Admissibility of Further Evidence on Appeal: B v The State

B[…] v The State (1491/2024) [2026] ZASCA 71 (13 May 2026)

The appellant, Mr J[…] B[…], appeared in the Regional Court, Krugersdorp, on two counts of rape committed at the Bosasa Youth Centre, where he and the complainants were detained. Count 1 related to the rape of CR, a 17-year-old male, on 5 April 2019, when the appellant was 18 years old. Count 2 related to the rape of MVW, a 15-year-old male, on 27 June 2018.

The appellant, who was legally represented, pleaded guilty to both counts. He was warned that the offences attracted the prescribed minimum sentence of life imprisonment under s 51(1)(a) read with Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997.

Before sentencing, the Regional Court obtained a pre-sentence report compiled by probation officer Mrs Annette Vergeer. The report stated that the appellant was HIV-positive and knew of his status when committing the offences. It also recorded that CR alleged he contracted HIV as a result of the rape and described the offences as effectively a “death sentence” for the complainants.

When invited to address the existence of substantial and compelling circumstances, the appellant’s legal representative made no meaningful submissions. Asked directly whether the appellant knew of his HIV-status at the time of the offences, counsel confirmed that he did, despite no medical evidence having been produced.

The Regional Court imposed life imprisonment on Count 1, relying heavily on the appellant’s alleged HIV-positive status as an aggravating factor, and 10 years’ imprisonment on Count 2, the sentences to run concurrently. The Full Bench of the Gauteng High Court dismissed the appellant’s appeal and similarly relied on his alleged knowledge of his HIV-status.

On special leave to appeal before the Supreme Court of Appeal (SCA), the appellant sought to introduce new evidence: a Lancet Laboratories report dated 22 January 2024 confirming that he was HIV-negative. Expert evidence from Professor Eftyhia Vardas established that a genuinely HIV-positive person cannot later test HIV-negative absent a stem cell transplant, which the appellant had not undergone.

The SCA considered two principal issues. First, whether the new evidence was admissible under s 19(b) of the Superior Courts Act¹ and the principles in S v De Jager.² Secondly, whether the Regional Court’s reliance on unverified evidence of HIV-status constituted a material misdirection justifying interference with sentence.

The appellant argued that the medical evidence conclusively proved he had never been HIV-positive, that the probation officer’s report contained unverified hearsay, and that the State had failed to medically establish a factor relied upon to justify life imprisonment. He further contended that, absent the HIV factor, his youth, intellectual immaturity, traumatic upbringing, history of abuse, drug dependency, guilty plea and lack of previous sexual convictions collectively constituted substantial and compelling circumstances.

The State argued that the HIV evidence was merely an aggravating circumstance and not foundational to the convictions, that youth alone did not justify leniency in rape matters, and that interference with sentence would undermine public confidence in the criminal justice system.

The SCA admitted the further evidence, finding it prima facie credible, scientifically objective, and materially relevant to sentence. The Court accepted that the appellant’s intellectual functioning, equivalent to that of an 8 to 9-year-old child, explained why the evidence had not been obtained earlier. Excluding it would, in the Court’s view, produce a miscarriage of justice.

The Court held that where the State seeks to rely on an accused’s HIV-positive status as an aggravating factor under s 51(1), it must adduce proper medical evidence establishing that the accused was HIV-positive at the relevant time and knew of that status. Where transmission is alleged, evidence must also establish that the complainant contracted HIV because of the offence.

The probation officer’s account of verbal disclosures by the appellant and complainant was held to be inadmissible hearsay on a matter of considerable gravity. Relying on constitutional rights to dignity, bodily integrity and privacy, as well as the statutory protections governing HIV testing under the Criminal Law (Sexual Offences and Related Matters) Amendment Act,³ the Court found that bare hearsay could not justify such a severe sentence.

The SCA concluded that both the Regional Court and Full Bench materially misdirected themselves by relying on unverified hearsay. Once the HIV factor was removed, the appellant’s personal circumstances amounted to substantial and compelling circumstances under s 51(3) of the Act.

