Authored By: Nsindiso Makhaye
Stadio Higher Education
Introduction
In South Africa, recent data indicates that the South African Police Services (SAPS) documented 4,000 wrongful arrests during the 2023/24 financial year[1]. From 2021 to 2024, SAPS has disbursed around R1.6 billion in compensation related to wrongful arrest and detention cases[2].
This study investigates legal options available to individuals in South Africa who have been wrongly convicted of rape due to false accusations and seeks to determine if they can hold the State liable for their wrongful conviction.
Indigent South Africans wrongly convicted of rape cannot access compensation through common law delict due to financial constraints, effectively denying them State-provided restitution. This study will investigate the existing gap in compensation for wrongfully convicted individuals in South Africa by analyzing case law, statutes, and academic literature.
Guilty by Accusation effects on minor victims
South Africa experiences one of the highest incidences of rape globally. The South African Police Service (SAPS) reported 55,672 cases of rape in 2022, marking a 3.2% rise compared to 2021. However, it is believed that only about one in every nine rapes is actually reported to the authorities[3]. The large number of reported cases is further complicated by the fact that many incidents go unreported. Victims of sexual abuse may hesitate to come forward due to the trauma involved. Survivors often face emotional distress when recounting their experience, and they may fear disbelief from others.
The tragic suicide of 17-year-old Bafana Sithole in Mpumalanga underscores the grave consequences of such accusations. Following the damage to his reputation caused by unfounded rape allegations, he was discovered deceased by hanging in a classroom. His family holds the school’s management of the situation accountable for his death. This incident was followed by a similar case that took place August 2024. A Grade 9 learner at an independent school in Somerset West was removed from school after being accused of inappropriate touching and explicit language. His mother was called to the school without explanation and later discovered that he had not been given an opportunity to defend himself [4].
Although the school said separating accused learners was standard procedure, the student was placed on precautionary suspension despite limited evidence. At a disciplinary hearing on 4 September, witness statements contradicted the accusations, and the learner was cleared of all but one allegation “touching a complainant” despite no corroborating evidence. Following the incident, rumours spread among peers, leading to bullying and social isolation, and the student eventually left the school due to severe emotional distress. Now studying online, he struggles with anxiety, self-harm, and loss of trust, highlighting how false or poorly investigated allegations can seriously damage reputations and mental health[5].
These cases underscore the need for schools to support victims while also ensuring fair procedures and thorough investigations to prevent unjust harm to innocent learners. The rise of the internet has contributed to the spread of false allegations of sexual assault, which can lead to innocent individuals being wrongfully convicted and imprisoned. This dissertation focuses on the lack of statutory compensation available to people who are wrongly convicted due to false accusations, and it examines the issue of whether the State can be held liable for such wrongful convictions in South Africa.
The lack of statutory remedies for people wrongly convicted as a result of false allegations
Compensation in South Africa is generally obtained by lodging a common-law delictual claim against the perpetrator. However, sections 297(1)(a)(i) and 300 of the Criminal Procedure Act 51 of 1977 allow a court to grant compensation after a criminal trial[6]. In such instances, the compensation order is treated as a civil judgment, meaning that delictual principles still apply. The dissertation argues that although these common-law remedies are available for instituting claims, there is a need to develop the law through the enactment of a specific statutory provision that better addresses the needs of individuals who have been wrongfully convicted.
In South Africa, the Criminal Justice System establishes the rules and processes that allow the state to prosecute individuals accused of committing crimes. This system is made up of several key institutions. The South African Police Service (SAPS) is responsible for investigating criminal activities. The National Prosecuting Authority (NPA) then decides whether there is enough evidence to proceed with prosecution and conduct the prosecution of alleged offenders. The Department of Justice (DOJ) ensures that everyone has fair and equal access to justice. Meanwhile, the Department of Correctional Services (DCS) manages the prison system, ensures that court-imposed sentences are implemented, and focuses on the rehabilitation of convicted offenders[7].
Damage to reputation and legal remedies for individuals cleared by the courts in South Africa.
