Joseph Mfula Mulula v The State

The appellant was charged in the Secunda Regional Court with two counts of rape of his brother's stepdaughter (PZ), who was under the age of ten at the time. The incidents allegedly occurred in January and February 2004. PZ testified that a man came into her room at night on two occasions and had intercourse with her without consent, threatening to kill her if she told anyone. Due to these threats, she did not report the incidents immediately. PZ's mother later noticed that PZ was experiencing discomfort and took her to Dr de Villiers, who identified the condition as emanating from a sexually transmitted disease, herpes 2. When informed of this, the mother questioned PZ, who then revealed what had happened. PZ identified the appellant as her assailant, stating she knew him well and that he had switched on the electric light on both occasions. However, under cross-examination, she became uncertain about whether the light was on or off, and conceded that she "thought it was" the appellant. The appellant pleaded not guilty and denied being the assailant. He was convicted by the regional magistrate's court and sentenced by the North Gauteng High Court (Moshidi J) to 15 years' imprisonment on both counts taken together. After conviction and sentencing, the appellant's new legal representative arranged for a blood test, which was conducted on 6 November 2008. The test results indicated that the appellant was not infected with herpes 2.

• Whether the appellant's identification by the complainant as her assailant was reliable and whether the convictions were sound
• Whether the court should grant the application to introduce further evidence on appeal, namely the blood test results showing the appellant did not have herpes 2
• Whether the requirements in S v De Jager for admitting new evidence were satisfied: (a) reasonable explanation for not leading evidence at trial; (b) prima facie likelihood of truth; (c) material relevance to outcome
• Whether the further evidence should be admitted in the form of affidavits on appeal or whether the matter should be remitted to the trial court for hearing of oral evidence
• Whether evidence of facts established subsequent to conviction and sentence can be admitted in exceptional circumstances

The Supreme Court of Appeal ordered: (1) The application for the hearing of further evidence on appeal is granted; (2) The appeal is upheld; (3) The appellant's convictions by the regional magistrates' court on two charges of rape are set aside; (4) The sentence of 15 years' imprisonment imposed by the high court is set aside.

The binding legal principles established by this case are: (1) Evidence of facts arising subsequent to conviction may be admitted on appeal in exceptional circumstances where the interests of justice demand it, even though the general rule is that an appeal court decides whether a judgment is right or wrong according to facts existing at the time it was given. (2) The requirements in S v De Jager for admitting new evidence on appeal apply equally to evidence of subsequently arising facts: (a) there must be a reasonably sufficient explanation for why the evidence was not led at trial; (b) there must be a prima facie likelihood of the truth of the evidence; and (c) the evidence must be materially relevant to the outcome of the trial. (3) Where new evidence sought to be introduced is undisputed or incontrovertible, the appeal court may admit it in affidavit form rather than remitting the matter to the trial court, particularly where significant time has elapsed since trial and further delay would be undesirable. (4) In identification cases, uncertainty by a complainant about key circumstances affecting visibility (such as whether a light was on or off) raises the real possibility of honest mistaken identification, which must be taken seriously by courts. (5) Subjective certainty by a witness as to identification provides no safeguard against honest mistake and cannot cure doubts raised by uncertainty about circumstances affecting identification. (6) An adverse credibility finding against an accused based solely on failure to provide an acceptable motive for a false accusation by the complainant cannot be sustained, particularly where the real issue is possible mistaken identification rather than deliberate fabrication. (7) Where medical evidence establishes that a complainant was infected with a sexually transmitted disease during a rape, and that such disease is lifelong and always detectable in blood tests even when dormant, proof that the accused does not have and never had that disease is materially relevant and likely determinative of guilt or innocence.

Brand JA made several non-binding observations: (1) He noted that it was "rather surprising" that the State did not pursue a blood test for herpes 2 during the trial, given that a simple blood test could conclusively determine whether the appellant could be responsible for PZ's infection. (2) He reminded prosecutors that their role differs from that of counsel or attorneys representing clients, as they stand in a special relationship to the court, with a primary duty not to procure convictions at all costs but to assist the court in ascertaining the truth. This observation was particularly relevant given the State had procured a DNA test (which proved inconclusive) but not a simpler and more relevant blood test for herpes 2. (3) He commented that the question of whether new evidence should be admitted depends on "what the interests of justice demand in a particular case." (4) He observed that the State's difficulty in the case was "not so much based on the possibility of a deliberate false accusation by PZ, but on the possibility of a mistaken identification of her assailant," making inquiry into motives for false accusation irrelevant. (5) He noted the "inherent probability" that "with so many people in the house, the assailant would not have switched on the light and left it on while he performed his evil deed." (6) He stated that he would "accept for the sake of argument" that the appellant must pass the more stringent "interests of justice" test for subsequently arising facts, though he did not definitively decide this point. (7) He observed that "it can be said that if the new evidence is to be admitted the convictions and sentences are bound to be set aside," indicating the determinative nature of the blood test evidence.

This case is significant in South African criminal law and procedure for several reasons: (1) It clarifies the test and requirements for admitting new evidence on appeal under s 22 of the Supreme Court Act 59 of 1959 (now s 19 of the Superior Courts Act 10 of 2013), particularly in the context of evidence of facts arising subsequent to conviction. (2) It emphasizes that evidence of subsequently arising facts may be allowed in exceptional circumstances where the interests of justice demand it. (3) It provides guidance on when an appeal court should hear new evidence in affidavit form versus remitting the matter to the trial court, favoring the former where evidence is undisputed or incontrovertible and delay would be undesirable. (4) It reinforces important principles regarding identification evidence, particularly the dangers of relying on subjective certainty and the need to guard against honest mistakes in identification. (5) It reaffirms that adverse credibility findings against an accused based solely on failure to provide an acceptable motive for false incrimination cannot be sustained. (6) It reminds prosecutors of their special duty to assist the court in ascertaining truth rather than procuring convictions at all costs. (7) It demonstrates the application of scientific evidence (medical testing for sexually transmitted diseases) in determining guilt or innocence in rape cases. (8) The case illustrates the court's willingness to overturn convictions where new evidence definitively establishes innocence, even years after trial.