his as the perpetrator. His version
was shown to be untrue as to when he returned home that evening. His belated
evidence that the catch on the sliding door into the living room was not broken was a
late suggestion not put to L. Then there was the gross improbability of his version which
involved a child being raped in his home by an unknown intruder at the same time as
he was arriving home and being let in by his partner, without either him or his partner
noticing anything amiss and without L hearing the second and separate entry.

[25] Given all these features there is no reasonable prospect of an appeal by the
applicant against his conviction succeeding. There is no reason to revisit the original
decision to dismiss his application and it must be confirmed. The following order is
made:
The application for special leave to appeal is dismissed.

__________________
W Hughes
Acting Judge of Appeal

6 S v Sauls & others 1981 (3) SA 172 (A).

APPEARANCES
For the Applicant:
Adv. E A Guarneri
Instructed by:
Johannesburg Justice Centre

Bloemfontein Justice Centre

For the Respondent:
Adv. S H Rubin
Instructed by:
The Director of Public Prosecutions, Johannesburg
The Director of Public Prosecutions, Bloemfontein