S vs Madinga (30/2022) [2023] ZAECELLC 23 (29 August 2023)

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[2023] ZAECELLC 23
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S vs Madinga (30/2022) [2023] ZAECELLC 23 (29 August 2023)

IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT)
NOT REPORTABLE
Case no: 30/2022
In the matter between:
THE STATE
and
NKOSIKHONA MADINGA

Accused
JUDGMENT
Govindjee J
The charges
[1]
Mr Nkosikhona Madinga pleaded not guilty to
various counts of rape, robbery and housebreaking in respect of
incidents that occurred
between 2011 and 2017.
Count 1
[2]
Mr Madinga was charged with rape in that on 5
March 2011 he unlawfully and intentionally committed an act of sexual
penetration
with NN, a 15-year-old girl, per vaginam without her
consent. Mr Madinga made admissions to the effect that he was in a
love relationship
with NN at the time and that they had consensual
sexual intercourse that day. NN testified that she had been walking
with her ex-boyfriend,
Khanyisa Madinga (‘Khanyisa’)
after a sports event held at a school. She estimated that it was
sometime between 18h00
and 19h00. She observed an obstacle in their
path. It was a person, who called her by name. They gave way and
veered in a different
direction in order to pass the person. NN then
noticed that it was Mr Madinga who had called out. She did not
respond.
[3]
Mr Madinga was known to NN because of the
proximity of their villages, but there was no other connection
between them. He instructed
Khanyisa to leave, adding that he wanted
NN. Khanyisa demurred, and NN asked Mr Madinga to leave her as she
was in a hurry and
wanted to leave. Instead, he approached her
wielding a fixed-bladed knife. She retreated and he again told
Khanyisa to leave. Khanyisa
ran away and NN was left with Mr Madinga.
He told her he had longed for her, asking her to accept his love. She
refused to do so.
[4]
NN and Mr Madinga were at that stage close to the
river that separated their villages. He pulled her in the direction
of his home.
When she resisted, he broke a branch form a tree and
assaulted her, causing her to cry. When she had subdued, he threw her
onto
the ground and held her throat when she screamed again. He then
removed her pants and panty, instructing her to lie still and quiet

and to open her legs wide. Mr Madinga then climbed on top of her,
removed his pants and underwear and inserted his penis into her

vagina. When she screamed, he drew his knife and held it close to her
face, placing it near her head while continuing to have intercourse

with her. She continued to cry.
[5]
NN testified that she was raped again when she
tried to walk home.  On both occasions she had been on her back,
a condom had
not been used and she had not given her consent. She had
not been a willing participant and the incident had affected her
badly.
[6]
NN went to her late father’s home after the
incident. She cried upon entering. Her father left her alone and
asked her what
had happened the following morning. When she told him
she had been raped, her father’s initial response was to visit
Mr Madinga’s
home to make enquiries. He was convinced not to do
so by another person and NN was taken to hospital for medical
examination and
to the police so that a case could be opened. A J88
report, accepted into evidence by consent, reflects that the
complainant was
examined at 11h30 on 6 March 2011. Her panties were
described as blood-stained, bleeding was observed at the perineum and
her vagina
was bruised with fresh tears, indicating recent
penetration.
[7]
The complainant could not explain the delay in
bringing the matter before court. She had appeared on several
occasions in a lower
court prior to 2015, and the matter had been
postponed on each occasion. She knew Mr Madinga given the proximity
of their villages
and he knew her by name. They had never conversed
previously, even though Khanyisa was Mr Madinga’s nephew. NN
explained
that she would typically stay at a friend’s home if
she was out after 20h00, as her father would be in bed. On this
occasion,
even though her curfew was long past, she had decided to go
to her father’s home because she had been raped and wanted to

