IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES/NO
Of Interest to other Judges: YES/NO
Circulate to Magistrates: YES/NO

Appeal no: A69/2021

In the matter between:

THABO JOB RALETING Appellant

and

THE STATE Respondent

CORAM: Opperman, J et Page, AJ

HEARD ON: 30 August 2021

DELIVERED ON: The judgment was handed down electronically by circulation to the
parties’ legal representatives by email and release to SAFLII on 14
September 2021. The date and time for hand-down is deemed to
be 14 September 2021 at 15h00.

JUDGMENT BY: Opperman, J

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I INTRODUCTION
[1] The appellant enjoys an automatic right to appeal in terms of section 309(1)(a) of
the Criminal Procedure Act 51 of 1977 (CPA). The appeal lies against conviction
and sentence.

[2] He was sentenced to life imprisonment on 28 October 2019 in terms of section

51(1) of the Criminal Law Amendment Act 105 of 1997 after conviction on the
contravention section 3 read with sections 1, 50, 56(1), 56A, 57, 58, 59, 60 and 61
of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007 (SORMA) and section 51(1) of the Criminal Law Amendment Act 105 of
1997. No order was made in terms of section 103 of the Firearms and Ammunition
Control Act 60 of 2000. It was ordered in terms of section 50(1)(a)(i) of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 that the
appellant’s name be included in the register for sexual offenders.

[3] The case turns on the alleged rape of a 12-year-old girl.1 The case demands,
foremost, a depiction of the law so as to create a foundation and atmosphere on
which judgement must be based.

II THE FUNDAMENTAL PRINCIPLES IN LAW

[4] The fundamental principle on the evaluation of evidence on appeal is that an
appeal court is not inclined to disturb findings by the trial court on the evaluation of
the evidence. The advantage of seeing and hearing the witnesses is difficult to
surpass.

[5] The Supreme Court of Appeal reiterated this stance in its judgment on 31 July
2020 in AM and another v MEC Health, Western Cape (1258/2018) [2020] ZASCA
89:

1
Section 1 of SORMA: “child” means a person under the age of 18 years and “children” has a
corresponding meaning; [Definition of “child” substituted by s. 1 of Act No. 5 of 2015.]
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Such findings are only overturned if there is a clear misdirection or the trial court’s findings are
clearly erroneous. That has consistently been the approach of this court and the Constitutional
Court as reflected recently in the following passage from ST v CT:

‘In Makate v Vodacom (Pty) Ltd the Constitutional Court, in reaffirming the trite principles outlined
in Dhlumayo, quoted the following dictum of Lord Wright in Powell & Wife v Streatham Nursing
Home:
“Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as
against the trial judges, and unless it can be shown that he has failed to use or has palpably
misused his advantage, the higher court ought not to take the responsibility of reversing
conclusions so arrived at, merely on the result of their own comparisons and criticisms of the
witnesses and of their own view of the probabilities of the case.” (Accentuation added)

[6] The same was law seventy-two years ago; and it is still true in the constitutional
epoch. If there was no misdirection of facts by the trial court, the point of departure
is that its conclusion was correct. The general principles according to which a court
of appeal should consider the case are set out in R v Dhlumayo 1948 (2) SA 677
(A). The court of appeal must bear in mind that the trial court saw the witnesses in
person and could assess their demeanour.

[7] The court of appeal will only reject the trial court’s assessment of the evidence if it
is convinced that the assessment is wrong. If the court is in doubt, the trial court’s
judgment must remain in place (S v Robinson 1968 (1) SA 666 (A) at 675H).

[8] Courts of appeal have greater liberty to disturb findings of a court a quo when
dealing with inferences and probabilities (Minister of Safety and Security v Craig
2011 (1) SACR 469 (SCA) at [58]). In casu the evidence is of a direct nature.

[9] The court of appeal does not zealously look for points upon which to contradict the
trial court’s conclusions and the fact that something has not been mentioned does
not necessarily mean that it has been overlooked.

[10] The case for the State is largely reliant on the evidence of a single child witness.
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1. In S v Stevens (417/03) [2004] ZASCA 70; [2005] 1 All SA 1 (SCA) (2

