S v Pepping (CC03/2021) [2023] ZAECMHC 2 (27 January 2023)

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[2023] ZAECMHC 2
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S v Pepping (CC03/2021) [2023] ZAECMHC 2 (27 January 2023)

SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Reportable
Case
no: CC03/2021
Date
heard: 19/07/2022
20/07/2022
22/07/2022
25/07/2022
27/07/2022
28/07/2022
29/07/2022
14/11/2022
15/11/2022
17/11/2022
Date
delivered: 27/01/2023
In
the matter between:
THE
STATE
and
LOUIS
PEPPING

ACCUSED
JUDGMENT
Notyesi
AJ
Introduction
[1]
Rape
is ‘a very serious offence, constituting as it does a
humiliating, degrading and brutal invasion of the privacy, the

dignity and the person of the victim. The rights to dignity, to
privacy and the integrity of every person are basic to the ethos
of
the Constitution and to any defensible civilisation’.
[1]
‘Rape is a serious offence. It is, in and of itself, a deeply
destructive and dehumanising act. This crime is an inescapable
and
seemingly ever-present reality and scourge on the nation and the
collective conscience of the people of South Africa’.
[2]
[2]
However, when a court is confronted with a case involving rape, a
court
should not overlook the right to innocence until proven guilty
as well as the requirement that the charge of rape must be proven

beyond reasonable doubt. In such circumstances, it is incumbent upon
the State to adduce evidence which proves beyond reasonable
doubt
that the accused is guilty, as failure to do so must benefit the
accused, for he does not have to prove his innocence.
[3]
In view of these competing principles, the court must assess the
evidence
objectively to ensure that justice is carried out, be it
justice for the complainant or justice for the accused. The court
must
decide whether the party who bears the onus has discharged such
onus and whether the constitutional rights of the accused has been

given effect, in each stage, prior and during the trial.
[4]
The essence of the case are the allegations pertaining to the rape of
a six year old child of N[…] A[…] Area near M[…],
L[…]. Mr Pepping is alleged to be the person who raped
the six
year old and he, on the other hand, disputes such allegations. This
Court will evaluate the entire evidence before it reaches
a
conclusion.
[5]
For purposes of this judgment, the child shall be referred to as ‘the

complainant’ and Mr Pepping shall be referred to as ‘the
accused’. At the outset, it is important to clarify
or define
some of the witnesses to avoid a confusion. The complainant has a
great grandmother and a grandmother who have both testified
during
the proceedings. For the sake of convenience, the great grandmother
of the complainant is referred to as ‘M[…]’
and
the grandmother is simply referred to as ‘grandmother’.
The
particulars of the charge
[6]
The charge reads:
‘
The
accused is guilty of the crime of rape in contravention of Section 3
read with Section 1, 56(1), 58, 59 and 60 of the Criminal
Law Sexual
Offences and Related Matters Amendment Act 32/2007:
IN
THAT upon/or about the 1
st
of September 2019 and at/or
near N[...] A[...] A[...] near M[...], L[...] in the district of
L[...], the accused did unlawfully
and intentionally commit an act of
sexual penetration with “OP” (the complainant), a 6 year
old girl, by having sexual
intercourse with her without her consent
and did rape her.’
[7]
In the case
of conviction, the State requests the Court to invoke the provisions
of
sections 51(1)
and
51
(2) of the
Criminal Law Amendment Act 105 of
1997
[3]
respectively and to
consider imposing the minimum sentence of life imprisonment as
prescribed in the aforesaid sections. At the
commencement of the
trial, this Court advised the accused about the provisions relating
to minimum sentencing. The accused confirmed
that he was aware of the
minimum sentences and that in the case of conviction, he would need
to show that substantial and compelling
circumstances exist which
would justify a lesser sentence.
Mr
Kekana
,
counsel for the accused, also confirmed that he had advised the
accused about the provisions of the Act and that he was satisfied

that the answers proffered by the accused were in accordance with his
instructions insofar as the accused is made aware about the

provisions relating to minimum sentencing.
[8]
When the charges were put to the accused, he pleaded ‘not
guilty’
and invoked his rights to remain silent. He did not
give a plea explanation. Consequent to the plea of ‘not
guilty’,
the State opened its case and several witnesses were
called to testify on behalf of the State. The accused also testified
in his
defence based on a plea of ‘not guilty’.
[9]
This Court is indebted to both counsel for the State and the accused.
They prepared extensive heads of argument which were most helpful in
the preparation of this judgment. More than 20 witnesses have

testified in these proceedings. The hearing of evidence commenced on
19 July 2022 and thereafter evidence was heard over a period
of
approximately five months.
[10]
The delays in these proceedings were caused mainly by administrative
challenges, such as
the court machines not working, or the equipment
for intermediary not available; and at times, the correctional
services were responsible
for the delays by failing to bring the
accused before court for reasons that they have no vehicles
available. This court was shocked
to hear that there are only two
vehicles at the Mthatha Prison Centre and that those two vehicles are
servicing the entire area
covering the jurisdiction of this court.
This court, at times, had to issue orders calling upon the head of
prison to appear in
court and explain the absence of the accused.
[11]
This state of affairs is shocking and undesirable. For this reason, a
copy of this judgment
shall be sent to the Minister of Justice and
Correctional Services for his attention in relation to the state of
affairs in the
Mthatha Prison Centre. The proper functioning of the
courts and the efficient administration of justice, stands at a risk
of being
compromised in circumstances where the Department of
Correctional Service is failing to provide sufficient assistance and
co-operation.
The minister needs to investigate the reasons why the
Mthatha Prison Centre does not have sufficient transport for
prisoners who
need to attend court. I have found this state of
affairs extremely disturbing. On 17 November 2022, the deputy
director at the
Mthatha Correctional Centre, Mr Vuyisile Thembile,
was called upon to appear before this court and he confirmed the
allegations
relating to lack of vehicles. That was the reason why the
accused was often not brought before court, either on time or at all.

I have brought this challenge to the attention of the Judge President
of this division. This court can only hope that solutions
will be
found.
The
trial
The
State’s case
[12]
The complainant had testified that on 1 September 2019, being the
date of the incident,
she was at her home with V[...] P[...] and her
uncle, Y[...]. The grandmother, M[...], had attended church. At about
16h00, her
uncle, Y[...], sent her to a spaza shop in order to buy
chips for him. On her way to the shop, she met an unknown man.
[13]
The unknown man approached her, asking that she should come to him.
She refused. The unknown
man started promising to give her eggs,
sweets, naartjies and money should she come to him. She refused. The
unknown man sought
to snatch her. At that time, the complainant
realised that she was in trouble and danger. She ran away. This
unknown man chased
her as she was running. He caught up with her
after giving chase and outrunning her.
[14]
Upon catching the complainant, he grabbed her and lifted her onto his
shoulders. The complainant
was taken to a certain homestead by this
unknown man. The complainant did not know the homestead to which she
was taken. Upon entering
to a room in this homestead, the unknown man
threw the complainant on the bed. He locked the door to the room. The
man undressed
the complainant by taking off her pants and the
underwear. Throughout this period, the complainant was trying to
resist and pleading
with the man to stop what he was doing. According
to the complainant, despite such pleas, the man aggressively
persisted with what
he was doing. The complainant’s resistance
was overcome by the man.
[15]
The complainant testified that once the man had overcome her, he then
took his ‘urinating
thing’ and inserted into the
complainant’s ‘urinating thing’. The man was
undressed too, at this stage.
The complainant testified that as the
man was inserting his ‘urinating thing’ to her ‘urinating
thing’,
she felt heavy pains. She testified that her private
parts were paining throughout as the man was inserting his private
parts into
her. According to the complainant, the man, after
inserting his private parts to her, started moving his body up and
down on top
of the complainant. The complainant had been forced by
the man to lay on her back on the bed. She unsuccessfully tried to
stop
the man, but he refused and instead, ordered her to keep quiet.
He promised that he would make eggs and give her money. The
complainant
felt pain throughout this ordeal.
[16]
The complainant testified that whilst the unknown man was proceeding
with his acts of inserting
his private parts or ‘urinating
thing’ to her private parts or ‘urinating thing’, a
knock was heard. A
person was knocking at the door and he then peeped
through the window. She was unable to see this person who was
knocking. As this
person was knocking at the door, he shouted the
name of Papa. He was saying ‘Papa, vula!’ which simply
means ‘Papa,
open’. It was at that stage that the
complainant learned the name of her attacker as Papa. The man who was
knocking kicked
the door open. It was at this stage that the
complainant found an opportunity to escape, because when there was
the knock at the
door, the unknown man had stopped what he was doing
to the complainant.
[17]
The complainant dressed herself and left the place once the door was
kicked open. The complainant
testified that she did not notice
whether the man who had kicked the door open saw her and she too did
not identify that person.
She only found an opportunity to escape
from the ordeal. At the time when the complainant was getting off the
bed and dressing
herself, she noticed blood flowing in between her
legs from her vagina. There was also blood on the sheet that she had
laid on
with the unknown man.
[18]
On her way back home, she met up with her sister, V[...] P[...], also
known as O[...].
O[...] observed blood stains from the clothes of the
complainant and that she was crying. She enquired about what had
happened.
The complainant informed O[...] that she had just been
raped by a man called Papa. O[...] took the complainant, held and
comforted
her. O[...] took the complainant to a nearby homestead.
O[...] also called M[...], who was not far away.
[19]
The complainant was taken by O[...] to the homestead of L[...]
P[...], which was a nearby
homestead. M[...], who had been called by
O[...], also joined.
[20]
Upon arrival at L[...] P[...]’s homestead, the complainant was
asked what had happened
to her. She was also inspected and checked by
M[...]. The complainant was asked to lay on her back on a mattress.
She was then
asked to open her legs for inspection. Although the
complainant laid on her back on the mattress, she was resisting to
open her
legs. The complainant testified that it was painful at the
time. According to the complainant, she reported to both M[...] and
O[...] and L[...] P[...] that she had been raped by a person called
Papa. According to the complainant, upon her report that she
had been
raped by Papa, O[...], L[...] and community members, who had been
called by O[...], L[...] and M[...], agreed to approach
Papa at his
place. L[...] P[...] and other community members knew who Papa was
and the place where he lived. The complainant had
testified that her
uncles also took sticks and went to Papa’s homestead. Only
M[...] and the complainant remained behind.
[21]
At a later stage, the complainant, together with M[...], were called
to Papa’s place
in order for the complainant to point or
confirm whether Papa was the same man that had been caught up by her
siblings and the
community. On her arrival at Papa’s place, she
was asked to point the person who had raped her. The complainant
pointed the
accused person who is known as Papa. According to the
complainant, Papa was assaulted by her relatives and the community
members.
The complainant testified that the assault of Papa was
stopped by the sub-headman. The sub-headman had ordered that the
accused
should not be assaulted and that the police would be called.
The police indeed were called. The complainant was taken by her
grandmother
to hospital. She was examined by medical staff and nurses
at the hospital. The complainant testified that she was placed on
medication
since she experienced pain from her private parts.
[22]
The complainant further testified that she was further admitted to
Nelson Mandela
Academic Hospital and remained thereat for some
time. She could not remember the date of her discharge.
[23]
During the proceedings, the complainant was asked by the counsel for
the State to point
out her attacker. She pointed the accused, Mr
Pepping and identified him as her attacker.
[24]
During these proceedings, the complainant was shown photo-albums.
Exhibit ‘A’
contains photographs of the aerial view
of the accused’s home and the surrounding area. Exhibit ‘D’
contains
the photo-album reflecting the outside and inside of the
accused’s home. The bed and the sheet in the accused’s
room
is also reflected. These are not aerial view photographs. They
therefore constitute admissions insofar as they reflect the accused’s