The Court replaced the life sentence on Count 1 with 15 years’ imprisonment and ordered that 10 years of that sentence run concurrently with the 10-year sentence on Count 2, resulting in an effective sentence of 15 years’ imprisonment, antedated to 9 November 2021.

Author’s Opinion

The Court appears to conflate two distinct questions: 1. whether the HIV-evidence was improperly relied upon (a question of evidentiary admissibility and weight) and 2. whether its removal from the sentencing equation justified a sentence reduction of such magnitude. Life imprisonment was substituted with 15 years, which is a dramatic reduction. One might question whether the other aggravating factors such as the vulnerability of the victims (both minors in a place of detention), the power dynamics inherent in the institutional setting, and the fact that there were two complainants, received adequate weight in the recalibrated sentence.

There is also a question about the State’s conduct that the judgment leaves somewhat underexamined. The Court notes, almost in passing, that the State took no steps to verify the HIV-status of the appellant despite intending to rely on it at sentencing. This was a serious institutional failure. The judgement sounds a caution when it notes that the Court had warned prosecutors in Mulula v The State⁴ back in 2014, but stops short of any structural remedy or directive to prosecuting authorities. A stronger judgment might have issued clearer guidance or referred the matter to the National Director of Public Prosecutions.

Finally, while the Court is sympathetic to the appellant’s background, the guilty plea to rape of two minors remains the foundational fact. There is a risk that the emphasis on the appellant’s own victimhood and diminished functioning, which I agree is relevant and legally legitimate, overshadows the equally traumatised complainants, one of whom believed he had contracted HIV as a result of the rape. The Court gestures toward hope that the admission of the HIV-negative result might encourage the complainants to be tested; but this feels like a thin consolation in a judgment that, from the complainants’ perspective, dramatically reduces the sentence their abuser will serve.

Ultimately, this case is a story about systemic failure, and, in my opinion, the judgment, while welcome, does not go far enough in confronting it.

The Regional Court should never have been placed in the position it was. A probation officer recorded a verbal disclosure from an 18-year-old with the emotional functioning of an 8-year-old and embedded it in a pre-sentence report. His legal representative, having given him five minutes to review that report, confirmed on his behalf, in open court, that he was HIV-positive. No medical test was conducted. No verification was sought. And on the strength of this, which was effectively nothing more than rumour laundered through officialdom, a court sentenced a human being to die in prison.

The State’s submission that the Lancet report was “irrelevant” because no attempted murder charge was laid deserves to be named for what it is: which is an argument that the accuracy of an aggravating fact is immaterial so long as it served the prosecution’s purposes. That is a troubling position for any state authority to advance, and the Court was right to reject it.

But the deeper scandal, which I have touched on above, is that the Court itself had issued the same caution that medical evidence is required for HIV-status as an aggravating factor way back in 2014. Twelve years later, nothing had changed. Prosecutors were still relying on unverified hearsay. Courts were still accepting it. An 18-year-old boy with a traumatic history and the mind of a child was sentenced to life imprisonment on a lie, not a deliberate lie, perhaps, but a profound and consequential falsehood that the entire machinery of justice failed to question.

The Court’s substituted sentence of 15 years will, to many observers, seem lenient for two counts of rape of minors. And they are not wrong to feel that tension. Rape is a devastating crime. The complainants suffered real and lasting harm, whatever the appellant’s HIV-status. But a sentence grounded in a false factual premise is not justice. As such, the Court was obliged to correct it.

What this case ultimately demands is not just a judicial ruling, but institutional reform. HIV-status must never be used as a sentencing aggravant without independent medical verification as a non-negotiable procedural requirement. Legal aid representatives in criminal matters, particularly those involving minimum mandatory sentences, must be held to a higher standard of diligence than is reflected in this record. And prosecutorial offices must develop and enforce internal protocols for verifying the factual basis of aggravating circumstances before advancing them in court.

You can read the full B v S judgement here.