September 2004) the Supreme Court of Appeal declared the law on single
witnesses:
[1] Courts in civil or criminal cases faced with the legitimate complaints of persons who are
victims of sexually inappropriate behaviour are obliged in terms of the Constitution to
respond in a manner that affords the appropriate redress and protection. Vulnerable
sections of the community, who often fall prey to such behaviour, are entitled to expect no
less from the judiciary. However, in considering whether or not claims are justified, care
should be taken to ensure that evidentiary rules and procedural safeguards are properly
applied and adhered to.
[17] As indicated above, each of the complainants was a single witness in respect of the
alleged indecent assault upon her. In terms of s 208 of the Criminal Procedure Act,
an accused can be convicted of any offence on the single evidence of any competent
witness. It is, however, a well-established judicial practice that the evidence of a single
witness should be approached with caution, his or her merits as a witness being weighed
against factors which militate against his or her credibility (see, for example, S v
Webber 1971 (3) SA 754 (A) at 758G-H). The correct approach to the application of this
so-called ‘cautionary rule’ was set out by Diemont JA in S v Sauls and Others 1981 (3) SA
172 (A) at 180E-G as follows:
‘There is no rule of thumb test or formula to apply when it comes to a consideration of the
credibility of the single witness (see the remarks of Rumpff JA in S v Webber. . .). The trial
judge will weigh his evidence, will consider its merits and demerits and, having done so,
will decide whether it is trustworthy and whether, despite the fact that there are
shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has
been told. The cautionary rule referred to by De Villiers JP in 1932 [in R v Mokoena 1932
OPD 79 at 80] may be a guide to a right decision but it does not mean “that the appeal
must succeed if any criticism, however slender, of the witnesses’ evidence were well-
founded” (per Schreiner JA in R v Nhlapo (AD 10 November 1952) quoted in R v
Bellingham 1955 (2) SA 566 (A) at 569.) It has been said more than once that the exercise
of caution must not be allowed to displace the exercise of common sense.’
2. The adjudication of a child witness demands the proverbial Wisdom of
Solomon and the judgement must be given with circumspection and anxious
care. A court must articulate the warning of care and the need for caution
and with reference to the circumstances of the case. A court must examine
the evidence in order to satisfy itself that the evidence given by the witness
is clear and substantially satisfactory in all material aspects. Although
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corroboration is not a prerequisite for a conviction, a court will in appropriate

circumstances, seek corroboration which implicates the accused before it
will convict beyond reasonable doubt. In the absence of corroboration, a
court will look for some feature in the evidence which gives the single child
witness enough veracity to reduce the risk of mistaken reliance.2
3. The cautionary rule in sexual assault cases is irrational, outdated and
archaic. Minor children testified in the case of Woji v Santam Insurance
Company (Pty) Ltd 1981 (1) 1020 (A). The circumstances of the Woji-case
were similar to the matter in hand. Two minor children testified years after
the fact.
DIEMONT JA: This is an unusual and interesting case. It is unusual in that the only two
eye-witnesses are two small boys testifying to an incident which had happened five years
before the trial; it is interesting in that it raises the question of the weight to be given to the
testimony of children in a civil action.
Despite his youth - or perhaps because of his youth - Sibonde's evidence was clear, simple
and straightforward.
The judgment continued and stated that the question which the trial court
must ask itself is whether the young witness' evidence is trustworthy.
1. Trustworthiness depends on factors such as the child's power of
observation, his power of recollection, and his power of narration on the
specific matter.
2. In each instance the capacity of the particular child is to be investigated.
3. His capacity of observation will depend on whether he appears
intelligent enough to observe.
4. Whether he has the capacity of recollection will depend again on
whether he has sufficient years of discretion to remember what occurs
while the capacity of narration or communication raises the question
whether the child has the capacity to understand the questions put and
to frame and express intelligent answers.

2
Respondents’ Heads of Argument at paragraph 3.5. with reference to S v MG 2010 (2) SACR 69 (SCA).
 6

5. There are other factors as well which the court will take into account in
assessing the child's trustworthiness in the witness-box. Does he appear
to be honest - is there a consciousness of the duty to speak the truth?
6. Then also the nature of the evidence given by the child may be of a
simple kind and may relate to a subject-matter clearly within the field of
its understanding and interest and the circumstances may be such as
practically to exclude the risks arising from suggestibility.
7. At the same time the danger of believing a child where evidence stands
alone must not be underrated. It is well known, however, that children
often have a vivid memory of an unusual or exciting incident. A motor
accident, for instance, is an occurrence that might well arrest the
attention of a child, more particularly if he were directly or indirectly
involved and that it would leave a clear picture on his memory would not
be surprising.

III THE DISPUTE

[11] It is not in dispute that the 12-year-old complainant was raped. The identity of the
perpetrator is the issue. It is trite that the incident occurred in 2016 whilst the
complainant resided with her grandparents. The court a quo correctly summarised
that:
The accused pleaded not guilty to the charge and offered a plea explanation that during 2016 he
was very sick and had to be taken care of by his then girlfriend who is now untraceable, and in
essence denied all the allegations against him.

