Brief Summary

Criminal Law — Rape — Evidence of complainant — Accused charged with raping a nine-year-old girl — Complainant testified to being sexually penetrated by the accused, who was a family friend — Accused denied the allegations, claiming no sexual contact occurred — Court assessed the credibility of the complainant's testimony, which was corroborated by her sister's observations and medical evidence indicating trauma — Conviction upheld based on the compelling evidence presented, despite inconsistencies in the sister's testimony.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were a criminal trial in the High Court of South Africa, Eastern Cape Division, Gqeberha, in which the accused, Xolani Nkewu, stood trial on a charge of rape.

The parties were the State as prosecutor and Mr Nkewu as the accused. The complainant was a nine-year-old girl (referred to in the judgment as “S”), and key factual witnesses included the complainant’s sister (“O”) and mother (“N”), together with a forensic nurse.

The procedural history included that Mr Nkewu pleaded not guilty. During the proceedings the charge was formally amended in terms of section 86 of the Criminal Procedure Act 51 of 1977 to substitute the word “genital organs” for “vagina”, and the trial proceeded on the amended charge in terms of section 86(3). The complainant’s age on the charge sheet was also corrected before the close of argument.

The general subject-matter of the dispute concerned whether Mr Nkewu, after arriving intoxicated at N’s home during the night of 26 October 2020, unlawfully and intentionally sexually penetrated the complainant without consent, and whether the State proved penetration and identity of the perpetrator beyond reasonable doubt on evidence that substantially depended on the complainant’s testimony as a single child witness, supported by surrounding circumstances and medical findings.

Material Facts

It was common cause that Mr Nkewu visited the home of the complainant and her mother on the night in question. It was also common cause that he had been consuming alcohol from earlier that afternoon, and that the complainant was taken to Dora Nginza Hospital for medical examination on 26 October 2020.

The State’s version, accepted by the court on the material points, was that Mr Nkewu arrived at the home late at night or in the early hours and conversed with N for a period (the court ultimately accepted a discussion of approximately 45 minutes occurring either in the lounge, the other bedroom, or both). Mr Nkewu then fell asleep on a couch in the lounge, and N left him sleeping there while she slept in another room. The complainant and her sister were sleeping in the main bedroom.

On the complainant’s evidence, Mr Nkewu later entered the main bedroom in darkness, instructed her to climb onto him, and when she resisted he pulled her onto him. She described that he removed her panties, lowered his own clothing, and moved her up and down while holding her, during which he inserted his penis into her genital area, causing pain in her genital area and lower stomach. She started crying, and O woke up and saw S on top of Mr Nkewu. The two children went to alert their mother. The complainant’s evidence included that her panties were thrown onto the floor after being removed.

N’s evidence, accepted by the court as reliable on the central sequence, was that she was woken by O, was told that S was crying and that Mr Nkewu was implicated, and then went to the main bedroom. After turning on the light, she found Mr Nkewu asleep on the bed in the main bedroom, with his pants and underpants lowered towards his ankles. She pulled him off the bed, after which a confrontation and assault occurred, continuing outside. The police were called and the community became involved. The court accepted that, at this stage, Mr Nkewu was found in the main bedroom in circumstances consistent with his having been there during the incident.

O’s evidence was treated by the court as materially unreliable in several respects, due to contradictions and difficulty distinguishing what she actually saw from what she later heard or inferred. However, the court accepted limited aspects of her testimony, including that she was awoken by the complainant crying and saw the complainant on top of Mr Nkewu, and that their mother was alerted and proceeded to the main bedroom where Mr Nkewu was found.

The medical evidence, led through a forensic nurse (Mr Mtini) by reference to an admitted medical report, recorded that the complainant was pre-pubertal, with a small cut at the posterior fourchette and bruising described as very sensitive to touch on internal aspects of the labia. The report concluded that the injuries observed were consistent with sexual penetration or an attempt. A DNA test detected no semen, and the hymen was recorded as intact; the nurse explained that he did not conduct internal examination beyond what was clinically appropriate for a child of that age.

The accused’s version was a denial that he raped the complainant. He testified that he arrived earlier in the evening, spoke to N while she lay in the main bedroom (without entering it), and fell asleep on the couch, later waking to be assaulted and accused. He asserted he never entered the main bedroom and suggested the complaint was fabricated due to N’s alleged bitterness. The court found his account internally inconsistent, not properly put in cross-examination, improbable when assessed against common-cause aspects and the accepted evidence, and ultimately not reasonably possibly true.

