The appellant was charged in the Secunda Regional Court with two counts of raping a nine-year-old complainant (PZ) in January and February 2004. The complainant lived in a household shared with several adults and children, including the appellant. She alleged that the appellant entered her room at night on two occasions and raped her. She later developed genital symptoms, and a medical examination revealed infection with herpes simplex virus type 2, a sexually transmitted disease. The appellant denied committing the offences but was convicted and, following referral to the North Gauteng High Court in terms of s 52(1)(b) of the Criminal Law Amendment Act 105 of 1997, was sentenced to 15 years’ imprisonment. After conviction and sentence, the appellant underwent a blood test which indicated that he was not infected with herpes 2 and could never have transmitted it. He applied on appeal to introduce this further evidence.
The application to adduce further evidence on appeal was granted. The appeal was upheld. The appellant’s convictions on two counts of rape were set aside, and the sentence of 15 years’ imprisonment was set aside.
The case is significant for clarifying the exceptional circumstances under which South African appellate courts may admit further evidence, including evidence of facts arising after conviction. It reinforces the De Jager requirements and emphasises that the interests of justice may override the principle of finality, particularly where new evidence fundamentally undermines the safety of a conviction. The judgment also highlights the prosecutorial duty to assist the court in ascertaining the truth.