THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 413/2012
Reportable
In the matter between:

MILINGONI JEFFREY RAMULIFHO

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Ramulifho v The State (413/12) [2012] ZASCA 202 (30
November 2012)

Coram:
MPATI P, PONNAN, CACHALIA JJA and SOUTHWOOD and
ERASMUS AJJA
Heard:
9 NOVEMBER 2012
Delivered:
30 NOVEMBER 2012

Summary:
Appellant convicted of rape in the regional court and
referred to the High Court for sentence – sentence of life imprisonment
imposed- appellant unrepresented in the regional court and court failing
to assist him in presenting his defence – appellant not receiving a fair
trial - regional court not considering the evidence as a whole, but in
compartments – when considered as a whole, including the appellant’s
admission during argument that he had had intercourse, the appellant’s
defence that he did not have intercourse with the complainant
reasonably possibly true – entitled to acquittal on the merits

______________________________________________________________

ORDER
_____________________________________________________________

On appeal from:
The Venda High Court, Thohoyandou (Hetisani J sitting
as court of first instance):

1.  The appeal is upheld.

2. The conviction and sentence are set aside.

(Ordered that the appellant be released immediately.)

______________________________________________________________

JUDGMENT
______________________________________________________________

SOUTHWOOD AJA (MPATI P, PONNAN AND CACHALIA JJA and
ERASMUS AJA CONCURRING):

[1] The appellant appealed against his conviction of rape by the
Thohoyandou regional court on 16 March 2002 and the sentence of life
imprisonment imposed on him by the Venda High Court (Hetisani J) on 18
July 2002. Leave to appeal against both the conviction and sentence was
granted by the Limpopo High Court (Makhafola J) on 8 November 2010. After
argument at the hearing on 9 November 2012, this court upheld the appeal,
set aside the conviction and sentence and ordered that the appellant be
released immediately. The court also indicated that its reasons would follow.
These are the reasons.

[2] The appeal was upheld for two reasons: first, the evidence did not
prove beyond a reasonable doubt that the appellant had raped the

complainant nor did it prove that the appellant was guilty of any other crime;
and, secondly, the appellant did not receive a fair trial in the regional court.
The respondent’s counsel attempted to support the conviction but readily
conceded that the appellant did not receive a fair trial.

[3] The appellant was charged with the rape of a female person on 2
August 1999. It was not alleged in the charge sheet that the victim was under
the age of 16 years.1 The appellant elected to represent himself and pleaded
not guilty. In his plea explanation he denied that he had intercourse with a
child.

[4] Neither the South African Police Service (SAPS) nor the Director of
Public Prosecutions (DDP) seems to have given any attention to the
appellant’s correct age at the date of the incident and they treated him as if he
was an adult at the time.2 During his evidence the appellant told the court that
his date of birth was 2 August 1983 (which meant that he was sixteen years
old on the date of the incident and just over the age of eighteen when the trial
commenced), that he was in standard ten at the time of the incident and that
he had left school when he was arrested. During her evidence, his
grandmother, Martha Ramulifho, told the court that the appellant may be
sixteen or seventeen years old. This age appears to relate to the time of the
trial. A few questions in court elicited this information and it is difficult to
understand why the SAPS and the DPP did not do this and why they did not
deal with the accused as a child. By the time the trial commenced the
appellant had been arrested, interrogated by the police, detained for almost
two years and had been forced to make admissions or a confession, all
without the assistance of a legal representative or the advice of his parents or
guardian.

1 A conviction of rape where the victim is under the age of 16 years was necessary if the
State wished the provisions of the Criminal Law Amendment Act 105 of 1997 (the minimum
sentence legislation) to be applied – see S v Legoa 2003 (1) SACR 13 (SCA) para 24: S v
Mapule (817/11) [2012] ZASCA 80 (30 May 2012) paras 9-10.
2 Section 73 and 74 (as it was before its repeal by the Child Justice Act 75 of 2008 on 1 April
2010) should have been complied with.