The judiciary is obligated to uphold and advance the spirit, purpose, and objectives of the Bill of Rights, while also promoting the values that support an open and democratic society founded on human dignity, equality, and freedom[8]. In post-apartheid South Africa, ensuring justice for all citizens should remain a central priority for the judiciary, particularly considering the historical injustices that occurred during the apartheid era. According to John Dugard many of these injustices were linked to a conservative legal system and the inability of many people to access justice. Judicial independence therefore involves more than simply providing physical access to courts; it also encompasses the right of an accused person to fair, appropriate, and constitutionally compliant legal proceedings[9].
Mahlangu v Minister of Police
The Mahlangu case affirms that the core values and principles contained in the Bill of Rights form the basis of South Africa’s constitutional framework. The ideals and principles of the Constitution are intended to protect all individuals and are significant both nationally and internationally[10]. Consistent with sections 231[11] and 232[12] of the Constitution, principles and guidance derived from international law are applicable within South Africa. Furthermore, sections 39, 232, and 233[13] acknowledge international law as a tool for interpreting the Constitution and legislation, while section 231 specifically regulates the relationship between South African constitutional provisions and international law as a source of substantive law.
Conclusion
The Court further acknowledges that the humiliation and human rights violations experienced by someone falsely accused of rape are extremely difficult to repair, even when compensation is awarded for the harm suffered[14].
Discussions
Concerns arise regarding whether section 208 of the Criminal Procedure Act (CPA) adequately safeguards innocent individuals, particularly in cases where the state proves an accused’s guilt beyond a reasonable doubt based solely on the testimony of a single witness. Although no additional corroborating evidence is required, the presiding officer must exercise caution and ensure that the witness is competent[15].
Shezi matter
The Sifiso Shezi case involved a situation where a mother manipulated her child to create a false rape allegation. Using section 208, the State presented this evidence in court, resulting in the accused being convicted and sentenced to life imprisonment. While the State cannot be blamed for fulfilling its constitutional responsibilities impartially, the Shezi case illustrates how a deliberately fabricated rape accusation can result in a wrongful conviction[16]
Shezi’s exoneration was not determined by the court’s original verdict. The truth only came to light after the death of the mother, who had orchestrated the false accusation, when the alleged victim admitted that she had never been raped by her father and that her mother had instructed her on how to support the fabricated claim. By that time, Shezi had already served 10 years of his life sentence, and he would have remained in prison had the confession not been made[17].
Conclusion
The dissertation does not challenge section 208, though it identifies this as a potential area for future research. Instead, it highlights how false accusations can result in wrongful convictions and prolonged imprisonment. While South African law is designed to protect the public interest, Shezi’s matter shows how some individuals exploit legal protections for personal agendas. This also demonstrates how easily a person’s reputation can be destroyed, causing severe social and psychological harm, sometimes even leading to suicide for the accused.
Recommendations
Is establishing a compensation statute in South Africa practical?
The Road Accident Fund Act (RAF Act), as amended by the Road Accident Fund Amendment Act (RAFA), provides a precedent for statutory compensation in the country. Under this framework, victims of road accidents receive general damages for pain and suffering, as well as special damages covering medical expenses, past and future loss of income, and other financial losses[18]. Drawing a parallel between the harms experienced by RAF victims and those falsely accused or wrongfully convicted due to state liability, this dissertation proposes the creation of a similar statutory fund and governing body to address injustices arising from wrongful convictions. Experience from international and foreign jurisdictions shows that domestic statutory compensation laws for wrongful convictions can effectively fill gaps left by civil remedies.
Conclusion
As a third-year law student in Stadio Higher Education, in my opinion, false allegations of rape generally fall into a few clear categories. They may involve reporting a sexual assault that never happened, claiming that a consensual encounter was actually forced, or accusing a specific person even though the accuser knows someone else was responsible. In each of these situations, the allegation misrepresents what actually occurred. When a consensual sexual encounter is later portrayed as rape, the consequences for the accused are severe.
