THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 1049/2013

Not Reportable

In the matter between:

ZWELAKHE ABEDNIGO LUTHULI                                       APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:  Luthuli v The State (1049/2013) [2014] ZASCA 164 (01
October 2014)

Coram:                Mpati P, Bosielo and Willis JJA

Heard:                  12 September 2014

Delivered
01 October 2014

Summary:
Procedure – appeal against conviction and sentence on the
merits – application for leave to lead further evidence – main witness and
potential witnesses to give further evidence deceased – requirements for leading
further evidence satisfied – applicant‟s conviction and sentence set aside in
interests of justice.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from: KwaZulu High Court, Pietermaritzburg (McLaren and
Jappie JJ sitting as court of appeal):
In all the circumstances, the conviction and sentence are set aside.
________________________________________________________________
JUDGMENT
________________________________________________________________
MPATI P (Bosielo and Willis JJA concurring):

[1] The appellant was convicted of rape in the regional court, Verulam, on 2
February 2000 and sentenced to 10 years‟ imprisonment. It was alleged in the
charge sheet that upon or during November 1997 until March 1998, at or near
Verulam, he „did intentionally and unlawfully have intercourse with Portia
Phahla (13 years) on several occasions . . . without her consent and did thereby
commit the crime of rape‟. The appellant‟s appeal against his conviction and
sentence was dismissed by the KwaZulu-Natal High Court, Pietermaritzburg
(Jappie J, with McLaren J concurring), on 14 September 2000. A little more
than four years thereafter, on 20 December 2004, the high court granted the
appellant leave to appeal to this court against his conviction and sentence. The
circumstances under which leave was granted by the high court will become
clear later in this judgment.

[2] It is not in dispute that the complainant was born in November 1983. She
may therefore have been, or was about to attain the age of, 14 years rather than
13 years old as she testified, when the alleged rape took place for the first time
during November 1997.  The appellant was arrested for the alleged rape on 7

April 1998. He pleaded not guilty to the charge and gave no plea explanation.
The trial commenced on 25 October 1999.

[3] The relevant evidence on which the appellant was convicted, testified to
mainly by the complainant and her mother, Ms Bonganani Luthuli, may be
summarised as follows: The complainant and her siblings lived with their
mother at Canelands, Verulam. The appellant, who was related to the
complainant‟s mother, also lived in Canelands, where he shared a house with,
among others, Mr Mjabuliseni Luthuli, the brother of the complainant‟s mother.
During November 1997 the complainant was sent by her mother, who was a
vendor of items of clothing, to collect money owed to her by the appellant, who
used to purchase clothing from her on credit. The complainant testified that
upon arrival at the appellant‟s house at about midday she informed the appellant
that she had been sent by her mother to collect money. The appellant advised
her that he did not have money and that she would have to return at some other
time. When she told him she was leaving he asked her to wait, without giving
any explanation as to why she should wait. It appears, according to the
complainant‟s testimony, that at that stage she was inside the appellant‟s
bedroom.

[4] The complainant testified further that the appellant then closed the door
of his room. When she enquired as to why he was doing so the appellant said
there was no reason and proceeded to direct her to undress herself. She refused
but he undressed her himself and thereafter pushed her towards his bed. He then
„inserted his penis in my vagina‟ so she testified. The following exchanges
between the complainant and the prosecutor then appear from the record:
„Portia, when the accused did this to you, did you feel anything? - - - I felt pain.
And after he inserted his penis into your vagina, what happened? - - - He was moving.

While the accused was on top of you and he was doing this, Portia, what were you doing? - -
- I was trying to push him aside, but I was failing.
And what happened after that? - - - So he then left me and I went home.‟
The complainant testified further that before she went home the appellant told
her that she should not tell her mother about what had happened. She indeed did
not report the incident to her mother, because, she said, she was „not so close‟ to
her. She thought her mother would not believe her since „the accused is her
brother‟.

