IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN
CASE NO: A552/11
In the appeal of:

and

[1] This appeal came before us, a full bench of this court, from a judgment of a single judge in terms of which appellant was convicted of rape and sentenced to 23 years’ imprisonment. The judge below granted appellant leave to appeal against his sentence but not against his conviction.
[2] Upon a perusal of the record, however, we formed the view that the conviction might not have been justified in the light of the evidence on record. We were informed by his counsel that appellant also wished to appeal against his conviction, if possible. The problem, however, was that appellant had not been granted leave to appeal against his conviction. Only the Supreme Court of Appeal (‘SCA’) could grant such leave.
[3] After hearing full argument on the merits of the conviction we formed the view that appellant’s prospects of success in an appeal against his conviction were good. We accordingly delivered a written judgment titled ‘provisional determination’ which appellant could present to the SCA in the event of his launching an application for leave to appeal against his conviction.
[4] Appellant subsequently applied to the SCA for leave to appeal against his conviction. Such leave was granted by the SCA on 18 October 2012.
[5] The appeal again came before us on 22 October 2012. Counsel for appellant submitted that the appeal should be upheld. Counsel for the State did not make any submissions.
[6] For the reasons stated in the provisional determination we are satisfied that appellant’s appeal against his conviction should succeed.

[7] In the result we make the following orders: 
(1) Appellant’s appeal against his conviction is upheld.
(2) His conviction and the resultant sentence are set aside.

A P BLIGNAULT

N J YEKISO

E T STEYN