home, inside and outside. The photo-albums were admitted by consent
as exhibits ‘A’ and ‘D’ in the proceedings.

The photographs contained in the album under exhibit ‘D’
were confirmed to be the house of the accused. There was no
dispute
about exhibit ‘A’ and ‘D’. When the
complainant was shown the photographs, she identified the home,
as
the home where she was allegedly raped. She identified the sheet on
top of the bed in the room where she was allegedly raped.
She
recognised what appeared to be blood stains on the sheet.
[25]
The complainant was cross-examined. During her cross-examination, she
was criticised for
the reason that she did not cry on being chased by
an unknown man. The counsel’s suggestion was that she should
have cried,
and, that she did not, was indicative of a fact that she
was never chased. In her response to this criticism, she explained
that
she did not cry because there was no-one who was going to hear
her cry and that there were no persons within the vicinity.
[26]
The other criticism against the complainant’s evidence was that
the person who had
knocked at the door and also peeped through the
window, was not suggested by other witnesses and that there was no
evidence about
that person at all. The complainant’s response
in this regard, was that a person knocked at the door and when
knocking, shouted
the name Papa. She maintained her version in this
regard.
[27]
The next witness was M[...] P[...], a 72-year-old woman and the
great grandmother
of the complainant. Essentially, M[...]
confirmed the report of the complainant relating to her rape.
M[...]’s evidence is
that on 1 September 2019, she had
attended church. On her arrival back home, she found O[...], Y[...]
and other children at
her home. She heard that the complainant had
gone to the shop to buy some snacks for Y[...] P[...].
[28]
At approximately 17h00, she noticed that the complainant had not
returned home. She started
to panic and at that stage decided to
instruct O[...] to go and look for the complainant. According to the
witness, it was becoming
dark. Indeed, O[...] left to look for the
complainant. She had also instructed Y[...] to go and look for the
complainant. M[...]
also decided to go and look for the complainant,
since O[...] was also not coming back and it was becoming more dark.
As she was
about to cross a street leading to the neighbour’s
place, she saw O[...] and the complainant approaching. At that time,
O[...]
was holding the complainant’s hand. During this stage,
O[...] called her and said that there was a problem with the
complainant.
She must come to them.
[29]
Indeed, she approached them. On her arrival to them, she noticed
blood running down the
legs of the complainant. She was shocked and
sought to establish what had happened. She was informed that the
complainant had been
raped. At the time, the complainant was wearing
a navy coloured tight. They proceeded to a nearby homestead. On
arrival at this
home, she inspected the complainant. She first caused
her to lay down on her back on a mattress. The complainant had
reported to
her that she had been raped by an old man called Papa.
The complainant explained that she only learned the name when it was
shouted
by a person who was knocking at the door of the room in which
she was raped. M[...] requested that her daughter, who is the
grandmother
of the complainant, should be called and informed about
the incident and be requested to come over. The grandmother of the
complainant
is N[...] S[...].
[30]
M[...] testified that N[...], L[...], O[...], Y[...] and all other
persons who had arrived
to the place, decided to proceed to Papa’s
place for making enquiries. She and the complainant remained behind,
because the
complainant was weak and she too was still in shock and
weak. At a later stage, they were called to Papa’s home. When
she
arrived with the complainant, the complainant was asked to
identify her attacker. She identified the accused. The police were
called
and they arrived. The angry community members wanted to go
inside the room of Papa, however the police refused. The witness
confirmed
that the accused was assaulted by members of the community,
although, the police stopped the assault and arrested the accused.
[31]
The witness was cross-examined. The evidence of M[...] was straight
forward and she did
not contradict herself. During cross examination,
M[...] was asked whether she had known the accused person before the
date of
the incident. She responded as follows:
Q:
Mrs P[...], how long had you known the accused before Court in
relation to the day
of the incident?
A:
I did not know him. I had just arrived in that locality. I had not
even finished a
year being there.
[32]
The essence of the cross-examination of M[...] was to put the version
of the accused in
terms of which he deny that he raped the
complainant. M[...] maintained her version that she received a
report.
[33]
The next witness was N[...] S[...], the grandmother of the
complainant. She testified that
on 1 September 2019, she received a
call shortly after 18h00. She was informed that the complainant had
been raped. According to
this witness, the call was from A[...].
A[...] is the child of the witness.
[34]
On the basis of that call, she rushed to N[...] A[...] A[...], which
is the place where
the incident occurred. She attended to the scene
and found the complainant with N[...]. She had blood stains and even
the small
blanket that she had wrapped around her was having blood.
On her arrival, she took the complainant from N[...]. She took the
complainant
to hospital because she could see that the complainant
was collapsing. On the way to hospital, she was with L[...] and the
driver
of the vehicle. On arrival at the hospital, she registered the
complainant in order to get a card and they were told to attend to

Thuthuzela Centre.
[35]
On arrival at Thuthuzela Centre, the complainant was examined and the
nurses observed that
she had been ruptured and there was even flesh
protruding out. The doctor examined the child and she was given
medication. The
police also arrived and requested the panty of the
complainant and the police officers took the panty. After receiving
medication,
the complainant and her were asked to come back the
following day. On the following day, indeed they returned to
Thuthuzela Centre.
On this day, the complainant was referred to
Nelson Mandela Academic Hospital where she was ultimately admitted.
[36]
This witness was not cross-examined and therefore, her evidence is
common cause in these
proceedings.
[37]
The next witness was V[...] P[...], a 15-year-old female. The other
name of V[...] is ‘O[...]
P[...]’. She has been referred
by other witnesses as ‘
O[...]’
. She testified that
on the date of the incident, 1 September 2019, she was at home with
the complainant and Y[...] P[...], who
is their uncle. The
complainant is a niece to the witness. There were other children at
home, Z[...] and L[...]. The grandmother,
M[...], was not at home as
she had attended church during that time.
[38]
At approximately 17h00, the uncle, Y[...] P[...], sent the
complainant to go and buy him
some chips from the shop. Indeed, the
complainant left for the shop to buy the chips for the uncle. The
witness and other children
remained at home. A long period of time
passed by with the complainant not returning home. The grandmother,
who had since returned
from the church, panicked. She requested the
witness to go and look for the complainant. Indeed, the witness went
out to look for
the complainant.
[39]
As the witness was looking for the complainant, she saw her on the
road next to the house
where she had gone to buy the chips. The
complainant appeared to be walking slowly. On meeting with the
complainant, the witness
observed that she was shivering and nervous.
She asked her why she took so long to return home.
[40]
The complainant informed the witness that she was taken by a certain
old man to his house,
where she was raped. The unknown man had
promised the complainant to give her eggs and money. The old man had
instructed her to
take off her clothes and when the complainant
refused, he forcefully undressed her. Pursuant to the old man
undressing the complainant,
he also undressed himself, forced the
complainant to lay on the bed and thereafter took his penis and
inserted it in her vagina.
The complainant informed the witness that
she was raped by this unknown man.
[41]
The complainant, according to the witness, was bleeding from her
private parts. The witness
inspected the complainant and noticed the
blood coming from the complainant’s vagina, down her legs.
After talking to the
complainant, the witness saw the grandmother,
M[...], and she called her and informed her that there was a problem
with the complainant.
She requested her to join them. Indeed, M[...]
joined them. M[...] was informed that the complainant had been raped
and that she
had blood in between her legs. M[...] inspected the
complainant. The complainant had informed the witness and M[...] that
the name
of the man who had raped her was Papa. The complainant
explained that she heard that name when there was a person who was
knocking
at the door. That person had shouted the name Papa, whilst
knocking at the door.
[42]
The witness and M[...] went to a neighbouring homestead with the
complainant. They found
L[...] P[...] in that homestead. The uncle of
the complainant, Y[...] P[...], had also been called, as well as
other neighbours.
Again, the complainant repeated her report that she
had been raped by a person with the name of Papa. Those present, knew
Papa
and where he lived. The witness, L[...] and the other persons
proceeded to Papa’s place, leaving M[...] and the complainant.