Legal Issues

The central legal questions were whether the State proved beyond reasonable doubt that Mr Nkewu committed rape, specifically whether he unlawfully and intentionally committed an act of sexual penetration with the complainant without consent, and whether the evidence established penetration as defined in the applicable statute.

A further central issue was evidentiary: whether the court could safely convict on the complainant’s testimony given that she was a young child and effectively a single witness to the act of penetration, and how her evidence should be assessed under the cautionary approach applicable to young witnesses and to single-witness testimony.

The dispute involved a combination of fact (what occurred in the bedroom, whether the accused was present, what physical acts occurred), the application of law to fact (whether the proved conduct met the statutory definition of sexual penetration and rape), and an evaluative assessment of credibility and probabilities (including whether the accused’s version could reasonably possibly be true).

Court’s Reasoning

The court began by setting out the relevant statutory framework for rape, emphasising that rape is committed where a person unlawfully and intentionally commits an act of sexual penetration without consent. The court applied the definition of sexual penetration under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, noting that it includes penetration “to any extent whatsoever” by the genital organs of one person into or beyond the genital organs of another, and that “genital organs” is broadly defined.

In evaluating the evidence, the court applied the principles governing conviction on the evidence of a single witness under section 208 of the Criminal Procedure Act 51 of 1977, and the cautionary approach applicable to young child witnesses, drawing on the authorities cited. The court noted that there is no fixed corroboration rule, but that the evidence of young children must be scrutinised carefully, and that the exercise of caution must not displace common sense.

The court conducted a credibility and probability assessment across the evidence as a whole, adopting the holistic approach articulated in S v Chabalala 2003 (1) SACR 134 (SCA). It weighed the elements pointing towards guilt against those indicative of innocence, taking account of strengths, weaknesses, probabilities and improbabilities.

On credibility, the court found that N made a favourable impression as a witness and was clear, forthright, and willing to concede potential mistakes. The court accepted the central aspects of her evidence, including that Mr Nkewu was left asleep on the couch and later found asleep in the main bedroom with his clothing lowered, and that the confrontation followed.

The court treated O as an unreliable witness due to contradictions and imaginative or confused detail. Nevertheless, it accepted limited corroborative features from her evidence, particularly that she observed S crying and on top of Mr Nkewu and that N was alerted and proceeded to the main bedroom where the accused was found. The court also accepted that O’s evidence supported intoxication, which was admitted by the accused.

The complainant S was recognised as both a young child and a single witness to the rape, necessitating caution “bordering on suspicion”. Despite that caution, the court found S’s evidence clear on the material aspects, noting her ability to understand questions (with intermediary and interpreter assistance), to recall and describe key events, and to demonstrate the described positioning and movement with dolls. The court regarded minor discrepancies between her testimony and her police statement as the kind of shortcomings that could be expected from a young witness describing a traumatic incident long after the event, and not destructive of reliability on the essentials.

The court identified corroboration for S’s version in the surrounding circumstances and medical evidence. It considered particularly significant that N found the accused in the main bedroom with his pants and underpants lowered, and that the medical findings recorded a cut and bruising in the genital area consistent with penetration or an attempt. The court accepted the forensic nurse’s evidence that the bruising required application of force and was consistent with penetration by a penis into the complainant’s genital organs. The absence of semen on DNA testing was treated as non-determinative.

The accused’s evidence was assessed as offering little beyond a bare denial, and as containing important assertions that were not put to State witnesses, alongside improbabilities and inconsistency. The court rejected as improbable the suggestion that the allegations were fabricated by N, including the implication that she could rapidly convince two young children to concoct a rape allegation in the context of their apparently good relationship with the accused and their excitement on his arrival. The court also treated the accused’s narrative about where the conversation occurred and where the children slept as inconsistent with the case advanced in cross-examination and with photographic evidence, concluding that his version was materially unreliable.

On the legal requirement of penetration, the court emphasised that “full penetration” is not required and that the slightest penetration meeting the statutory definition is sufficient for rape. The court distinguished the circumstances from MM v S [2012] ZASCA 5, because in this case the complainant’s testimony was that insertion occurred, and there was medical testimony explaining the injuries and their consistency with penetration. The court accepted that the complainant’s evidence established penetration of her genital organs to the necessary extent and that the medical findings were consistent with this, concluding that the only reasonable inference was that sexual penetration occurred as defined.

