THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

NOT REPORTABLE
Case No: 20133/14
In the matter between:

KHOLILE JACKSON TOFA
APPELLANT

and

THE STATE
RESPONDENT

Neutral citation:
Tofa v The State (20133/14) [2015] ZASCA 26
(20 March 2015)
Coram:

Mpati P, Majiedt JA, and Schoeman AJA
Heard:
16 MARCH 2015
Delivered:
20 MARCH 2015
Summary:
Rape
conviction
–
whether
guilt
proved
beyond
reasonable doubt on evidence of a single witness –
application to adduce further evidence – principles
restated.

______________________________________________________________

ORDER

______________________________________________________________

On appeal from: High Court, Free State Division, Bloemfontein (Lekale J and
Zietsman AJ, sitting as court of appeal):

(1)
The application to adduce further evidence is dismissed.
(2)
The appeal against conviction is dismissed.

______________________________________________________________

JUDGMENT

______________________________________________________________

Majiedt JA (Mpati P and Schoeman AJA concurring):

[1] This is an appeal against an order of the High Court, Free State
Division, Bloemfontein (Lekale J and Zietsman AJ, sitting as a court of
appeal), dismissing an appeal to it against the conviction of the appellant, Mr
Kholile Jackson Tofa, on a count of rape in the Bloemfontein Regional Court.
There is also an application before us to lead further evidence. The high court
granted leave to appeal to this court and, although the application to adduce
further evidence was not before it, expressed the view that this court should
consider that application together with the appeal. It is convenient to consider
that application first.

[2] The appellant placed an affidavit from the complainant before the high
court. That affidavit purportedly showed that the complainant admitted that
she had not been raped. In an opposing affidavit the complainant, Ms Nomsa
Christonia Baadjie, disputed the authenticity of her alleged affidavit and
pointed out that her surname had been misspelt as ‘Bhatyi’ in it, whereas her
surname was ‘Baadjie’. The policeman who is alleged to have commissioned
the disputed affidavit, Constable Sabata Motjetje, also deposed to an affidavit.
In it he denied any knowledge of the statement or that he knew the
complainant prior to meeting her when a State advocate set up a meeting with
the two of them to clarify the disputed affidavit.

[3] A brief recital of how the matter proceeded in the high court is
necessary. The appellant, who was legally represented at all times, was
convicted of rape on 4 March 2011 and sentenced to 10 years’ imprisonment
on 5 April 2011. On the last-mentioned date the regional magistrate refused
his application for leave to appeal against conviction and sentence. On 21
November 2011 the high court (Musi J and Kubushi AJ) granted leave to
appeal to the high court on petition. The appellant was granted bail pending
his appeal, which was heard on 3 June 2013 but without an accompanying
application to lead further evidence. The appeal was dismissed by Lekale J
and Zietsman AJ. On 25 July 2013 the matter came before Moloi J as duty
Judge, who granted leave for it to be set down before the Full Court to
consider the relief sought, namely a ‘rescission’ of the judgment on appeal by
Lekale J and Zietsman AJ. The Full Court (Kruger J, Van Zyl J and Molemela
J) dismissed this extraordinary application and postponed it to 1 November
2013 for hearing by Lekale J and Zietsman AJ as part of the application for
leave to appeal. We do not have the reasons (if any had been given) for the
orders issued by Moloi J and by the Full Court before us. But it does appear
as if the Full Court dismissed the application before it primarily on the basis
that the appellant sought to introduce a civil law remedy in criminal
proceedings. The appellant’s bail was extended to 1 November 2013, on
which date the hearing was postponed to 29 November 2013 and bail was
further extended. Lekale J and Zietsman AJ granted leave to appeal against
conviction to this court but regarded themselves as functus officio as far as

the application for leave to adduce further evidence was concerned. They
thought it proper that this court should deal with that aspect on appeal.

[4] The test for the hearing of further evidence on appeal is well
established. The requirements are:
(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 1965 (2) SA 612 (A) at 613C-D; S v Ndweni & others 1999
(4) SA 877 (SCA) at 880D.

[5] The power to receive further evidence on appeal is sparingly exercised;
further evidence will only be allowed in exceptional circumstances so that
there can be finality in cases – De Jager at 613A. The present application
does not meet the first two requirements above. In his affidavit the appellant
says that, while in prison, he was visited by his relatives who conveyed to him
that the complainant wanted to recant her testimony. What is glaringly absent
is an identification of these relatives so that the State could follow this up. Also
lacking is the date on which this information became available to the
appellant. This has a material bearing on the first requirement. The evidence
was available when the appeal was heard in the high court and yet there was
no application for it to be led. We have not been given any explanation for this
omission. This dearth of detail negated the State’s ability to follow up these
allegations. As it turned out, the State did follow up where it could, namely in
respect of the alleged recanting affidavit of the complainant, which is what I
discuss next.