Before the group left for Papa’s place, the witness, L[...] and
N[...] S[...] had inspected the complainant. The blood was
dripping
from the complainant’s vagina and running down her legs. When
the witness went to Papa’s place, she was in
the company of
Y[...], A[...], L[...] and N[...].
[43]
As the witness, with the company, were approaching Papa’s
place, they saw Papa locking
the door of his house. The witness and
the group approached Papa and confronted him about the rape of the
complainant. Papa denied
the allegations against him. They assaulted
him. They were joined by members of the community who live within the
surrounding area.
Papa continued to deny the allegations
notwithstanding the assault and threats from the members of the
community.
[44]
During that stage, the community members insisted that the
complainant should be brought
to identify whether Papa was indeed the
person who had raped her. Indeed, the complainant was brought by
M[...]. The complainant
was nervous, shivering and visibly scared of
Papa. The complainant pointed out Papa, saying that he was the man
who raped her.
[45]
For the reasons that the complainant was scared, after pointing out
Papa, she was then
taken away. The grandmother, who lives in town,
insisted that the complainant should be taken to hospital. The police
had been
called during that time by the sub-headman. The complainant
was taken to hospital by her grandmother, L[...].
[46]
After the complainant, L[...] and the grandmother of the child had
left, the members of
the community demanded the key to Papa’s
house. Initially Papa refused to produce the keys, claiming that he
does not know
where the keys were. He was searched and the keys were
found in the jacket that he was wearing and on the jacket he was
wearing
was written ‘Education’. When his house was being
opened, Papa ran away, but he was apprehended after a chase. The
police eventually arrived.
[47]
The witness was cross-examined. She maintained her version. The
essence of her cross-examination
was to put the version of the
accused. Nothing turned out on the cross-examination of this witness.
[48]
The next witness was L[...] P[...], a 23-year-old woman. She
testified that on the date
of the incident, 1 September 2019, at
about 18h00, she was at her home. Whilst at home, she heard a knock
at the door. She opened
the door and noticed that the persons who had
knocked, were the complainant’s grandmother, M[...], V[...] and
the complainant.
At the time of opening, V[...] was carrying the
complainant. The witness also noticed that the complainant was
bleeding. According
to this witness, the complainant’s pants
was covered in blood. She then requested that the complainant should
be put on her
bed for examination. She inspected the complainant
trying to check the injuries that she had sustained. The complainant
refused
to open her legs as she would close her legs. The witness
called a neighbour, N[...] S[...]. The brothers of the witness,
W[...]
P[...], L[...] P[...], Y[...] P[...] and A[...] P[...], were
also at the premises. The complainant was asked who had injured or

hurt her. She said it was Papa.
[49]
The witness, together with her brothers, W[...] P[...], L[...]
P[...], Y[...] P[...], A[...]
P[...] and N[...] S[...], proceeded to
Papa’s place to confront him. The complainant and M[...] were
left behind. As the
witness and her group were approaching Papa’s
place, they saw him locking his door, preparing to leave home. They
called
on him to stop and approached him. Upon their arrival by him,
N[...] confronted him on why he had hurt the complainant. Papa denied

the allegations and instead, told the witness and her company to go
to court. Papa was then assaulted by some young persons. The
reason
why Papa was assaulted is because he was dismissive of the
allegations and instead, telling the community to go to court.
The
incident was reported to the sub-headman. The sub-headman came with
some other local men. He instructed that Papa should not
be assaulted
and that they should go back to his house. Papa refused to produce
the keys to his house and instead, he attempted
to run away. He was
apprehended and taken back to his house.
[50]
When Papa was taken inside his room, the witness observed a sheet
that was blood stained.
The sheet was on the bed. The photograph of
the sheet was exhibited in court. It is a mustard coloured sheet and
blood stains reflected
on a part of the sheet. The sheet is part of a
photograph-album which is exhibit ‘D’. The photo-album is
from Papa’s
house. It reflects the structure which is common
cause to be Papa’s house. There are other images from the album
which reflects
the sheet with the blood stains. These were all
submitted as exhibits. The sheet is depicted in the photo-album and
there are visible
blood stains from the sheet.
[51]
The witness identified items from exhibits ‘A’ and ‘D’,
that is
the photo-album. She identified photo number 1 as the house
of Papa. Photo number 2 were the items found in the house. Photos
number
3 and 4 were items inside the house. Photos number 5, 6 and 7
she identified the sheet on top of the bed and blood stains on part

of the sheet.
[52]
The witness confirmed that the complainant was brought to Papa’s
place for purposes
of identifying her assailant and she identified
Papa. Subsequent to the complainant’s identification of Papa,
she was taken
to the hospital by the grandmother, S[...]. The witness
had accompanied S[...] and the complainant to the hospital. The
witness
had confirmed that there was only one person that she knew as
Papa and that was the accused person before court.
[53]
The witness was cross-examined. During cross-examination, this
witness maintained that
the complainant had informed her that she was
sexually assaulted by an old man whom she later learned to be named
as Papa. The
complainant heard about the name Papa when a certain
person had knocked at the door and window whilst the complainant was
at Papa’s
place.
[54]
The next witness was N[...] S[...], a 37-year-old woman. She
testified that at approximately
17h00 she saw a young man with a
white cap and that person was knocking at the door of Mr Pepping’s
house. Mr Pepping is
Papa. She did not see the face of the person
that was knocking at Papa’s house. She was later told by L[...]
that the complainant
had been raped and alleged that she had been
raped by Papa. Upon being informed by L[...] of the complainant’s
rape, she
attended to L[...]’s place, where she found the
complainant’s grandmother, M[...], the complainant, A[...] and
V[...].
Upon her arrival, she saw M[...] crying. She then took the
complainant, pulled the tight that she was wearing, as well as her
panty.
She noticed that the complainant had blood dripping down her
legs. Although the complainant was refusing to open her legs, the
witness saw and observed the blood in-between her legs.
[55]
After inspection of the complainant, the witness, in the company of
A[...], O[...], W[...],
L[...] and Y[...], went to Papa’s house
to enquire about the sexual assault of the complainant. On their way
to Papa’s
place, they saw Papa going out wearing a jacket with
‘Education’ written on it. They approached Papa and the
witness
enquired from him as to what he had done to the complainant.
Papa denied the allegations and became dismissive. Out of the
conversation
and the attitude of Papa, the witness became angry and
punched him. He was also assaulted by the children who had joined
them at
Papa’s place. The local community members had joined at
that stage. The young man, who was wearing a white cap that the
witness
had seen earlier on knocking at Papa’s place, also
joined. This young man happened to be A[...].
[56]
The complainant was at a later stage brought to Papa’s house
for identification purposes.
She identified Papa as the person who
had raped her. The sub-headman was also at the scene. He instructed
the members of the community
not to assault Papa and instead, that
the police should be called and indeed, they were called.
[57]
The sub-headman directed that Papa’s house should be entered
for verification of
some of the allegations. As a result of the
sub-headman’s advice, the keys to the house were demanded from
Papa. He refused
to hand over the keys, saying that he had lost the
keys. He was searched and the keys were found from him. The house was
opened
and the witness, together with other persons, entered into his
house. As they were entering the house, Papa attempted to run away.

He was chased and apprehended. Once the witness was inside the house,
she saw blood stains on a sheet which was on top of the bed.
Other
than the mustard sheet which was on top of the bed, there were also
boxer shorts which were on the floor, a washing basin
and a bush
knife.
[58]
Whilst the witness and the group were still at Papa’s place,
the grandmother of the
complainant, N[...] S[...], had arrived.
N[...] insisted that the complainant should be taken to the hospital
and indeed, she took
her to the hospital. The police later arrived.
The police talked with M[...] and O[...] and thereafter took Papa and
left with
him. The witness confirmed that she had no bad blood
relationship with the accused. She complained that when the accused
was intoxicated
or drunk, he would insult her, however, that did not
result in a bad blood relationship.
[59]
The witness was cross-examined at length. She did confirm that the
accused had denied the
allegations against him.
[60]
The next witness was Mr S[...] K[...], a 56-year-old male. He
testified that he is a sub-headman
of N[...] A[...] A[...]. He
confirmed that he knows the accused person, Mr Pepping. He is a
resident of his locality. He testified
that he had no bad blood
relationship with the accused. He further confirmed that the other
name of the accused is Papa and that
there is no other person in the
locality known as Papa. According to the witness, the name Papa is a
popular nickname of the accused.
[61]
The witness confirmed that on 1 September 2019, he was called to
Papa’s place. The
time was between 19h00 and 20h00. He received
a call from A[...] P[...]. He was informed that there was a child who
had been injured
at Papa’s house. He proceeded to Papa’s
house and found Papa and local residents. The girls who were among
the community
members suggested that Papa should be killed and he
intervened and stopped them from assaulting Papa. He suggested that
the police
should be called so that they should take Papa. Indeed,
the police were called and they arrived. It was alleged that Papa had
raped
a child. He did not talk to the complainant, however, he did
ask Papa whether it was true that he had raped the complainant.
[62]
The witness testified that Papa admitted to have raped the
complainant and he offered a
sum of R10 000 to the family of the
complainant. The witness was unhappy with the response of the accused
and he insisted that
the police should be called.
[63]
The witness was cross-examined and it was denied that the accused had
raped the child and
that he had apologised and offered R10 000.
[64]
The witness insisted that the accused had admitted to the rape of the
complainant and offered
to pay R10 000 to the family.
[65]
The next witness is A[...] N[...], a 27-year-old male. He testified
that on 1 September
2019, he attended a ceremony at the K[...]’s
homestead. The home is within the N[...] A[...] A[...]. They were
drinking umqombothi
(‘traditional beer’) at that
homestead. He stated that, although they were drinking traditional
beer, he was not drunk.
He was able to appreciate between right and
wrong. As they were drinking traditional beer, he felt being cold. He
then left for
home. He was wearing a navy t-shirt, a pair of shorts
and a white cap. On the way home, he met Papa
.
Papa is the
accused person before this court. He confirmed that the well-known
name of the accused is Papa. The witness testified
that the accused
is a person who likes to drink alcohol. On meeting him, he appeared
to have consumed some drinks.
[66]
He requested Papa to buy him alcohol. In response, Papa said he
should go with him to his
house because he had beer in the house. The
witness did not immediately go with Papa to his house. He only
followed Papa later.
When he arrived at Papa’s place, he found
one of the two rooms closed and the other one was open.
[67]
He went to the room that was opened and did not find Papa. He then
went to the room that
was closed. He shouted Papa’s name,
saying ‘Papa
,
Papa
,
Papa, Magenge’. Those
are all the names of the accused. The witness knocked at the door
that was closed. It was locked. There
was no response, however, the
witness did notice that there was a person inside the room, but it
was locked. He left because Papa
was not opening the door for him and
he was not responding when he knocked. He later heard that Papa was
being assaulted for alleged
rape of the complainant. He then went to
Papa’s place to find out.
[68]
The witness was cross-examined. The essence of the cross-examination
was to dispute the
allegations against the accused. However, it was
not denied that the other room was locked when the witness had
attended to Papa’s
place.
[69]
The next witness was Mrs E[...] M[...], a 77-year-old woman. She
testified that she knows
the accused person, Mr Louis Pepping. She
also confirmed that the other name of the accused is Papa. She
confirmed that she is
staying in the same locality as the accused and
that there is no other person known as Papa, other than the accused
in the locality.
She further testified that she is a relative to the
accused. The accused is the son to her brother. She confirmed that,
upon the
arrest of the accused, his clothes were brought to her home
by her son, R[...] M[...]. The clothes were brought in a plastic and