[12] The grounds of appeal are:

1. The court erred in finding that the State proved its case beyond reasonable
doubt due to inherent material contradictions in the State’s case.
2. The court erred in rejecting the evidence of the appellant and accepting the
evidence of the State. The evidence of the State witnesses corroborated the
evidence of the appellant in certain aspects. The appellant’s evidence indicate
that he was very sick during the commission of the crime. The State’s witnesses
corroborated that the appellant was in fact staying with a lady.
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3. The court erred by finding that the appellant was not sick during the commission
of the offence.
4. In her Heads of Argument Counsel for the appellant criticized the fact that the
complainant kept on going back to the house of the appellant notwithstanding
realising that she may be raped. The complainant explained the issue as
follows:
He called me and every time he called me, he told me that he is going to kill me if I mentioned
this to anyone or if I do not do as he tells me to.
This brings the judgment to the evidence.

IV THE WITNESSES AND THEIR EVIDENCE

The case for the accused
[13] The accused testified and presented a medical certificate in an attempt to booster
his defence. He alleged that in 2016 he was gravely ill and was diagnosed with
tuberculosis. He had also contracted the human immunodeficiency virus. He was
treated at the local MUCPP clinic and exhibit D was handed in to confirm this. His
version is that he was weak to the extent that he was unable to walk properly and
was confined to his house. He wanted for the court to believe that he only
recovered in 2017. The certificate stated that he was healed six months after
September 2015 and was healed by March 2016.

[14] It is his case that he knew the complainant as a child residing in the same street
and that is the sum total of his connection with her. He maintained that he does
not know the family very well despite him having been in a romantic relationship
with the sister of the grandmother of the complainant. He denied that he frequently
visited the family’s home or ever built a wardrobe at the grandparent’s place. He
disputed a friendship with the grandparents.

[15] The version of the accused himself and the testimony of the witnesses for the State
destroyed his defence.
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1. Upon careful study of the medical certificate dated the 7th of June 2019, it is
shown that the accused was not ill to the extent he avers. His health issues
would have started in September 2015 and the tuberculosis was treated and
would have persisted for six months. He had been cured thereafter. At least by
March 2016 he had fully recovered. The medical certificate is silent on his other
symptoms and state of health.
2. The state witnesses, adamant and in corroboration of each other, showed that
the appellant was not ill to the extent that, at the time of the incident, he could
not walk.
3. His alibi that his girlfriend nursed him and could corroborate his evidence faded
into obscurity when she could not be traced and if the evidence contained in
Exhibit D is regarded. Although there is no onus on the accused to prove his
innocence the author of the medical certificate and the individual that treated
him could have easily corroborated his defence. His medical record would have
recorded his condition; that he could not walk and when the condition existed.
It is clear that the author did not want to commit to the allegations of the
appellant in the certificate and the fact that the author was not called to testify
speaks volumes.
4. The appellant’s feeble attempt to distance himself from a family that regarded
him, beyond doubt, as a close family friend tarnished the veracity of his
evidence substantially and supports the inference that the medical evidence
does not and could not support his version. They knew him well and knew for
a fact that he was not as ill as he contended. They even doubted the existence
of a girlfriend. They did not and must have seen a lady at his home that resided
there from 2015 until 2017. If so and for that long a period and the fact that they
lived in the same street and were friends; they would have known.
5. The manner in which the evidence of close friendship was contested is
significant. It only came to light in his evidence. The fact that he would deny
that he built a cupboard for the grandparents is preposterous.
6. The above is indicative of a very weak attempt to distance him from the family
to create doubt with the court.
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7. The question to ask is why would the complainant choose the appellant to
falsely implicate. Out of all the men in the township he was pointed out to be
the culprit. There existed no animosity or bias towards the appellant and none
was reflected in the evidence of the witnesses. The probabilities founded on
the staunch evidence of the witnesses for the State and the frail defence of the
appellant brings his case to naught.
8. What stands out in the testimony of the appellant is that he adapted his version.
The court described it as follows:
This leads me to conclude that his version is not only unreasonable but also unreliable if it is
so easily changed or adjusted. It is more probable that the accused used his existing
relationship with the complainant to call her into his yard under the auspices of purchasing cool
drink on his behalf. That it was due to the familiar relationship with each other that caused her
not only to enter his yard but also his house wherein she was eventually raped more than once.
It is also more probable that the threat of death and his close proximity to her residence made
the complainant believe that he will be able to execute his threat of killing her as he had freedom
of movement at her residence due to his close relationship with her grandparents.