[5] After the incident the appellant visited her home as he used to do. When
the complainant was asked whether it ever happened to her again she said it
happened five or six times from November 1997 until March 1998 at the house
where the appellant lived. On each of those occasions she had been sent to his
house by her mother to sell clothes. He did not, however, have sexual
intercourse with her every time she went to his house. Her mother later
suspected that she had a boyfriend, because, she said, she was no longer
behaving like a child. Her aunt spoke to her at her mother‟s request and she told
the aunt „about what [had] happened‟. She was thereafter taken to the police
station by her mother where the alleged rape was reported. A police officer,
sergeant Phewa, took her to a doctor, who examined her. This occurred during
April 1998.

[6] The complainant‟s mother confirmed that when she noticed some change
in the complainant‟s behaviour and the complainant denied that she had a
boyfriend, she (the mother) enlisted the assistance of her sister to inspect the
complainant to ascertain whether she was still a virgin. On discovering that the
complainant was no longer a virgin and upon enquiry the complainant revealed
to her aunt that the accused was the person who had taken her virginity. The
next day she took the complainant to the police to make a report.

[7] Dr Jacques Terry Robert, a medical practitioner, testified that he
examined the complainant on 8 April 1998. His findings were that „the hymenal
orifice appeared widened to slightly more than 15mm in transverse diameter‟,
which „could have been in keeping with previous penile penetration although
one could not say with any certainty‟. Dr Robert concluded that he did not
believe that there was evidence to suggest „that full penile penetration ever
occurred‟. Mr Mjabuliseni Luthuli and another witness, Mr Thembinkosi
Luthuli, also gave evidence, but it is not necessary to refer to it for present
purposes.

[8] The appellant denied that he ever had sexual intercourse with the
complainant. He testified that he never had occasion to be alone with the
complainant in his room because she was never alone when she visited him to
collect money for her mother. She had always been accompanied by her two
siblings. He testified that he once confronted the complainant when he met her,
in the late afternoon, at an area known as Hilltop. When he asked her where she
had been she said she „was coming from men‟. He said he thought the
complainant had been in trouble with her mother on that day, which could be
the reason why she falsely implicated him as the person who had allegedly
raped her. Despite his denial the appellant was convicted and sentenced, as has
been mentioned above.

[9] During December 2002 there was a significant turn of events. While the
appellant was serving his sentence the complainant made a sworn statement to a
police officer, Dumisani Raymond Gwala, in which she confessed that she had
falsely implicated the appellant as the person who had allegedly raped her. It
was recorded in the statement that at the time of the virginity test conducted on

her by her aunt she had a boyfriend named Mduduzi, with whom she had
previously had consensual sex. Another police officer, Detective Captain
Mzwakhile Chonco (Chonco), was subsequently tasked with an investigation
into the veracity of the contents of the complainant‟s sworn statement. She
confirmed to him, more than once, that she had made the sworn statement
without being influenced by anyone. Chonco recorded his actions relating to the
investigation in a sworn statement which he signed on 5 August 2004.
Apparently, he also liaised with the relevant office of the Director of Public
Prosecutions.

[10] In paragraph 12 of his sworn statement Chonco says:
„On Friday 5 March 2004 11:30 I arrived at office no 306 the Office of Advocate Sima
Jockhad. I introduced the alleged victim Similo Portia Phahla to her. She interviewed her.
The victim Similo Portia Phahla maintained that she lied in court. She was then warned of the
consequences that she can now be charged for perjury she understood and still maintained her
stand that no matter what happens to her, the uncle must be released from prison because she
lied in court. Advocate Sima informed that an application to re-appeal shall now be submitted
and the accused will be assisted by the Legal Aid Board . . . on new evidence that the victim
lied under oath. I handed all the original documents to Advocate Sima Jockhad. . . .‟
An application was subsequently launched on behalf of the appellant in the
High Court, Durban, for leave to appeal to this court against his conviction and
sentence. A further order was sought for leave for the appellant to lead further
evidence. Attached to the papers was an affidavit deposed to by the complainant
on 16 November 2004 in which she once again confirmed that she had falsely
implicated the appellant in the alleged rape.