that she could not see what was the type of clothing.
[70]
The clothes were kept in Mrs M[...]’s place until a police
official arrived and requested
to take the clothes for forensic
examination. The police official, upon being given the plastic with
the accused’s clothes,
first wore gloves and then opened the
plastic to check the clothes. The clothes were handed by Mrs M[...]
to the police officer.
Upon opening the plastic, it was discovered
that the clothes were a pair of short pants. The police officer took
the clothes from
the plastic with his hands covered in gloves and put
it in a small plastic bag. He then took the clothes and left.
[71]
The defence did not cross-examine this witness.
[72]
The next witness was R[...] M[...], a 51-year-old male who testified
that Mrs E[...] M[...]
is his mother. He confirmed that the accused
is his cousin and that they are staying in the same locality. He
further confirmed
that the other name of the accused is Papa and that
there is no other person known as Papa in that locality.
[73]
He testified that he was instructed by the accused, when they met in
court, that he should
collect his items from his place of residence.
Indeed, he went to the accused’s place, together with his
cousin sister. Upon
arrival, they removed the household contents,
including clothes that were in a plastic and a bag. He then gave the
clothes to his
mother, Mrs M[...].
[74]
The witness was not cross-examined.
[75]
The next witness was Dr Chukwuma. He holds MBCHB with Professional
Council of South Africa
board exams 2007 and is also an independent
practice holder. He is currently a registrar at the Nelson Mandela
Academic Hospital
as a general surgeon. He testified about the
medical records of the accused. He confirmed that the accused was
also admitted at
the hospital and he was treated in respect of
injuries that he sustained from the assault by the community. He
further confirmed
that he took some blood samples from the groin area
of the accused. He sealed those and handed it over to the
investigating officer.
[76]
The next witness was Nomphelo Vellem, a registered nurse employed at
Dora Nginza,
Gqeberha (Port Elizabeth), Thuthuzela Centre as a
forensic nurse. During the period of the incident, she was working at
Thuthuzela
Care Centre in L[...]. She started working at L[...]
Centre in 2016. She did her four year diploma in nursing in Lilitha
College
of Nursing and in 2016, obtained an advanced diploma in
forensic nursing at the University of Free State. Prior to 2016, she
was
working in a surgical ward at St Elizabeth Hospital, L[...]. She
obtained her first qualification during 2010.
[77]
Her work involved examination of rape victims and preparation of J88
and other documents
pertaining to examination and findings of such
examinations in respect of rape victims. She examined the complainant
and thereafter
completed the J88 concerning the complainant in this
matter. The J88 was completed at 20h45 of 1 September 2019. On
the J88,
she recorded the findings. For the reason that the J88 was
not contested, I briefly summarize the findings recorded in the J88.
[78]
The condition of the clothing was a navy track bottom, black and
white panty, top with
blood stains. Clinical findings were that the
child was sexually assaulted. On gynaecological examination, these
observations were
made:
(a)
Breast Development – Tanner Stage 1-5 and it was 1;
(b)
Public Hair – Tanner Stage 1 – 5 and it was 1;
(c)
Mons pubis, it was normal;
(d)
Clitoris, it was normal;
(e)
Frenulum of clitoris, it was normal;
(f)
Urethral orifice, it was normal;
(g)
Para-urethral folds, it was normal;
(h)
Labia majora, it was normal;
(i)
Labia minora, it was normal;
(j)
Posterior fourchette, there was a tear at 7 o’clock.
[79]
According to the witness, a tear at 7 o’clock indicated that
there was a trauma and
that means that there was a forced penetration
which caused injury. The complainant was bleeding and the hymen
configuration was
inflamed. In other words, it was swollen. There was
swelling and bruises. The bruises had occurred within 24 hours
as they
were still red. The forensic kit was taken and sealed under
seal number of Evidence Collection Kit – PAD001480525. The
forensic
kit was sealed by the witness. Upon the kit being sealed, it
was handed to Warrant Officer Musa Cyprian Mantshule. The conclusion

consequent to the examination was that forced penetration could not
be excluded. The schematic diagrams where the witness indicated
the
inflamed hymen and the tears in the posterior fourchette and fossa
navicularis and also the redness in the perianal area, are
reflected
in section H of the J88. The J88 has a barcode which is 14D7AB8830JJ.
The barcode is the seal number of the kit. The
kit was put in a
plastic bag which was sealed by the witness. The J88 was admitted by
consent of the parties as exhibit ‘K’.
It also formed
part of the record of proceedings. The paediatric sexual assault
evidence collection kit was also put in a sealed
bag by the witness.
There are two barcodes which are – PA4002513561 and
PAD001480525.
[80]
The samples collected by the witness, sealed in a bag and handed over
to Warrant Officer
Cyprian Mantshule as evidence collection, were:
(i)
Swab number 1 – vulva swab;
(ii)
Swab number 2 – labia;
(iii)
Swab number 3 – perianal;
(iv)
Swab number 4 – there was nothing; and
(v)
Large bag – panty.
[81]
All this evidence about the sexual assault evidence collection kit
were prepared and sealed
by the witness who has confirmed the
correctness and truthfulness of the information contained in exhibits
‘K’ and
‘L’.
[82]
The witness was cross-examined. During cross-examination, the
findings of the witness and
the collection of the sexual assault
evidence collection kit was not disputed nor contested.
[83]
The next witness that was called by the State on aspects relating to
photo albums
exhibits ‘A’ and ‘D’, was
Constable Ashere Luyolo Faye. He testified that he is a member of the
South African
Police Service and attached to the Local Criminal
Record Centre at Mt Ayliff. Prior to the period May 2021, he had been
attached
to the L[...] Local Criminal Record Centre. Before 2013, he
had been stationed at Germiston and was transferred to L[...] on or

about October 2013. His position at the Local Criminal Record Centre
involves visiting crime scenes, uplifting fingerprints from
the crime
scenes, taking photographs and video graphing and checking the scenes
if there are any exhibits that could be collected
for testing. He
received the necessary training for the position he holds and the
responsibilities he performs.
[84]
On 1 September 2019, he was requested by Warrant Officer Mantshule to
attend to a crime
scene at N[...] A[...] A[...], L[...]. Upon his
arrival at the crime scene, he made some observations and took
photographs. He
prepared the key to the photographs. The key to the
photographs reflects point A which shows a room where the incident is
said
to have occurred. Photograph 2 to photograph 5 shows the
interior of the house where the incident had occurred. Photograph 6
and
photograph 7 shows the alleged blood stains found on the sheet on
top of the suspect’s bed. He had compiled the albums and
those
were exhibited as ‘A’ and ‘D’ and thereafter
he made a sworn statement relating to the photo-albums.
[85]
According to the witness, Constable Faye, L[...] Local Criminal
Record Centre is servicing
five stations and each police station
would have its CAS number whether it is a L[...] or Flagstaff. When a
case is referred to
the Local Criminal Record Centre, it would
register the case and the system would give the case its number, the
Local Criminal
Record Centre number regardless whether the case is
coming from Port St Johns or Flagstaff. The aerial photos were not
taken by
the witness, but were photographed by a warrant officer from
Bhisho using a drone in taking those photographs. The witness
personally
took exhibit ‘D’ which are the photographs
relating to the interior of the house where the incident had
allegedly occurred
and photographs relating to the alleged
bloodstains found on the sheet on top of the accused’s bed. The
witness had confirmed
the accuracy of the photo-album, which is
exhibit ‘D’. Exhibit ‘A’ was not questioned
by the accused.
[86]
Constable Faye confirmed that the crime scene was pointed out by
Warrant Officer Mantshule
and that he took photographs as the
scene was pointed out. He also collected from the crime scene a piece
of a sheet which he had
cut from the sheet that was on top of the
accused’s bed. The piece of sheet that he cut was the portion
that had bloodstains.
In terms of the photographs, the portion with
bloodstains from that sheet is reflected in photographs 5, 6, and 7.
Constable Faye
indicated that he decided to cut the portion from the
sheet because he intended to send that piece to Gqeberha (Port
Elizabeth)
for DNA testing.
[87]
The constable wanted the laboratory to check if, what he had observed
from the piece of
the sheet that he had cut, was indeed blood and
whether it has any link with the case. According to the constable,
what he had
seen from the piece of sheet that he had cut, appeared to
be bloodstains and the DNA was necessary for such verification. The
constable
had cut the piece of the sheet which contained the
bloodstain or something which looked like a bloodstain, because it
was not necessary
to take the whole sheet for DNA. The constable
identified from photographs 6 and 7 the areas in the sheet which he
had cut and
those are the areas that contained something resembling
bloodstains.
[88]
The witness testified that after he had cut the piece, he placed it
in a forensic bag.
Once the piece of the sheet was put into the
forensic bag, he sealed the forensic bag and left the crime scene
proceeding to L[...]
police station. The forensic bag was registered
in the SAP register. He did not take the photographs of the sealed
forensic bag.
The explanation for not taking the photograph is that
the forensic bag was not going to be changed and that there were some
threats
of violence at the crime scene. Members of the community were
demanding the accused and that led them to work under pressure so