Having applied the beyond reasonable doubt standard, and having rejected the accused’s version as not reasonably possibly true, the court concluded that the State proved that Mr Nkewu unlawfully and intentionally committed an act of sexual penetration with the complainant without consent.

Outcome and Relief

The court found Mr Nkewu guilty of rape as charged (on the amended charge referring to penetration of the complainant’s genital organs).

The relief granted was a conviction. The judgment excerpt did not record any separate order as to sentence or costs, and no costs order was made as part of the conviction order in the portion provided.

Cases Cited

S v Manda 1951 (3) SA 158 (A).

S v Artman and Another 1968 (3) SA 339.

S v Weber 1971 (3) SA 754 (A).

R v Bellingham 1955 (2) SA 566 (A).

R v Nhlapo 1955 (3) SA 290 (A).

S v Sauls and Others [1981] 4 All SA 182 (A).

R v Abdoorham 1954 (3) SA 163 (N).

S v Van Aswegen [2001] JOL 8267 (SCA).

S v Van der Meyden 1999 (2) SA 79 (W).

S v Shackell 2001 (2) SACR 194 (SCA).

S v Guess [1976] 4 All SA 534 (A).

S v Singh 1975 (1) SA 227 (N).

S v Chabalala 2003 (1) SACR 134 (SCA).

S v Dlamini 2019 (1) SACR 467 (KZP).

Vilakazi and Another v The State [2021] ZAGPPHC 479.

MM v S [2012] ZASCA 5.

Vilakazi and Another v The State (Unreported Gauteng Division, Pretoria, case no A177/2017).

Mtyala v The State (Unreported Gauteng Division, Pretoria, case no A183/14).

S v F 1990 (1) SACR 238 (A).

S v Hadebe 1998 (1) SACT 422 (SCA).

Van Heerden v S (Unreported Free State Division, Bloemfontein, case no A131/2019).

Seedat v S [2016] ZASCA 153.

Legislation Cited

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, section 1 and section 3.

Criminal Procedure Act 51 of 1977, section 86, section 86(3), and section 208.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the State proved beyond reasonable doubt that the accused unlawfully and intentionally committed an act of sexual penetration, as defined in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, with the complainant, a nine-year-old child, without consent.

The court accepted the complainant’s evidence as truthful and reliable despite her tender age and her status as a single witness, applying the required caution and evaluating her evidence holistically against the surrounding circumstances and medical findings. The medical evidence of a cut and bruising in the genital area, consistent with penetration or an attempt, together with the circumstances in which the accused was found in the main bedroom with lowered clothing, supported the complainant’s account.

The court rejected the accused’s version as improbable and not reasonably possibly true, finding that it shifted, contained material assertions not put to State witnesses, and could not be reconciled with the probabilities and accepted evidence. The absence of semen on DNA testing did not create a reasonable doubt in the face of the totality of the evidence.

LEGAL PRINCIPLES

The judgment applied the principle that rape is established where there is unlawful and intentional sexual penetration without consent, and that the statutory definition of sexual penetration requires penetration to any extent whatsoever, meaning that “full penetration” is not a requirement for conviction.

The judgment applied the approach to the evidence of a young child witness, emphasising that such evidence must be treated with caution due to inherent risks such as suggestibility and imaginativeness, but that there is no fixed corroboration rule and each case must be assessed on its own merits with careful scrutiny.

The judgment applied section 208 of the Criminal Procedure Act 51 of 1977, confirming that an accused may be convicted on the single evidence of a competent witness, provided that the court is satisfied beyond reasonable doubt of the truth of that evidence after weighing its merits and demerits, and that minor contradictions do not automatically preclude conviction.

The judgment applied the criminal standard of proof that an accused must be acquitted if it is reasonably possible that the accused might be innocent, and that a defence version may be rejected only if it is not reasonably possibly true when assessed against the totality of evidence and probabilities.

The judgment applied the holistic method of evaluation associated with S v Chabalala 2003 (1) SACR 134 (SCA), requiring that all elements pointing to guilt and innocence be weighed together, with due regard to probabilities, improbabilities, and common sense.

S v Nkewu (42/2021) [2022] ZAECPEHC 12 (29 July 2022)