The woman tested negative for HIV, despite the fact that her rapist, Mpumelelo Thami Mazibuko, admitted he was HIV positive and on anti-retroviral treatment.
She was raped after leaving her baby at home and spending the night bar-hopping with her cousin.
A Benoni magistrate in 2012 sentenced Mazibuko, 36, to life and six years imprisonment on the charges.
The court rejected his claim that intercourse had been consensual and that it took place after he and the victim had agreed he would pay her R100.
The court also rejected his claim that she had laid the rape charge because he had confronted her for stealing his money when he stepped out of the room after their first sexual encounter.
Acting North Gauteng High Court Judge Tintswalo Makhubele and Judge Bert Bam this week ruled the magistrate had erred by only considering if being HIV positive constituted substantial and compelling circumstances, and failing to even consider the circumstances under which the offence had been committed.
They said it was common cause that alcohol had played a role in the rape, with the complainant and her cousin traveling from one tavern to the next during the course of the night.
She and her cousin had accompanied Mazibuko to his house in the early morning hours so that he could get a jersey before mo-ving to another tavern.
The victim afterwards tested HIV negative and a doctor’s report could not find conclusive evidence of forceful penetration, although there was evidence of an assault.
The victim initially lied to her sibling about how she had sustained her injuries and claimed she had lost her shoes after being attacked by thugs.
She first consulted a “doctor Omar from Africa” for mediation “to cleanse her blood” because she was breastfeeding, upon which she was advised to quit drinking.
She only went to the police after her grandmother threatened to do so and nurses who tested her for HIV insisted she report it.
Judge Makhubele said this illustrated the rape had no impact on the complainant.