that they can quickly leave the crime scene before it became totally
chaotic. The bag was not interfered nor tampered with from
the time
that he collected the exhibits, sealed in the forensic bag and took
it to himself.
[89]
Constable Faye personally registered the exhibit bag and made an
entry in the SAP 13 register
with the details of the case when he was
at the police station and the opportunity had presented itself for
the registration of
the exhibit. The SAP 13 register was also
submitted as an exhibit with the full details that reflect SAP 13
number, the description
of the date when the entry was made, the date
of registration, the occurrence book number. The item is described in
the SAP 13
register as ‘1 piece of cloth in a seal bag number
PW4000965682’. This is the number that was allocated to the
sealed
bag. The bag was sealed by the witness, Constable Faye, in
person. The SAP 13 reflects that Constable Faye of LCRC L[...],
seized
from crime scene, residence of Pepping, N[...] AA, the item
that is entered into the register.
[90]
The witness, Constable Faye, after he made the entry and the exhibit
was confirmed, took
the exhibit and went to the Local Criminal Record
Centre to make an entry in an exhibit. Throughout, the sealed bag was
not interfered
with and it remained in the control of Constable Faye.
The sealed bag was handed over to Warrant Officer Dzingwe. It was
sealed
and closed, there was no interference with the contents of the
bag. Warrant Officer Dzingwe took the bag to the storeroom for
safekeeping.
Constable Faye prepared the paperwork for the exhibit.
The constable maintained that, even during cross-examination, the
sealed
bag was never interfered with and that it was stored in a safe
with all the relevant markings and entry numbers and registration.
[91]
During cross-examination, Constable Faye was criticized for not
taking photographs of the
place where he had cut the piece out of the
sheet. The suggestion from counsel being that the portion or part of
the sheet where
the piece was cut from should have been photographed
so as to reflect the hole in the sheet after cutting. The constable
maintained
that it was not necessary to take photographs of the
whole, nor to submit the entire sheet for DNA. The constable pointed
to photograph
5 which reflects the entire sheet and the portion
where, what appears to be a bloodstain, is located. The constable
indicated that
he was only obliged to cut out the portion or part
containing what appears to be bloodstains. He took the piece and
sealed it in
a forensic bag. The constable testified that on the date
of the incident, they completed the collection of evidence very late
and
at night. On the date of the incident, he kept the exhibit in the
safe at his house. The exhibit was under his control and in a
locked
safe until the morning when he took it to the police station and
handed over to Warrant Officer Dzingwe. That conduct
was in
accordance with the policies of the Local Criminal Record Centre. The
constable maintains that there was nothing untoward
in respect of his
approach and that was in line with their manner of operation with
regards to collection of exhibits. The constable
was further
cross-examined about the contradictions regarding his statements and
he explained that the other statement was the
typed version which he
prepared later for the Investigating Officer. The contents of the
statements do not materially differ.
[92]
Warrant Officer Zwelidumile Dzingwe also testified. In his testimony
he confirmed that
he is employed by the South African Police Service.
He has 18 years of work experience. He is attached to the Local
Criminal Record
Centre. He started working at the L[...] Local
Criminal Record Centre during 2013. Prior to employment at the Local
Criminal Record
Centre in L[...], he was employed at eLwandle in the
Province of the Western Cape. He started working at North West and
from there
he went to L[...].
[93]
He was a custodian of the exhibits under the LCRC number 16/9/2019.
In relation to this
case, he received an exhibit register from
Constable Faye. He took the exhibit to the safe place where the
exhibits are kept. The
safe place is in the strong room. The strong
room is always locked.  There are only two access keys. The
first key is kept
by him and the second key is kept by the Commander.
According to the witness, no person can place an exhibit in or remove
an exhibit
from the strong room without his knowledge. The Commander,
who also has a set of keys to the strong room, cannot remove or allow

in an exhibit without the knowledge of Warrant Officer Dzingwe,
according to his testimony. When the exhibits in this case were

submitted by Constable Faye, he took them and locked them in the
secured safe in the strong room. After some time, Constable Faye
came
back and requested to prepare the paperwork in respect of the
exhibits and at that time, they were arranged to be taken to
the
forensic science lab. He took the exhibit and handed over to
Constable Faye, however Constable Faye would not open the sealed

exhibit, he would just attach the necessary papers. He does not take
away the exhibits, except to stick the necessary information
and hand
it back to him for safe keeping.
[94]
Throughout that process, Warrant Officer Dzingwe confirmed that he
had never lost sight
of the exhibits and he remained in control. When
he handed over the exhibit to Constable Faye, he did not lose control
and every
process in relation to the exhibit was done in his
presence. After Warrant Officer Dzingwe had prepared the paperwork,
the exhibit
was returned to him for safekeeping in the strong room.
[95]
Once the exhibits were prepared, Skynet couriers were called to pick
the sealed parcel
containing the exhibits for transmission to the
lab. Warrant Officer Dzingwe confirmed that he is the one who handed
the parcel
over to Skynet couriers and he took it from the strong
room, where it had been stored. The exhibit was sealed when handed
over
to Skynet couriers and a receipt from Skynet was received. Prior
to the exhibit being handed over to Skynet couriers, it was never

tampered with. The receipt has a barcode. In respect of this exhibit,
the barcode was 029908017045. The barcode is a unique number
that
normally assists to track the exhibit. The LCRC is also reflected and
in this case, it is LCRC 16/9/2019. The significance
of the LCRC is
to know what document has been sent and when was it sent and also to
understand that a certain exhibit with a number
was sent to the lab.
The receipt from Skynet was handed in as an exhibit by consent of the
parties.
[96]
The witness was cross-examined, counsel pointing out certain
contradictions in the handwritten
statements and typed statements of
Constable Faye, which were commissioned by the witness. The witness
conceded that there were
some mistakes and that some of the
statements were just a summary of the events.
[97]
The next witness that was called was Warrant Officer Musa Sikhweba
Mantshule. He is employed
by the South African Police Service. On 1
September 2019, he was on duty. He was working nightshift. On the day
he was assisting
at the Community Service Centre (‘CS’).
He received a complaint that there was a rape of a child at N[...]
A[...] A[...].
He received the call through the police station. He
responded to the complaint, together with his colleagues. Among these
colleagues
were Sergeant Mqikela and Constable Mranqelwa. They had
received a complaint at approximately 20h00 and they drove to N[...]
A[...]
A[...] where the incident was reported to have occurred.
[98]
Upon their arrival at N[...] A[...] A[...], they were directed to a
home which consisted
of a two roomed flat. They proceeded to the home
and found community members already at the homestead. On their
arrival, they were
informed that a child had been raped. They talked
to the sub-headman, Mr S[...] K[...]. The sub-headman gave them a
report that
there is an allegation that a six year old child had been
raped by Papa Pepping, the accused. Warrant Officer Mantshule
confirmed
that he knows Papa Pepping because he is an education
inspector at L[...].
[99]
The Warrant officer enquired about the whereabouts of the child and
he was informed that
the child had already been taken to hospital. He
further asked whether there was any relative of the complainant
present and he
was pointed to the grandmother, M[...]. He also asked
to talk to the accused and he was informed that he was inside the
room. He
went inside and found the accused sitting on the bed. He was
with two men. He observed that the bed was not made up. The accused