[11] The gist of what is contained in the complainant‟s affidavit appears in the
following paragraphs thereof:
„                                                                     6

Early in 1997 my mother accused me of not behaving myself and being rude to her. She
asked me whether I had a boyfriend. I was at that stage involved in the relationship [with]
Mduduzi. I was too afraid to tell her of this relationship and I denied that I had a boyfriend.
My mother did not believe me and arranged for her cousin to examine me to determine
whether or not I was a virgin.
I had no choice but to submit to the examination. When my aunt examined me internally she
realised that I was not a virgin and asked me who my sexual partner had been. Initially I did
not respond. My mother then questioned me. I was too scared to tell her that the person was
Mduduzi as I feared that I would be beaten and thrown out of the house. I was also concerned
about what she would do to Mduduzi who lived in our house. Although I said I was
completely ignorant about sex at the criminal trial, that was not accurate. I was not forced to
have sex with Mduduzi and I thought it was a pleasurable experience and it was at all times
consensual.
Because I refused to tell my mother who my sexual partner was she took me to another aunt
Dingeni Luthuli and her friend Happy Ndofana. These women asked my mother to leave the
room as they thought I would be too frightened to reveal the information they wanted in the
presence of my mother. I was then questioned by these women. I initially remained silent.
They asked me if it was and suggested to me by questioning that it had been my uncle
Zwelakhe. They said he had attempted to rape their daughters. Zwelakhe was a reference to
the [appellant], Zwelakhe Abednigo Luthuli. I eventually decided that because they had
mentioned Zwelakhe and it seemed they wanted me to say it was him I should do so and I
hoped if I did nothing further would happen. I certainly did not appreciate that the [appellant]
would be arrested and put into prison.‟
The complainant concluded by saying she was „willing to testify if recalled to
give evidence in the matter‟ and that her evidence „will accord with what is set
out in this affidavit‟. McLaren J granted both orders sought on 20 December
2004. He also fixed bail for the appellant in the amount of R50,00.

[12] In his heads of argument the appellant prayed for the setting aside of his
conviction and sentence on the merits on various grounds, which it is not

necessary at this stage to enumerate. In the alternative, the appellant sought an
order, on the strength of the „new evidence‟, setting aside his conviction and
sentence and the remittal of the matter to the trial court for the hearing of the
complainant‟s new evidence. In her heads of argument counsel for the
respondent supported the appellant‟s prayer for the setting aside of his
conviction and sentence and the remittal of the matter to the trial court for the
hearing of further evidence.

[13] A few days before the hearing of the appeal there was yet another turn of
events. The respondent filed supplementary heads of argument in which we
were advised that the complainant had passed away on 17 October 2010. Two
other potential witnesses, Detective Captain Chonco and the complainant‟s
alleged boyfriend, Mduduzi Nxumalo, had also passed away. Certified copies of
death certificates in respect of the death of Chonco and the complainant were
attached to the respondent‟s supplementary heads of argument.

[14] Before us counsel for the respondent supported the submission of counsel
for the appellant that, in the light of the unfortunate and untimely demise of the
complainant and the two potential witnesses mentioned above, the appellant‟s
conviction and sentence should be set aside in the interests of justice. In S v
Ndweni and others 1999 (2) SACR 225 (SCA) this court observed (at 227e-g)
that-
„[i]t is not in the interests of the administration of justice that issues of fact, once judicially
investigated and pronounced upon, should lightly be re-opened and amplified (S v De Jager
1965 (2) SA 612 (A) at 613A-B). An applicant seeking to re-open a case and lead further
evidence will generally be required to satisfy the following requirements:
“(a) There should be some reasonably sufficient explanation, based on allegations which may be true,
why the evidence which it is sought to lead was not led at the trial.
(b) There should be a prima facie likelihood of the truth of the evidence.