Once such an allegation is made, the individual may experience immediate damage to their reputation, tension in personal relationships, and significant psychological pressure. Even if the accused is later acquitted or the charges are withdrawn, the social effects often remain. These may include harm to career opportunities, continued suspicion from the community, and lasting emotional distress that persists well beyond the end of the legal proceedings.
Section 9 of the Justice of the Peace and Commissioners of Oaths Act explains that a false statement occurs when a person knowingly makes an untrue statement in an affidavit, affirmation, or solemn declaration before someone who is legally authorized to administer an oath or take such a declaration. If the person is aware that the statement is false and still makes it, they commit an offence and, upon conviction, may face the legal penalties associated with perjury[19]
Bibliography
Primary Sources
- Mahlangu and Another v Minister of Police (CCT 88/20) [2021] ZACC 10; 2021 (7) BCLR 698 (CC); 2021 (2) SACR 595 (CC) (14 May 2021).
Statutes
- Criminal Procedure Act 51 of 1977.
- Constitution of the Republic of South Africa Act 108 of 1996.
- Road Accident Fund Act 56 of 1996.
- Justice of the Peace and Commissioners of Oaths Act 16 0f 1963.
Secondary Sources
- Buda, C. SAPS records over 4,000 wrongful arrests, faces R 2 billion in claims. IOL News.2025. https://iol.co.za/news/politics/2024-09-10-saps-records-over-4000-wrongful-arrests-faces-r2-billion-in-claims/ [Accessed 12 March 2026]
- Novak, G.South Africa Rape Statistics: Market Data Report. Worldmetrics. 2026. https://worldmetrics.org/south-africa-rape-statistics/ [Accessed 12March 2026]
- Kloren, S. The devastating impact of false sexual assault allegations in South African schools. Independent Media. 14 April 2026. https://thestar.co.za/news/education/schools/2025-03-14-the-devastating-impact-of-false-allegations-of-sexual-assault-in-south-african-schools/ [Accessed 12 March]
- ‘How does the criminal justice system work?’. Government of South Africa.2026. https://www.gov.za/faq/justice-and-crime-prevention/how-does-criminal-justice-system-work [Accessed 12 March]
- Geldenhuys K. False allegations- the forgotten victims. 1 February 2018 https://hdl.handle.net/10520/EJC-c4c691397 [Accessed 13 March]
[1] Buda, C, 2025, IOL. at SAPS records over 4,000 wrongful arrests, faces R2 billion in claims
[2] Buda, C, 2025, IOL. at SAPS records over 4,000 wrongful arrests, faces R2 billion in claims
[3] Novak, G. Worldmetrics. at South Africa Rape Statistics: Market Data Report 2026
[4] Kloren S, 2026. Independent Media. at The devastating impact of false sexual assault allegations in South African schools
[5] Kloren S, 2026. Independent Media. at The devastating impact of false sexual assault allegations in South African schools
[6] Act 51 of 1977.
[7] ‘How does the criminal justice system work?’ available at How does the criminal justice system work? | South African Government
[8] Chapter 2 of the Constitutional Act 108 of 1996
[9] Section 34 of the Constitution of the Republic of South Africa.
[10] ”According to section 1(a) of the Constitution ‘the Republic of South Africa is one, sovereign state founded on the following values’ comprising, ‘human dignity, the achievement of equality and the advancement of human rights and freedoms’
[11] Chapter 14 of the Constitution of the Republic of South Africa,1996, International Agreements.
[12] Chapter 14 of the Constitution of Republic of South Africa, 1996. Customary International Law.
[13] Chapter 14 of the Constitution of the Republic of South Africa, 1996, Application of international law.
[14] Mahlangu and Another v Minister of Police (CCT 88/20) [2021] ZACC 10; 2021 (7) BCLR 698 (CC); 2021 (2) SACR 595 (CC) (14 May 2021)
[15] Act 51 of 1977.
[16] Geldenhuys K, 2018. False allegations- the forgotten victims, at https://hdl.handle.net/10520/EJC-c4c691397
[17] Geldenhuys K, 2018. False allegations- the forgotten victims, at https://hdl.handle.net/10520/EJC-c4c691397
[18] Act 56 of 1996
[19] Act 16 0f 1963
