The applicant, Thabo Floyd Zulu, was convicted in the Regional Court, Roodepoort, of raping his 11-year-old niece by relationship (the daughter of his partner’s sister) and sentenced to 15 years’ imprisonment. The rape occurred shortly after midnight on 17 December 2013 while the complainant was asleep at her aunt’s home in a secure complex. The complainant testified that the applicant entered the room, digitally penetrated her and then raped her vaginally. Immediately after the incident, she sent SMS messages to her mother identifying the applicant as the perpetrator and describing the assault. Medical examination confirmed injuries consistent with rape. DNA samples taken from the complainant and her clothing matched the applicant’s DNA. The applicant denied the offence and claimed he arrived home later and was asleep with his partner at the time. Leave to appeal was refused by the Regional Court and on petition by the Gauteng Division of the High Court. An application for special leave to appeal to the Supreme Court of Appeal was initially refused and referred for reconsideration under s 17(2)(f) of the Superior Courts Act.
The application for special leave to appeal was dismissed.
The case reaffirms the stringent requirements for granting special leave to appeal in the Supreme Court of Appeal, particularly the necessity of demonstrating reasonable prospects of success and special circumstances. It underscores the probative strength of properly handled DNA evidence in sexual offence cases and clarifies that an uninterrupted chain of custody does not require testimony from every individual who handled the samples. The judgment also illustrates the application of the cautionary rule to child witnesses while confirming that their evidence may sustain a conviction when materially satisfactory and corroborated.