(c) The evidence should be materially relevant to the outcome of the trial.”
(See S v De Jager (supra) at 613C-D.)‟
On a consideration of the contents of the affidavits referred to above, I am
persuaded, without having to elaborate much, that the requirements for this
court to remit the matter for the hearing of further evidence have been met.

[15] The appellant could certainly not have been in a position to lead the
evidence now sought to be led. There are indications in the record from which it
can be deduced that there is a likelihood of the truth of the evidence sought to
be led. A few references to the evidence will suffice. The complainant testified
that after the appellant had allegedly had sexual intercourse with her on the first
occasion „he said that I must not tell my mother‟. When asked, almost
immediately thereafter, why she did not tell her mother about the incident she
said she was „not so much close to my mother and the other thing, I thought that
my mother would not believe my report since the accused is her brother‟. When
asked in cross-examination whether the appellant had used any means of
threatening her she replied:
„He was not using anything to threaten me except that he used to say that I must not tell my
mother about what happened because if I will do so, I will be in danger.‟
She had made no mention in her evidence-in-chief of any threats made by the
appellant. She also testified that if she had a boyfriend her mother would have
been upset with her.

[16] Doctor Robert recorded the following findings in his medical
examination report in respect of the complainant, which was handed into court
as an exhibit:
„Full of scars and old bruises over the back and both upper and lower limb (apparently
sjambok wounds by the mother).‟

He confirmed his findings during his testimony before the trial court. In my
view, there is a ring of truth in the contents of the complainant‟s affidavit,
particularly where she states that she was too scared to tell her mother that the
person who had had sexual intercourse with her was her boyfriend, Mduduzi,
because she feared that she would be beaten and thrown out of the house. It
appears that her mother certainly did not spare the rod. There is no doubt that
the evidence sought to be led would, if accepted as the truth, be materially
relevant to the outcome of the trial.

[17] I am satisfied that a case has been made out for the order sought, namely
an order setting aside the conviction and sentence and remitting the matter to
the trial court for the hearing of further evidence. The difficulty for the
appellant, of course, is that the evidence he seeks to lead is no longer available,
because the main witness and two potential witnesses who would have given it
are no more. In my view, it would be a travesty of justice were the appellant to
be denied the first part of the order he seeks merely because it has become
impossible for him to lead the evidence he so wished to place before the trial
court. I accordingly agree with the submission of both counsel that the
conviction and sentence should be set aside in the interests of justice. In any
event, I have grave doubts about the correctness of the conviction.

[18] Apart from the contradictions that are apparent from the testimony of the
complainant referred to in paragraph 15 above, which appear to me to be
material, the complainant was asked, during her evidence-in-chief, whether
anybody accompanied her on each of the occasions she went to the appellant‟s
house. Her response was in the affirmative. Now, it will be remembered that the
appellant asserted in his testimony that he could never have been alone with the
complainant in his house because she had always been accompanied by her

siblings when she went to collect money from him for her mother. Realising this
difficulty the prosecutor asked a follow-up, but leading question:
„And on the occasions that the accused had had forceful sexual intercourse with you, was
there anybody else that had accompanied you to his house?‟
As would have been expected, the answer was „no‟. There are other
discrepancies in the complainant‟s version, such as differences in her two
statements that she made relating to the alleged rape, but it is unnecessary to go
any further since the appellant‟s conviction and sentence are to be set aside in
any event.

[19] In all the circumstances, the conviction and sentence are set aside.

_______________________
L  MPATI
PRESIDENT

APPEARANCES
For Appellant:

B Laing
Instructed by:
Laing & Associates, Durban
Justice Centre, Bloemfontein

For Respondent:

K. Essack

Instructed by:
The Director of Public Prosecutions,
Pietermaritzburg
The Director of Public Prosecutions,
Bloemfontein