The case for the State

[16] The complainant, her maternal aunt and her cousin testified.
1. They were well acquainted with the appellant. He lived in close proximity to
the grandparents of the complainant. The complainant resided with the
grandparents at the time of the alleged rape.
2. The complainant in her evidence testified that when she was in grade 7 in
2016 the incidents occurred over a period of between two to three weeks.
Reading of the record shows that her version is detailed and that the
manner in which the incident came to light give credence to her evidence.
Rape cases are not reported as the unenlightened public often perceives
and demands. To a child of 12-years-old it is not only a traumatic and almost
unreal experience; it is also embarrassing and one that instigates fear. If the
perpetrator has the ability and opportunity to rape, he will also have the
ability and opportunity to kill. He has already committed the unthinkable;
nothing will prevent him from going further.
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3. She did try to report but her courage failed. She did it anonymously when
she completed the form at school and tried to do so in confidence when she
told her cousin. This is the reality of the manner in which many rape cases
unfold before courts and in life. It is a private and disgusting experience that
creates confusions with adults what to say in the mind of a 12-year-old girl
at the threshold of the confusion that puberty brings.
4. The appellant called her into his home under the pretences of him going to
send her to the shop. He raped her and threatened her afterwards that he
would kill her if she tells anybody and at each occasion. This also induced
the subsequent rapes.
5. She reported the incident to her cousin when they were on their way to the
shop. She was so scared that she paid her cousin not to report the incident.
6. After she moved to Soweto the aunt saw a document wherein the
complainant had written on a questionnaire that she was raped. Again, in
fear and anguish, she denied the rape and even tore the document. The
aunt accepted her explanation and did not take the matter further.
7. The rape came to light when the complainant suffered from involuntary
urination or uncontrolled leakage of urine. She reported the incident to her
grandparents who reported it to the mother.
8. The medical report that followed on a forensic examination three years after
the fact did not rule out rape of the minor.
9. The evaluation of the court a quo is exactly right when she found that the
manner in which the case unfolded and the reports occurred indicates
veracity. The detail in the complainant’s evidence is commendable; it could
not be fabricated by any stretch of the imagination.
I thus find her testimony to be reliable in all material aspects as it is clear that such intricate
detail provided could never stem from her imagination but instead stems from actual
experience, and that I find that she is a credible witness.
10. The evidence of the aunt and the cousin corroborated the evidence in all
material aspects and where it overlapped. There was not a hint of
conspiracy or bias.
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Conclusion
[17] An independent reading of the record combined with the findings and rationale of
the trial court directs to the fact that the outcome a quo cannot and may not be
faulted. The grounds of appeal are devoid of substance if the mosaic of evidence
is regarded. The contradictions between the witnesses for the State as pointed out
in the Heads of Argument of the appellant, are of negligible value and not material
to the ultimate findings of the trial court. The court applied her mind with the utmost
caution when she evaluated the evidence of the complainant.

V THE SENTENCE
[18] The sentence is in compliance to the decree in the prescribed Minimum Sentences
Law as inscribed in the Criminal Law Amendment Act 105 of 1997.

[19] The appellant had sexual intercourse with a 12-year-old girl on more than one
occasion. She forms part of the most vulnerable in society.

[20] Terblance3 aptly stated as follows:

It is regularly stated that balance is an important consideration in sentencing. Balance, in this
context, has been said to mean that the trial court should consider all the relevant facts, factors and
circumstances evenly, and strive for the attainment of all the purposes of punishment.
As long as balance is understood in these terms there is little objection to its use. This is not,
however, balance in the ordinary sense of the word. The seriousness of the crime may totally
outweigh the mitigating factors and the personal factors of the offender. This cannot amount to
balance, since the scales would be heavily weighed against the offender. It would therefore be
more accurate to state, as in S v De Kock, that the three factors of the Zinn triad have to be
considered in conjunction with one another and that each should be afforded a certain weight
depending on the facts of the case.

[21] I must add it is here about the young victim; the triad must be squared and that is
apart from the personal circumstances of the appellant, the seriousness of the
crime and the interest of society. The brave girl that was put through the trauma of

3
A Guide to Sentencing in South Africa, Last Updated: 2016 - Third Edition at Chapter 6 at 5,
https://www.mylexisnexis.co.za/Index.aspx on 18 January 2021.
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the trial and stigma demands special mention.

[22] The appellant was a first offender at the age of 58. He is unmarried and has a child
of 4 years old. The appellant at the time of sentencing did not know the
whereabouts of his child. Before his arrest he worked as a builder. Although he
was initially on bail, he evaded his trial and was incarcerated from August in the
year he was sentenced. He was sentenced in October 2019. The appellant
disclosed to the court that he is HIV positive and on medication for this.

[23] The personal circumstances of the appellant fade into the background when the
seriousness of the crime and the circumstances in which it was perpetrated are
regarded. Nothing directs to compelling and substantial circumstances being
present. The crimes where carefully thought out and planned and the intimidation
of the complainant afterwards speaks volumes. The consequences were grave.
The complainant suffered physically and mentally. The sentence is in order and
this court shall not interfere with it.

VI ORDER
The appeal against the conviction and sentence is dismissed.

____________________________
M. OPPERMAN, J

I concur

_____________________________
C PAGE, AJ
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APPEARANCES
On behalf of Appellant Advocate V Abrahams
Legal Aid South Africa
Bloemfontein

On behalf of Respondent Advocate TL McPherson

Office of the Director Public
Prosecutions: Free State
Bloemfontein