[5] Section 35 (3) of the Constitution provides that every accused has a
right to a fair trial, which includes the right to have a legal practitioner
assigned to his  case by the state and at state expense, if substantial injustice
would otherwise result, and to be informed of this right promptly. This was an
obvious case for the provisions of the section to be applied but there is no
indication in the record that the appellant was informed of these rights.3  The
appellant was therefore unrepresented and the regional court was obliged to
assist him to present his defence properly so that he received a fair trial.4 This
meant that the regional magistrate was obliged to act as the guide of the
appellant at all stages of the trial. He was obliged to inform the appellant of his
basic procedural rights – the right to cross-examine, the right to testify, the
right to call witnesses, the right to address the court both on the merits and in
respect of sentence, and in comprehensible language to explain to him the
purpose and significance of his rights. The regional magistrate was also
obliged to assist the appellant whenever he needed assistance in the
presentation of his case.5 It was also required of the regional magistrate that
he ensure that the parties’ cases were presented fully and fairly and that the
truth was established: in other words, he was not to be a passive observer of
the trial: he was obliged to ensure fairness and justice and, if necessary to
intervene to achieve this.6 As in any other trial, whether or not the prosecutor
followed the correct procedure, it was the overriding duty of the regional
magistrate to ensure that only admissible evidence was placed before the
court before reliance was placed on it.7

[6] There was also reason for the regional magistrate to exercise great
care in the assessment of the evidence: this was a rape case involving a

3 See S v May 2005 (2) SACR 331 (SCA) paras 4-10 where the court said: ‘Whether or not
prejudice has resulted from the lack of legal representation is really a question that can be
determined only by having regard to the whole trial, and the way in which it was conducted by
the judicial officer; and the ability, as shown during the course of the trial, of the accused to
represent himself adequately; and to whether the evidence adduced has led justifiably to the
conviction and sentence.’
4 In S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk No 1989 (3) SA 368(E) at 377E-
379C the essential rules applicable before the advent of the Constitution are summarised.
These are equally applicable now.
5 See State v Rudman supra at 378A-D.
6 S v May supra
7 S v Nkosi 1980 (3) SA 829 (A) at 844F-845C.

young complainant. In State v Vilakazi8 this court outlined the correct
approach to such a case –
‘[21]
The prosecution of rape presents peculiar difficulties that always call for the
greatest care to be taken, and even more so where the complainant is young. From
prosecutors it calls for thoughtful preparation, patient and sensitive presentation of all
the available evidence, and meticulous attention to detail. From judicial officers who
try such cases it calls for accurate understanding and careful analysis of all the
evidence. For it is in the nature of such cases that the available evidence is often
scant and many prosecutions fail for that reason alone. In those circumstances each
detail can be vitally important.’

[7] At the conclusion of the evidence the regional magistrate was required
to consider all the evidence before making his finding. In S v Hadebe9 this
court adopted, with approval, the following statement from Moshephi and
Others v R (1980-1984) LAC 57 at 59F-H –
‘The question for determination is whether, in the light of all the evidence adduced in
the trial, the guilt of the appellants was established beyond reasonable doubt. The
breaking down of a body of evidence into its component parts is obviously a useful
aid to a proper understanding and evaluation of it. But, in doing so, one must guard
against a tendency to focus too intently on the separate and individual parts of what
is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in a trial,
may arise when that aspect is viewed in isolation. Those doubts may be set at rest
when it is evaluated again together with all the other available evidence. That is not
to say a broad and indulgent approach is appropriate when evaluating evidence. Far
from it. There is no substitute for a detailed and critical examination of each and
every component in a body of evidence. But, once that has been done, it is
necessary to step back a pace and consider the mosaic as a whole. If that is not
done, one may fail to see the wood for the trees.’10

[8] The alleged rape took place at the appellant’s home which was literally
right next to the complainant’s home – a few metres separated them. The
state called three witnesses: the complainant’s brother, Mushomi Ndoahana,

8 2009 (1) SACR 552 (SCA).
9 1998 (1) SACR 422 (SCA) at 426f-h.
10 See also S v Van Aswegen 2001 (2) SACR 97 (SCA) para 8; S v Mbuli 2003 (1) SACR 97
(SCA) para 57.

the complainant’s sister-in-law, Molaharo Ndoahana, and the complainant.
The prosecutor also handed in a J88 report of the medico legal examination.
The appellant testified and called his grandmother, Martha Ramulifho. The
regional magistrate then proceeded to consider the state’s evidence and then,
having found that evidence to be credible and reliable, proceeded to consider
whether the appellant’s evidence could be reasonably possibly true. He
concluded that the appellant was guilty because he had admitted in argument
that he had had intercourse with the complainant. It is unnecessary to decide
whether this statement by the accused constituted evidence or was properly
received in terms of either s 115(2) or s 220 of Act 51 of 1977. For purposes
of this judgment I shall accept that the statement is a formal admission by the
appellant that he had intercourse with the complainant.