was wearing a pair of short pants. He introduced himself to the
accused and requested the other two men to leave them inside. When
he
questioned the accused about the allegations of rape, the accused
denied raping the complainant. The Warrant officer saw bloodstains
on
a mustard coloured sheet which was on the accused’s bed. On the
basis of the observed bloodstains appearing on the sheet,
the Warrant
officer called for the Criminal Record Centre and requested
photographers to visit the accused’s home and construct
the
scene.
[100]
The Warrant officer had a suspicion that the bloodstains could be
belonging to the victim that was allegedly
raped in that room,
according to the report he had received. The bloodstain on the sheet
was in a form of a circle. They then arrested
the accused person. The
accused was taken to the police vehicle and the witness remained
behind waiting for the photographers.
The photographers came and
Constable Faya was the photographer. The witness took him inside the
room and showed him the bloodstains
that he had seen. Constable Faya
indicated that he would cut the piece with the bloodstains after
taking the photographs. This
witness then left Constable Faya to
construct the scene.
[101]
After leaving Constable Faya, the witness left and joined his
colleagues in the vehicle. They proceeded
to St Elizabeth Hospital.
The accused was examined by Dr Chukwuma. The doctor indicated
that there was blood between the accused’s
groins. On the basis
of this information, the witness requested the doctor to take samples
of the bloodstains between the groins
of the accused so that he could
put them in the plastic bag of the hospital. Indeed, samples of the
bloodstains were taken and
put into a plastic bag, which was then
sealed. The sealed bag containing the samples of the bloodstains
found on the groins area
of the accused were given to the witness.
The accused was admitted in the hospital.
[102]
The witness proceeded to Thuthuzela Care Centre to meet with the
complainant and collect the kit and the
J88 form. At the Thuthuzela
Care Centre, The witness met with Nurse Vellem. Upon meeting Nurse
Vellem, he was informed that the
examination of the complainant had
been completed and that the kit was ready for collection. He was made
to sign for the kit so
that he could receive it. When the witness
received the kit, it was sealed. The witness took the sealed kit,
together with the
one received from Dr Chukwuma and went to the
police station. At the police station, the sealed bags were recorded,
both of them
on the SAP 13 book. At the police station, the exhibits
were received by Sergeant Jiba. The exhibits were still sealed.
[103]
The witness was also shown exhibit ‘A’ and ‘D’
which is the photo-album and the
structure of the accused’s
residential place. He confirmed the place as the one he had visited
and saw the bloodstains on
the sheet. His attention was drawn to
photographs 6 and 7 appearing on exhibit ‘D’, which he
confirmed to be the sheet
that he saw with bloodstains at the
accused’s place.
[104]
The witness was cross-examined.
[105]
The next witness was Sergeant Khanyisa Jiba. She testified that she
is employed by the South African Police
Service and stationed at
L[...] Police Station. She confirmed receipt of the exhibits from
Warrant Officer Mantshule. She confirmed
that the exhibits were
sealed when she received them. The exhibits were recorded in the SAP
13 book and in the occurrence book.
The SAP 13 book and the
occurrence book were submitted as evidence and thus form part of the
record.
[106]
The witness was not cross-examined on her evidence.
[107]
The next witness was Zwelithini Gentsane, a member of the South
African Police Service, holding the rank
of a Warrant Officer. He is
attached to the Family Violence Child Protection Unit and Sexual
Offences under L[...]. He testified
that his involvement in the case
was when he was instructed to take a rape kit to the Cape Town
laboratory. He was given the
instructions to send the kit to the
laboratory by General Dladla. He was given a rape kit which was in a
sealed forensic bag. He
was accompanied by Warrant Officer Zide. They
received the sealed rape kit and drove in a vehicle to Mthatha
Airport. At the airport,
they boarded the plane to Cape Town.
The kit was still sealed and in the same condition it was received,
when they handed
over the kit in Cape Town. They were issued with a
receipt confirming that the kit had been received. The kit was never
tampered
with at any stage from the time of receipt from L[...] until
it was handed over in Cape Town. They arrived in Cape Town after
hours
and had to sleep in a hotel. At the hotel he locked the kit in
a safe until the morning, when he took the kit to the laboratory.
The
kit was received by a receptionist who issued the receipt confirming
the handover of the kit.
[108]
The second involvement of the witness with the case was when he went
to the M[...] family at N[...] A[...]
A[...]. It was on 25 September
2019. On this occasion, the witness had been requested by Warrant
Officer Javu to collect a pair
of boxer shorts that was worn by Mr
Pepping, which boxer shorts was in possession of the M[...] family.
He proceeded to the M[...]
family and he received the boxer shorts
which was handed to him by Mrs M[...]. The boxer shorts was contained
in a plastic. Although,
Mrs M[...] had indicated that she does not
know the boxer shorts, she confirmed that there were clothes of the
accused at her house.
When she brought the plastic with the boxer
shorts, the witness saw it and decided to wear gloves and retrieve
the boxer shorts.
The witness testified that he sealed the boxer
shorts in a forensic bag and took it, after informing Mrs M[...].
[109]
On arrival at the office, he was instructed to take the said pair of
shorts to the laboratory. The witness
proceeded with Constable
Nyenyiso to the Gqeberha (Port Elizabeth) laboratory. They were
driving a Volkswagen Polo vehicle
and the exhibit was locked in the
boot of the vehicle. No person had access to the contents in the boot
of the vehicle.
[110]
The sealed forensic bag, which contained the boxer shorts, was handed
to the laboratory on 26 September
2019. The sealed kit was not handed
in on 25 September 2019, for the reason that the witness arrived late
in Gqeberha (Port Elizabeth)
and the laboratory had already closed.
Overnight, the sealed kit was kept in a safe at the hotel where the
witness had slept. No
person had access to the sealed kit. The
witness confirmed that the seal was never tampered with. When the
witness handed over
the kit at the laboratory, he was issued with an
acknowledgement receipt. The receipts were exhibited and they form
part of the
record.
[111]
The witness was cross examined.
[112]
The next witness was Warrant Officer Rebecca Kimberly Francis-Pope.
She testified that she is employed by
the South African Police
Service at the Biology Unit in the Western Cape. She holds a BSc
degree majoring in Biochemistry, Microbiology
and Psychology as well
as a BSc honours degree majoring in Biotechnology. She obtained both
of her degrees from Rhodes University.
She submitted two affidavits
that she had compiled regarding the L[...] CAS 05/09/2019. She is a
forensic analyst and her day to
day duties are a reporting officer,
which means that she received the case file once all the DNA analysis
had been done and she
makes interpretation of the results. In her
evidence, she briefly explained the process of DNA:
‘
The
process:
When
a case is opened in the Eastern Cape, such as this one, usually the
exhibits are sent to the Port Elizabeth laboratory. On
receipt there,
only exhibits that are contained in a sealed exhibit bag are
received, so they must be in a sealed condition and
an analyst there
will break the seal and perform presumptive tests on the exhibits.
For example, the analyst will take swabs of
an exhibit to test, to
check for skin cells, they will check for any blood or possible semen
as well. Once the analyst has identified
any possible blood stains or
semen stains, they make cuttings of those stains, or they take the
swabs that were looked at and place
them into little envelopes which
are then collated within the case file. That case file is then sealed
and sent to the Western
Cape where someone will break the seal, get
the docket and submit the stains or swabs for DNA analysis. The DNA
process involves
taking, for example, an intimate swab taken from a
victim and place the swab in a little Eppendorf tube which is then
labelled
with a unique barcode that allows the tracking of that
sample all the way through the process. The DNA from the swab is then
isolated,
which is called extractions. The DNA is extracted from the
cells, any human cells that may be on that swab, and then that
extract
is taken and specific locations on the DNA is then looked at
and identified. Thereafter millions of copies are made through a
process
called a polymerase chain reaction and it is those specific
areas that allow the development from sample numbers which make up a

person’s DNA profile. Once all those numbers have been
retrieved and quality checks have been performed and passed, the case

file will then be presented for comparison of reference samples from
both the accused and the victim. That DNA is then compared
to the
reference samples from the exhibits like the rape swabs and then the
results will be interpreted and the findings will then
be compiled
into a 212 report.’
[113]
She further testified that when the exhibits are transported from
Gqeberha (Port Elizabeth) to the
laboratory, there are different
ways of transportation. She was adamant that for this present case,
it was done via courier, Skynet.
Once the exhibits are received at
the laboratory in Plattekloof, Cape Town, they will be received in
the reception and they will
then be transferred to a specific biology
unit, which is within the same building. They would just be handed
over manually. In
circumstances where the exhibit bags are received
opened or with some other defects, the laboratory will not take them
for the
reason that the integrity of the process would be
compromised. The result of not accepting the exhibits, is that
samples would
not be processed for reasons of tampering with the bag.
[114]
In respect of the present case, the bags were received sealed and in
an uncompromised condition. A statement
in terms of
section 212
,
basically a chain statement from the analyst, who received the sealed
exhibit bag and break it to perform the duties, has been
obtained and
filed.
[115]
In this case, the piece of sheet and the boxer shorts were analysed
at Gqeberha (Port Elizabeth), the presumptive
testing were done at
Gqeberha (Port Elizabeth) and the files were then sent to the Western
Cape where the submission officer in
the Western Cape, opened the
bags. The sexual assault kit was sent directly to the Western Cape
laboratory. The bag was opened
or the seal broken at the Western Cape
laboratory and the presumptive testing also done in the Western Cape.
The chain statement
in terms of
section 212
had been filed.
[116]
The chain statements in terms of
section 212
were filed by consent of
the defence and no issue was raised concerning the statements. They
were also read into record. I will
not repeat the contents of the
statements. All chain statements were admitted as exhibits to the
proceedings.
[117]
The witness testified that the DNA extraction is done using machines
and the machines are calibrated. In
this regard, she produced
calibration certificates that are accompanied by the affidavits from
the person who did the calibration.
[118]
The conclusions of the witness, after analysis and reference to the
tables that appear from her statement
were that:
‘
From
the results in Table 1 I can find the following findings:
4.1
The DNA result from the possible blood from piece of Sheet B
PW400965682, matches the DNA
result from the reference sample
17BBD0190 PA4003786318. The most conservative occurrence for this DNA
result is 1 in 1.3 times
10 to the 5 trillion people.
4.2
The DNA results of the reference samples 17DBBD0190 PA4003783618 and
17DBAC2258 PA4003527430
are read into the mixture DNA result from the
possible high friction from piece of Sheet B PW4000965682. The most
conservative
occurrence for the DNA result for all the possible
contributors to the mixture DNA result is 1 in 19 million
people
.
’
[119]
The witness concluded that the possible blood on the sheet matches
the reference sample of the victim and
the skin cells, the high
friction on the sheet, both the donors of the accused’s
reference samples and the victim’s
reference samples can be
read into that mixture as well. In other words, the DNA was positive
for both of their DNA on the skin
cells. Both of their skin cells
were there and the victim’s blood was there. These results are
contained in the affidavit
exhibits ‘Y’ and ‘Z’.
[120]
The witness was not meaningfully cross-examined. There was no dispute
that the piece of sheet found from
the accused’s place was
received by the laboratory and subjected to analysis. The witness,
when asked whether the machines
were in working condition at the time
of DNA relating to this matter, she confirmed that the machines were
working.
[121]
The next witness was Warrant Officer Javu. He testified that he is
attached to the Family Violence and Child
Protection and Sexual
Offences Unit. He is the investigating officer in the case. He took
over as an investigating officer from
Constable Nyenyiso. He took
several statements from witnesses in connection with the case and he
also took buccal samples from
the accused and the complainant. He
took the buccal samples twice from the complainant and twice from the
accused.
[122]
He was cross-examined in relation to the investigation and regarding
the taking of the buccal samples from
the accused.
[123]
The next witness was Zithulele Moses Dladla. He testified that he is
a deputy provincial commissioner
for Crime Detection Station at
Zwelitsha. He is responsible for all the detectives in the province
of the Eastern Cape. This case
was reported to him. On doing a follow
up, he found that the exhibits were not yet sent to the laboratory,
although they had been
obtained and prepared. He instructed that the
members must send the exhibits to the laboratory. He approved the
flights for Zwelithini
Gentsane and Warrant Officer Zide to Cape
Town. He also signed for their trip to Gqeberha (Port Elizabeth). He
confirmed the correspondence
written to the laboratory in the Western
Cape, which accompanied the exhibits.
[124]
The witness was not cross-examined.
[125]
The next witness was Ms Sike. She confirmed the handing over of the
exhibits. Nothing turns on the evidence
of this witness.
[126]
The next witness was Afika Nyenyiso. She testified that her
involvement in the case was to take the exhibits
from the SAP 13 at
the charge office. The exhibits were the rape kit of the complainant
and the buccal samples of the accused.
She received the exhibits from
Sergeant Jiba. The exhibits were sealed which she received from
Sergeant Jiba. The exhibits pertained
to CAS 05/9/2019. Her evidence
relates to the chain of evidence at L[...] police station and the
Criminal Record Centre. There
was no dispute about her evidence.
[127]
She was not cross-examined.
[128]
The State also submitted the victim assessment report and various
exhibits on the chain of the exhibits
and the photo-albums. The DNA
chain statements were also submitted. All exhibits were submitted by
consent. The State submitted
two reports which were compiled by a
social worker regarding the assessment of the complainant. The
reports were also read into
record. Nothing turns on those two
reports at this stage.
[129]
The State’s case was thereafter closed.
The
Defence Case
[130]
The accused, Mr Pepping, was the only witness who testified in his
defence. In his testimony, he denied
raping the complainant. Before
his testimony, the accused requested to read a document. He read the
document in which he largely
suggested ulterior motives both in his
arrest and prosecution. He accused the National Prosecuting Authority
of having prejudged
him. He alleged political motivations for the
allegations against him. It was at that stage that this Court
requested the accused
to focus on the present case and he then
allowed his counsel to lead him.
[131]
The central defence of the accused is the denial of the allegations
against him. He accepted that his popular
nickname is Papa. He said
that on the day when he left his house, it was unlocked and the keys
were inside. On the day he was drinking
with some friends out of his
home. He only came back to his house between 16h00 to 17h00. He was
seen locking his door. He disputed
all the allegations by the
complainant, including the suggestion that the complainant heard his
name from a person that was knocking
at the door and peeped through
the window. He confirmed that he is well known in the community and
that children who go to the
crèche usually greet him saying
‘good morning Papa’. He suggested that the complainant
always knew him as Papa
because children between the ages of three
and four, who live within the area, knew him.
[132]
He confirmed that he is a school subject advisor who regularly visit
schools at N[...] A[...] A[...] and
he is known as Papa. He disputed
that the complainant did not know his name before this incident. He
insisted that it would be
strange for him to lift a young girl on his
shoulders in a public road and take her to his room. He testified
that the sub-headman
was living closer to his house and would have
heard the complainant when crying and he would have been seen when
carrying the complainant
over his shoulders. He disputed that his
door was kicked open.
[133]
When asked about the positive DNA results, he pointed out that on the
day in question, he was assaulted
by members of the community and he
was forcefully asked to strip off all his clothes, leaving underpants
and told to sit on the
sheet. He was forced to lay on his stomach. In
relation to his clothes that were taken by his cousin, R[...], he
suggested that
the clothes were in possession of R[...] for a long
time, which was about three and a half weeks to a month. He also
suggested
that R[...] is one of the committee members of the
sub-headman. He complained that the clothes were in a transparent
plastic bag
and were not kept by his aunt in her room and that R[...]
had access to the clothes. Regarding the piece of sheet that had
bloodstains
that was cut by the police, he was not present. The
accused suggested that the police had not properly investigated the
case on
the basis that they should have investigated the man that was
knocking at his door and do his DNA test. He questioned why the
police
would only cut a specific piece from the sheet.
[134]
The accused suggested that one of the witnesses by the name of L[...]
had a grudge against him, because
she used to work for him. He fired
her and hired another helper. He further suggested that all the
statements and evidence of other
witnesses were a mere fabrication of
their imaginations.
[135]
He was cross-examined extensively by the State. He was asked whether
the complainant has ever visited his
place and his answer was that
she has never visited his place. When he was invited to comment on
the complainant’s statement
that he did not know him until she
heard his name shouted by the person knocking at the door saying
Papa, the accused gave an answer
that he does not know that.
[136]
The accused was confronted with a question on how he explains the
presence of the complainant’s blood
on the sheet on his bed in
his room, if she was not raped in that room. His answer was that
there were two people who were seen
at his door, the first person was
seen by N[...] and at that time his door was not locked as he had
deliberately left the keys
when he went to spend time with his
friends. The accused suggested that somebody must have raped the
child in his room and all
what the court needs to find out is who
raped the child. He then asked a rhetorical question which was ‘how
would he leave
a mess in his bed if he had raped the child in his
room?’.
[137]
The accused suggested that the complainant was raped by somebody else
in his room and he is being falsely
implicated. When it was put to
him that he is just trying to justify the presence of the
complainant’s blood on his sheet
and the DNA results, his
response to the State counsel was ‘if you say so’.
The accused did not dispute the evidence
of A[...] N[...] that he had
met him at about 16h00 going home and that he appeared to have
consumed alcohol.
[138]
After cross-examination, the defence’s case was closed.
[139]
That was the totality of the evidence presented by the State and the
defence.
The
common cause facts
[140]
It is common cause that the complainant was raped on 1 September
2019. It is also common cause that bloodstains
were seen on a sheet
in the accused’s room. The sheet was on top of the accused’s
bed. It is also common cause that
a piece of the sheet was cut by the
photographer and sent to the laboratory for analysis and DNA testing.
The DNA test results
were positive in that they confirmed that the
bloodstain were that of the complainant. Several admissions regarding
the chain of
evidence regarding the exhibits and the DNA results were
made. It is also common cause that it is the complainant who reported
the incident of rape to her siblings and neighbours. It is not denied
that the complainant, at the time of reporting the rape incident,
had
blood dripping down her legs from her vagina and staining her
clothes.
[141]
It is also common cause that the complainant is a single witness in
relation to the act of rape and that
she is a minor.
The
issue for determination
[142]
This Court must determine whether the accused is the person who raped
the complainant. In determining this
question, this Court must
evaluate the evidence in its totality.
Evaluation
of evidence and the applicable law
[143]
In
S
v Trainor
[4]
Navsa JA quoting from the judgment by Nugent J held:
‘
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the

logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case,
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
to acquit), must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be
unreliable; and some of it might be
found to be only possibly false or unreliable; but none of it may
simply be ignored. . . A
conspectus of all the evidence is required.
Evidence that is reliable should be weighed alongside such evidence
as may be found
to be false. Independently, verifiable evidence, if
any, should be weighed to see if it supports any of the evidence
tendered.
In considering whether evidence is reliable, the quality of
that evidence must of necessity be evaluated, as must corroborative

evidence, if any, evidence must of course be evaluated against the
onus on any particular issue or in respect of the case in its

entirety. The compartmentalised and fragmented approach of the
magistrate is illogical.’
[144]
In
S
v Singh
[5]
Leon J, even before the advent of the Constitution, held:
‘
. . . it would perhaps be
wise to repeat once again how a court ought to approach a criminal
case on fact where there is a conflict
of fact between the evidence
of the State witnesses and that of an accused. It is quite
impermissible to approach such a case thus:
because the court is
satisfied as to the reliability and the credibility of the State
witnesses that, therefore, the defence witnesses,
including the
accused, must be rejected. The proper approach in such a case such as
this is for the court to apply its mind, not
only to the merits and
demerits of the State case and the defence witnesses, but also to the
probabilities of the case. It is only
after so applying its mind,
that a court would be justified in reaching a conclusion as to
whether the guilt of an accused has
been established beyond all
reasonable doubt. The best indication that a court has applied its
mind in the proper manner, is to
be found in its reasons for judgment
including its reasons for the acceptance and the rejection of the
respective witnesses.’
[145]
In
S
v Shackell
[6]
Brand AJA, as he then was, held:
‘
The
court does not have to be convinced that the accused version is true.
If the accused’s version is reasonably possibly
true in
substance, the court must decide the matter on the acceptance of that
version. Of course it is permissible to test that
version against
inherent probabilities. But, it cannot be rejected merely because it
is improbable; it can only be rejected on
the basis of inherent
probabilities if it can be said to be so improbable that it cannot
reasonably possibly be true.’
[146]
In this case, the State was required to adduce credible evidence that
would render the version of the complainant
more likely that it was
the accused who sexually assaulted the complainant; and the accused’s
version less likely that he
is not that person who sexually assaulted
the complainant.
[147]
It is not in dispute that the complainant was sexually assaulted on 1
September 2019. That is common cause
between the parties. At issue is
whether the complainant did identify the person who sexually
assaulted her. In evaluating the
evidence of the complainant, this
Court takes into account that she is a minor and that she is a single
witness in relation to
the act of rape. I also take into account that
the identification of the accused is circumstantial for the reason
that she relies
mainly on the name that was shouted by the person who
was knocking at the door and peeping through the window and the
subsequent
DNA test results.
[148]
Insofar as
the evidence of children, in
R
v Manda
[7]
it was said that:
‘
The
imaginativeness and suggestibility of children are only two of a
number of reasons why the evidence of children should be scrutinised