[6] The affidavits of the complainant and Constable Motjetje cast great
doubt on the authenticity of the alleged recanting affidavit. And the misspelling
of the complainant’s family name exacerbates the matter. There is a strong
suspicion that this new evidence is a fraudulent fabrication, but it is not
necessary to make a finding in this regard. It suffices to hold that the

application does not meet the first two requirements set out in para 4 (a) and
(b) above and it falls to be dismissed.

[7] With regard to conviction, the thrust of the appellant’s attack was that
the complainant’s testimony lacked credibility, that no reliance can be placed
on her as a single witness absent any acceptable corroborating evidence and,
lastly, that the appellant’s version was reasonably possibly true. The trial court
erred in accepting the complainant’s evidence and rejecting his, so the
appellant contended. The salient facts were briefly as follows (most of the
facts were common cause):
The appellant and the complainant lived in the same street and were known to
each other. The complainant bought liquor from the appellant (who ran a
shebeen) on several occasions. On the date and at the place stated in the
charge sheet the parties had sexual intercourse at the appellant’s house. The
appellant alleged that this was consensual, whereas the complainant’s
version was that it was not. Immediately thereafter, the complainant went to
her mother’s house and reported that the appellant had raped her (her mother
confirmed this report). Thereafter she laid a complaint with the police and she
was medically examined. The J88 medical report recorded no visible physical
injuries, except for a superficial abrasion on the fossa navicularis which was
indicative of probable penetration. The appellant’s version was that he and the
complainant had been in a clandestine love relationship for over two years
without there ever having been any sexual intimacy involved (the appellant
was a married man at that time). On the evening in question, on the
appellant’s version, she came to his house to buy beer and sexual intercourse
occurred at her instigation and insistence. On his version the complainant
made advances and although he initially showed no interest, he later
succumbed to her wiles, due to the fact that his wife was not at home. The
complainant had a completely different version. According to her, the
appellant had pulled her into a bedroom, threw her on a bed, then proceeded
to undress her and thereafter raped her.

[8] It is trite that an appellate court has limited powers to interfere with the
factual findings of a trial court, which are presumed to be correct unless they

are clearly wrong ex facie the record; see – S v Francis 1991 (1) SACR 198
(SCA) at 204e-d. While it is true that the complainant’s evidence was not
without blemishes, it was not nearly of such poor quality that it warranted
outright rejection. The primary issue was that of consent. It matters therefore
not that she was not fully consistent about the time she had arrived at the
appellant’s place, whether she had an empty beer bottle with her or not and
on the minute detail of how sexual intercourse had occurred. Of more
materiality were the events afterwards. She walked a long way to report the
rape to her mother. And she was in a tearful state when she arrived at her
mother’s house.

[9] The appellant’s version, on the other hand, was correctly found to be
false beyond reasonable doubt. He would have the trial court believe that,
while in a secret love relationship for two years with the complainant, they had
not been sexually intimate until the evening in question. When that watershed
moment did eventually arrive, the complainant quite remarkably cried rape.
And his explanation that the complainant had been paid R2 000 by a Ms
Sophie Malisa to lay a false charge against him beggars belief. Ms Malisa
held a grudge against him, said the appellant, due to a previous incident when
Ms Malisa’s daughter, Mandwa, had died at the appellant’s hands. The
appellant was charged with her murder but was acquitted on the basis of self-
defence. The fatal flaw in this explanation is the fact that the complainant
made the rape allegation that same night, having gone directly from the
appellant’s dwelling to that of her mother. On the undisputed facts there had
been no opportunity for the complainant to have met with Ms Malisa before
making the rape report, to hatch this conspiracy against him.

[10] In the circumstances, the regional magistrate’s findings are
unassailable. The appeal must fail.

The following order is issued:

1. The application to adduce further evidence is dismissed.
2. The appeal against conviction is dismissed.

________________________
S A Majiedt
Judge of Appeal

Appearances

For the Appellant: P W Nel
Instructed by:
Bloemfontein Justice Centre

For Respondent:
W J Harrington

Instructed by:

The Director of Public Prosecution, Bloemfontein