[9] The regional magistrate’s approach to the evidence was manifestly
wrong because he did not follow the approach already referred to and
consider whether, in the light of all the evidence, it had been established that
the appellant was guilty beyond reasonable doubt. The conclusion reached
had to take all the evidence into account. ‘Some of it might be found to be
false; some of it might be found to be unreliable; and some of it might be
found to be only possibly false or unreliable; but none of it could be simply
ignored.’11 The appellant was obviously entitled to be acquitted if there was a
reasonable possibility that he might be innocent.12

[10] The complainant’s brother obviously jumped to the conclusion that the
appellant had raped the complainant, when he returned home at about 18h30
and found that she was not there but at the appellant’s home. He drew an
inference from insufficient facts and did not budge from his view. The
complainant’s sister-in-law testified that she was at home on 8 August 1999
(the incident took place on 2 August 1999 and this discrepancy was never
explained) when the complainant returned crying and when she enquired why
the complainant said that the appellant had had intercourse with her. The
complainant testified that the appellant called her to his home, told her to

11 S v Van der Meyden 1999 (2) SA 79 (W) at 81I-82E; S v Van Aswegen supra para 8.
12 S  v Mbuli supra para 57.

undress and lie down and then undressed and took out his private part and
raped her. She used the word ‘rape’ repeatedly with no apparent
understanding of its meaning. She clearly did not understand what intercourse
is but, by means of obviously leading questions, the prosecutor got on record
that the appellant had had intercourse with the complainant. Eventually the
complainant insisted that the appellant had had sexual intercourse with her.
The appellant testified that he had not had sexual intercourse with the
complainant, that the complainant’s brother had been extremely angry and
assaulted him and that he was assaulted at the police station and forced to
admit that he had had intercourse with the complainant. He did this because
he was frightened. Martha Ramulifho testified that the appellant proposed love
to girls; that the complainant had come to the appellant’s home; but that she
had not entered before her brother arrived on the scene and that he was very
angry. She could not say what had happened between the complainant and
the appellant but it was clear that the complainant’s brother had assaulted the
appellant.

[11] In every rape case the objective evidence provided by the medico
legal examination of the complainant is essential to determine where the truth
lies. This evidence must always be carefully scrutinised by the presiding
judicial officer as the examination and the injuries found will usually determine
the outcome of the trial. If the results of the examination show that a sexual
assault has taken place the accused’s denial of intercourse will usually be
rejected. If the results of the examination are inconsistent with the
complainant’s description of a sexual assault the accused’s denial of
intercourse will usually be accepted as reasonably possibly true. The report of
the medico legal examination performed in this case, on 5 August 1999,
contradicts the state’s case. The doctor did not find any injuries or anything
abnormal and he did not conclude that the complainant had recently had
intercourse. He reported that the hymen was ‘opened’ but did not say whether
this was a recent development or that it showed any signs of having been
torn. If the purpose of the examination is borne in mind it is striking that the
doctor expressed no opinion that the examination shows that the complainant
had sustained injuries consistent with forceful penetration of her vagina and

that this indicates that she was sexually assaulted. In short, the contents of
the report supports the appellant’s denial that he had had intercourse with the
complainant. This means that the appellant’s denial is reasonably possibly
true. If there was any doubt as to what the import of the report was, to ensure
a fair trial the regional magistrate should have called the doctor so that he
could explain whether his findings supported the state’s case. Unfortunately
the regional magistrate misread or was misled about the contents of the
report. He clearly did not understand the significance of the findings or the
problem which the findings presented for the state.