with great care amounting, perhaps, to suspicion.’
[149]
In
S
v V
,
[8]
Zulman JA held:
‘
In
view of the nature of the charges and the ages of the complainants it
is well to remind oneself at the outset that, whilst there
is no
statutory requirement that a child’s evidence must be
corroborated, it has long been accepted that the evidence of
young
children should be treated with caution . . .’
[150]
In this case the complainant’s evidence was simple and fairly
straight forward. She had been sent
to buy chips by the uncle, S[...]
P[...]. She met an unknown person along the way. This person asked
her to come to him, promising
eggs, money and naartjies. She refused
to heed the call of the unknown person. This person chased her until
he caught up with her,
grabbed her and lifted her to the shoulders.
All this time, the complainant did not know who this person was. She
only heard the
name from a person who was knocking at his door, where
the complainant was raped. There is no denial that there was a person
who
knocked at the door of the accused. The accused did not dispute
that there was a person who had knocked at his door.
[151]
The complainant was searched for by the siblings when she did not
return home. She met with her sister,
O[...], along the way back
home. O[...] observed blood dripping down the complainant’s
legs and enquired what had happened
to her. It was only at that stage
that the complainant, on her own, reported that she had been raped by
a man unknown to her. She
only learned about the name of that man
when there was a knock on his door and shouting of the name Papa. In
this instance, it
cannot be suggested that the name Papa was
suggested or imagined by the complainant. Admittedly, the complainant
did not even know
the name Papa before the incident.
[152]
The other witnesses, such as the grandmother, M[...], V[...], N[...],
S[...], L[...], only received a report
from the complainant about the
name of the person that had raped her. They inspected the complainant
and saw for themselves the
blood that was flowing from the vagina of
the complainant. It was only then that they decided to approach the
accused since they
only know him as Papa.
[153]
There is no motive which had been suggested by the accused that would
have caused the complainant to mention
his name as the person who
raped her. In his own version, the accused stated that the family of
the complainant was new in the
area and he, personally, had never
seen the person of the complainant. The question that this Court
asked itself, in these circumstances,
is how it can be safely
suggested that the complainant might have imagined or suggested the
name of Papa?
[154]
The accused has given a proposition that he could not have lifted the
complainant to his shoulder and the
complainant was criticised for
not crying when she was chased and grabbed by the unknown man. The
complainant has given an explanation
in this regard and her
explanation was that there was no one in the vicinity who could have
heard her crying. I accept this explanation,
taking into account the
age of the complainant. Insofar as the evidence that the complainant
heard about the name of the accused
whilst she was at the accused’s
place, I accept that version. I cannot find fault.
[155]
The
complainant’s evidence, in my mind, was clear and satisfactory
in all material respects. She heard the name Papa whilst
she was in
the room of the accused. The evidence of the complainant is
corroborated by the DNA insofar as the blood of the complainant
was
found in a sheet on the bed of the accused. The trite law is that
circumstantial evidence rests on two cardinal rules
[9]
of reasoning which are:
‘
(a)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, then
the inference cannot be drawn.
(b)
The proved facts should be such that they exclude every reasonable
inference from them save
the one sought to be drawn. If they do not
exclude other reasonable inferences, then there must be doubt whether
the inference
sought to be drawn is correct.’
[156]
The proved facts are:
(1)
Both the accused and the complainant did not know each other prior to
the incident;
(2)
The complainant did not know the house of the accused;
(3)
The complainant has never been in the house of the accused;
(4)
Blood stains were found in the room of the accused on a sheet in his
bed;
(5)
The DNA confirmed the blood stains to be the blood of the
complainant;
(6)
The question would be how the blood of the complainant found its way
to
the house of the accused and to be on the sheet on top of the bed
of the accused;
(7)
The inference is irresistible on the conspectus of facts that she was
brought by the accused to his house.
[157]
I reject the suggestion of the accused that the complainant may have
been brought by another person to his
room and that he had left the
room unlocked. The accused did not challenge the evidence of A[...]
N[...]. A[...] had testified
that he went to the accused’s
house for a beer. He found the house locked and they had just met
when they agreed that he
should visit the home of the accused for a
beer. The accused had also not answered the presence of the
complainant’s blood
stains in his sheet. He only sought to
attack the evidence of the DNA on the basis that he did not see the
photographer when he
cut the piece of the sheet. There were no
questions put to Warrant Officer Francis-Pope that she received a
piece of the sheet
that had samples of blood stains.
[158]
The chain of evidence from the time the piece of sheet was cut at the
accused’s place until it reached
the laboratory, was never
meaningfully challenged. The suggestion by the accused that somebody
else must have taken the complainant
to his house and raped her is
farfetched and inherently improbable, and stands to be rejected as
false. The accused himself, when
he was cross-examined on this
aspect, gave a vague answer. A question was put to him as to how does
he explains the presence of
the complainant’s blood on the
sheet in his room and the DNA results and a proposition was put to
him that he was just unable
to answer the question. His answer was
‘if you say so’.
[159]
I am acutely aware that the identification of the accused at the time
when he had been assaulted, and the
community members had already
caught him, is unreliable. I also put no weight to the identification
of the accused during court
proceedings for reasons that it could be
dangerous to rely on such identification. My view is that the
evidence is overwhelming
that the accused’s name was heard by
the complainant when he was shouted at by the person knocking at his
door; the blood
samples of the complainant were found in a sheet
which was on the bed of the accused in his own room; and that there
is no evidence
to suggest that the name of the accused had been
suggested to the complainant nor that the blood stains were planted
in the house
of the accused. I cannot imagine of any person who
would, without knowing, grab a minor and take that minor to
somebody’s
house to rape without even knowing where the owner
of the house is or whether there is anybody in the house.
[160]
The accused has not even suggested that there was a person who had
access to his house and that person knew
his whereabouts on the day
and when he would return home.
[161]
The State witnesses who are siblings and community members, merely
corroborated the report of rape. I cannot
fault their evidence and
for that reason, I accept the evidence of all those State witnesses.
The police officials from the L[...]
Criminal Record Centre and the
investigating officer merely testified about the investigations and
the chain of exhibits, I find
no reason to fault their evidence.
There was no suggestion from the accused that all those witnesses had
conspired and concocted
evidence against him. I found no reason why
the police officials would fabricate the evidence against the
accused. The affidavits
from the laboratory were admitted in terms of
section 212 and the witness, Francis-Pope, was never questioned in
terms of her analysis
of the DNA. I accept the DNA test and the
accompanying affidavits. The State witnesses were credible.
[162]
The DNA
test results corroborated the evidence of the complainant that she
was raped in the room of the accused. I disagree with
the submission
by
Mr
Kekana
,
counsel for the accused, that the evidence of the complainant should
be rejected, for reasons that she is a single witness and
a minor.
There is enough corroboration in support of the complainant’s
version. Corroboration means other evidence which
support the
evidence of the complainant, and which renders the evidence of the
accused less probable on the issues in dispute.
There is no
explanation why the blood of the complainant was in the room and the
bed of the accused. The only conclusion is that
the complainant was
raped in that room. Regarding the complainant being a single witness,
in
S v
Webber
[10]
it was held:
“
The
evidence of a single witness should be approached with caution and
such evidence ought not necessarily be rejected merely because
the
single witness happens to have an interest or bias to the accused.
The correct approach is to assess the intensity of the bias
and to
determine the importance thereof in the light of the evidence as a
whole.”
[163]
In
S
v Sauls
[11]
it was held that there is no rule of thumb test or formula to apply
when it comes to the consideration of the credibility of a
single
witness. The trial court should weigh the evidence of the single
witness and should consider its merits and demerits and,
having done
so, should decide whether it is satisfied that the truth has been
told despite shortcomings or defects or contradictions
in the
evidence.
[164]
The complainant gave a clear and satisfactory evidence. She was
corroborated by the DNA, which is an independent
evidence. The
complainant did not contradict herself in her evidence. There was no
suggestion of bias towards the accused. She
admittedly did not know
the accused. Her family was new in the locality. There are no
suggested bad relations or grudges between
the accused and the
complainant’s family in which it could be said that somebody
suggested the name of the accused. There
are no facts upon which it
can be suggested that the complainant had imagined the name of the
accused. I agree with
Mr Nyendwana
, counsel for the State,
that there are no basis to fault the evidence of the complainant.
[165]
In
S
v Artman & Another
[12]
it was stated:
“
When
dealing these witnesses, the court must guard against the inherent
dangers in these witnesses’ evidence and require some
safeguard
to reduce the risk of a wrong conviction. Accordingly, if
corroboration is relied on as a safeguard, then such corroboration

must implicate the accused in the commission of a crime.”
[166]
I have no doubt that the DNA sufficiently implicates the accused in
that the blood of the complainant had
been found in a sheet which was
in the room and on the bed of the accused. That corroboration should
be enough to support the complainant
who had testified that she was
sexually assaulted in that room and on that bed. The evidence is that
on the same day, blood was
seen on the bed of the accused. The
accused did not deny the presence of the blood, instead, he suggested
that it was his blood
since he had been assaulted.
[167]
In summary, I reject the evidence of the accused for various reasons,
which include that the evidence of
the accused was inherently
improbable. The accused was not a good witness. He was not answering
questions. He was evasive. He avoided
questions that were put to him.
He introduced new evidence during cross-examination of which no
version was put to witnesses. The
explanation in this regard by the
accused that he had informed his legal representative is also
rejected. The accused is a highly
learned person. He was testifying
in English. Many times, he would raise his hand and speak for himself
to this court. I had allowed
him to ensure fairness. He cannot raise
as justification a suggestion that his lawyer did not ask certain
questions or put up his
version. At one stage, the accused asked for
permission to present a long statement, which this court permitted.
[168]
The accused had suggested that L[...] P[...] had a grudge against
him, because he once fired her. There
is no basis for this, because
it was not L[...] who made allegations of rape against the accused.
L[...] merely heard a report
from the complainant. L[...] is not even
a family member of the complainant. She is a neighbour. The witness,
A[...] N[...] had
testified that he met the accused when he was on
his way home. The accused did not dispute the version of A[...]
N[...] in this
regard. Most importantly, when the keys to the room of
the accused were demanded from him in order to enter into his room,
he denied
possession and suggested that they had been lost. When he
was searched, the keys were found in his jacket. It also bears to
mention
that the accused attempted to flee the scene when the
witnesses and the sub-headman asked to enter his room. The question
which
could not be answered is why he ran away, instead of just
opening the room. The irresistible inference in this regard is that
he
knew that some evidence linking him to rape would be found and he
sought to avoid such eventuality.
Findings
[169]
I am convinced that the State has proved its case beyond reasonable
doubt and I do find that the accused
is the person who raped the six
year old complainant on 1 September 2019. I have already
rejected the version of the accused.
The evidence against the accused
is overwhelming whilst his version is fraught with inherent
improbabilities. The accused should
be found guilty of the crime of
rape of the complainant.
Order
[170]
In the results, I make the following order:
(1)
The accused is found guilty for the crime of rape as charged.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the State

:
Adv
Nyendwana
:
The DPP
Mthatha
Counsel
for the Accused
:
Adv
Kekana
Attorneys
for the Accused
:
Legal
Aid
Mthatha
[1]
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5
b
.
[2]
Ndlovu
v S
[2017]
ZACC 19; 2017 (10) BCLR 1286 (CC); 2017 (2) SACR 305 (CC) paras 50 &
53.
[3]
Hereinafter referred to as ‘the Minimum Sentences Act’.
[4]
S
v Trainor
[2002]
ZASCA 125
;
[2003] 1 All SA 435
(SCA);
2003 (1) SA 11
(SCA) paras
8-9.
[5]
S v
Singh
1975
(1) SA 227
(N) at 228.
[6]
S v
Shacknell
[2001]
ZASCA 72
; [2001] 4 All SA279 (A);
[2001] (2) SACR 185
SCA at 194
g-i
.
[7]
R
v Manda
1951
(3) SA 158
(A) 163.
See
also S Van Der Merwe
Principles
of Evidence
3 ed at 551.
[8]
S
v V
2000
(1) SACR 453
(SCA) para 2.
[9]
R v
Blom
1939
AD 188
at 202-3.
[10]
S v
Webber
1971 (3) SA 754A
[11]
S v
Sauls
1981 (3) SA 172
(A), see also
S
v Oosthuizen & Another
2020 (1) SA 561
SCA, see also Principles of Evidence Third Edition
Shwikkard Van Der Merwe at p 552
[12]
S v
Artman & Another
1968 (3) SA 339
(A)