[12] During argument the appellant admitted that he had had intercourse
with the complainant. This was an astonishing about-turn. The appellant had
denied this throughout the trial and when he testified he denied that he had
had intercourse and he had not been shown to be unreliable let alone
discredited – particularly in the light of the J88 which supported his evidence.
In these circumstances the regional magistrate should have investigated the
appellant’s change of stance to establish whether he really meant to admit
that he had had intercourse with the complainant. At the very least, in view of
the appellant’s evidence about the assaults, the regional magistrate should
have investigated whether the appellant had been induced by threats or
assaults to admit to the intercourse. Even if the appellant had confessed to
the rape the court would have been obliged to ascertain from the other
evidence that the crime had been committed.13 Unfortunately the regional
magistrate did not do so and this failure is consistent with the manner in which
the regional magistrate conducted and allowed the prosecutor to conduct the
trial. The regional magistrate did not inform the appellant of his right to legal
representation; he did not properly explain to the appellant how to cross-
examine,14 and when the appellant showed, through his questions, that he did
not understand how to cross-examine, he did not assist the appellant to put
questions; he allowed the prosecutor to ask obviously leading questions on

13 S v Kumalo 1983 (2) SA 379 (A) at 382C-F and 383F-H where the court observed that:
‘Experience in the administration of justice has shown that people occasionally do make false
confessions for a variety of reasons. Our courts have recognised this phenomenon of human
nature’.
14 See S v May 2005 (2) SACR 331 (SCA) paras 11-13.

the material issues and to lead inadmissible evidence about what the
appellant said at various times; he did not properly explain to the appellant his
rights in respect of the medico legal report15 and he clearly did not read it, or,
if he did, he did not understand its import. Eventually, when he gave judgment
the regional magistrate did not properly consider all the evidence. With regard
to the complainant, he did not warn himself about the dangers inherent in
dealing with a child’s evidence and there is no suggestion that he carefully
considered her evidence to determine whether it could be found to be
reliable.16 He dealt with the  appellant’s and Martha Ramulifho’s evidence in
two or three lines and what he says does not properly reflect the substance of
what they said and he did not consider their evidence in the light of the
medico legal report which obviously indicated that they were telling the truth.
The conduct of the trial shows that a lack of legal representation prejudiced
the appellant. The respondent’s counsel’s concession was clearly correct.

[13] In my view, even if it is accepted that all the evidence was properly
before the court, it did not prove beyond a reasonable doubt that the appellant
was guilty and he should have been acquitted.

[14] For those reasons the appeal was upheld, the conviction and sentence
set aside and the immediate release of the appellant ordered.

[15] Unfortunately something must be said about the time it has taken for
this appeal to reach this court. The appellant has spent twelve years in
custody, two years awaiting trial and another ten years waiting for his
application for leave to appeal and this appeal to be heard. Some light is shed
on the delays in the appellant’s application for condonation. According to the
appellant, the appellant’s counsel in the high court did not inform him of his
right to apply for leave to appeal and he found out from his fellow prisoners

15 eg. in terms of s 212 of Act 51 of 1977 the court has a discretion to call the doctor, who
conducted the medico legal examination, to give oral evidence in explanation of his findings
and would exercise that discretion if requested to do so by an unrepresented accused. See S
v Hlongwa 2002 (2) SACR 37 (T) para 22.
16 See R v Manda 1951 (3) SA 158 (A) at 163C; Woji v Santam Insurance Co Ltd 1981 (1) SA
1020 (A) at 1028B-D; S v J 1998 (2) SA 984 (A) at 1009B; S v V 2000 (1) SACR 453 (SCA) at
454h-i.

that he had such a right and that if he succeeded in obtaining leave he could
appeal against both the conviction and sentence. They also told him that he
could apply to be represented by a legal aid attorney. On 4 June 2003 he
telephoned the legal aid office in Thoyohandou and was told that a legal aid
officer would visit him in due course to take instructions. This happened in
August 2003 and the legal aid officer told the appellant that he would
communicate with him again as soon as he had obtained the transcript of the
proceedings and a date for the hearing of the application for leave to appeal.
Seven years passed before the appellant’s attorney, Mr Thomu, visited the
appellant in prison and told him that the application for leave to appeal had
been enrolled for hearing on 8 November 2010. On that day leave was
granted. Mr Thomu then told the appellant that he, Thomu, would
communicate with the appellant as soon as the registrar of the high court had
sent the record to this court. In February 2012 Mr Thomu visited the appellant
in prison and told him that he, Thomu, had received the record on 2 February
2012, that he would file the record at this court and that he would commence
preparing for the appeal. According to Mr Thomu, in June 2009 he was
appointed by the legal aid board to represent the appellant and he informed
the appellant that he, Thomu, would have to apply to the registrar of the high
court for a transcript of the proceedings so that the appellant could apply for
leave to appeal. He received the transcript in July 2010 and the application for
leave to appeal was enrolled for hearing. Thereafter the record of the
proceeding for the purpose of this appeal was received on 2 February 2012
and this was filed with the registrar of this court.

[16] The appellant and Mr Thomu have provided very little detail but from
this somewhat sketchy information it appears that the delays were caused at
various stages of the appeal process by –
(1) the failure of the appellant’s advocate to inform him, immediately after
sentence, of his right to apply for leave to appeal and his right to appeal;
(2) the failure of the legal aid officer who consulted with the appellant in
August 2003 to appoint an attorney to represent the appellant and order a
transcript of the proceedings to enable the appellant to apply for leave to

appeal – there is no explanation for this in the papers but it indicates a
complete lack of diligence and attention to the case;
(3) the failure of the appellant to follow up his instructions to ascertain what
progress his attorney was making – again this is not explained but it was
probably due to the appellant’s lack of education and means. Also not
explained is the sudden appointment, after the passage of seven years, of Mr
Thomu to represent the appellant;
(4) the failure of the legal aid officer or attorney appointed by the legal aid
board to expeditiously obtain the record for the purpose of the application for
leave to appeal and the appeal itself. The record with exhibits is only 81
pages and could be prepared in a day or two. It is inconceivable that it could
take one year to prepare such a record for the application for leave to appeal
and sixteen months to prepare the record for the appeal in this court. These
failures indicate a lack of diligence and even a high degree of negligence on
the part of the legal aid officer and the attorney appointed by the legal aid
board.  The legal aid officer and the attorney appointed by the legal aid board
should have followed up the requests for the record and made sure that the
appeal process was not delayed. On the face of it the delays are inexcusable.

[17] Delays of this nature in the prosecution of a criminal appeal when the
appellant is serving a prison sentence are not acceptable and run contrary to
the ethic which should prevail in the administration of the criminal justice
system. Where a convicted person who is serving a prison sentence wishes to
appeal, every person involved in the process must ensure that he or she
does, with the utmost expedition, what he or she is required to do. The judge
or magistrate must hear the appliction for leave to appeal without delay, the
registrar or clerk of the court must have the record transcribed and prepare
the record of proceedings and transmit and file all necessary documents
without delay, the attorney representing the accused must ensure that
everyone involved expeditiously does what is required. And that is because
the freedom of the individual is involved and must be safeguarded within the
limits of the law. It is an egregious violation of individual freedom to detain a
person in prison, and it is the solemn duty of every judicial officer, official
involved in the administration of justice, and the legal practitioner representing

the accused to ensure that it will happen only with the full authority of the legal
process. The judicial officer and every other official involved in the legal
process whereby a person is deprived of his freedom are obliged to ensure
that that process obtains the full stamp of approval of the law as quickly as
possible and the impression must never be created that our courts and judicial
officials are indifferent to the freedom of the individual.17

[18]  For these reasons the registrar is directed to send copies of the record,
the heads of argument filed by the appellant and the respondent, the
appellant’s application for condonation and this judgment to the president of
The Law Society of the Northern Provinces and to the Chairman of the Legal
Aid Board to investigate the reason for the delays referred to in this judgment
and to take whatever steps they deem necessary against those responsible.

______________________
B R SOUTHWOOD

ACTING JUDGE OF APPEAL

17 See eg S v Letsin 1963 (1) SA 60 (O) at 61A-H.

APPEARANCES

For Appellant:

THOMU A L

Thohoyandou Justice Centre

Thohoyandou

Justice Centre

Bloemfontein

For Respondent:

MAKHERA R J
The
Director
of
Public
Prosecutions

Limpopo High Court

Thohoyandou

The Director of Public
Prosecutions
Supreme Court of Appeal
Bloemfontein