inform him about this. She had been so upset that she could not speak
to him until the following morning.
[8]
As to the incident itself, NN explained that she
had been frightened when she had seen Mr Madinga produce a knife and
approach Khanyisa.
She had not thought about running away. She walked
for some distance with Mr Madinga, while he insisted that they would
go to his
home and that he had long desired her. Eventually he
grabbed and pulled her in that direction while she resisted. She
admitted
that her statement made to the police at the time of the
incident only made reference to a single rape, but insisted that she
had
been raped twice. She had been frightened and upset and thought
she had told the police about the second rape.
[9]
NN denied that she had been in a relationship with
Mr Madinga from January 2011. There had been no agreement, reached
the previous
day, to meet him after the sports event at the school.
She had not seen Mr Madinga on the previous day. Sakhele had not been
present
when she and Khanyisa had come across Mr Madinga. She
vehemently denied that she had agreed to have intercourse with him
outside
his sister’s home and in the bushes. They had not been
near that area and Mr Madinga was lying. She also denied that there

had been an agreement for intercourse to take place at Mr Madinga’s
home, but that she had informed him that this was not
possible
because her father was waiting for her at home. She explained that
her father was an elderly person, who had since passed
away, who was
always at home. She would never have reported the matter to the
police if there had been any agreement on her part
to be with Mr
Madinga.
[10]
Khanyisa was 15 at the time of the incident. He
confirmed that the complainant had previously been his girlfriend. He
had been walking
with her when they had seen Mr Madinga, his uncle.
Mr Madinga had called her and, when she did not respond, pulled her
by the hood
of her jacket. The witness noticed that Mr Madinga was
carrying a fixed-bladed knife in his hand, which he held while
wrestling
with the complainant. When Khanyisa tried to intervene, he
was told that he would be stabbed. Mr Madinga advanced upon him and
slightly scratched and tore the school tracksuit he had been wearing,
on the left chest portion. This prompted Khanyisa to leave
the scene.
Although he testified that he was concerned about the well-being of
NN, he failed to report the matter to anyone. Khanyisa
testified that
he lived alone. He had unsuccessfully tried to locate his younger
brother, to seek his advice, prior to turning
in for the night.
[11]
Khanyisa testified that there was no bad blood
between him and Mr Madinga. He assumed that his relationship with NN
was known to
Mr Madinga and had never heard about any relationship
between Mr Madinga and NN. During cross-examination, Khanyisa stated
that
Mr Madinga had repeatedly used a nickname for NN when he had
called out to her. The knife used by Mr Madinga was a large,
fixed-bladed
knife, approximately 20 cm in length. Khanyisa had not
heard NN cry prior to his departure. He explained that his cell phone
had
run out of battery and could not be charged as there was no
electricity at that time in his village.
[12]
Despite being keen to rekindle his relationship
with NN, Khanyisa’s only attempt to assist her was to seek out
his brother.
He had been relatively young at the time and was
frightened to walk around at night. The nearest police station was
far away and
he had not thought to visit a neighbour. He had not been
thinking clearly, but thought that Mr Madinga would not harm NN since
he knew that Khanyisa had seen him with a knife. He maintained that
he had seen a knife but could not dispute whether NN was on
friendly
terms with Mr Madinga. He denied that Sakhele had been on the scene.
[13]
Khanyisa testified that he had resumed the
relationship with NN sometime after the incident. He had been on good
terms with his
uncle and visited his home after the incident. They
had not discussed what had occurred. On his version, the knife had
been wielded
in his direction, rather than towards NN.
[14]
Mr Madinga testified that the complainant had
agreed to commence a relationship with him at the start of January
2011. They had
met at her home on the day before the incident. Mr
Madinga had wanted her to accompany him to his home to spend the
evening with
him, and she had suggested they do so the following day.
They met after 18h00 half-way to the school. He was with Sakhele.
Khanyisa
was with the complainant and agreed to give them time
together, before leaving. Mr Madinga was not in possession of a knife
and
had not threatened to stab Khanyisa.
[15]
The complainant and Mr Madinga walked on, reaching
the T-junction where the road split to their respective villages. The
complainant
did not want to go to his home for the sake of her
father, who had returned early from a traditional ceremony. Instead
of making
another arrangement, the two walked on in the direction of
her home. Mr Madinga doubted the presence of the complainant’s

father at home and sought confirmation from her. He then added:
‘
I
saw she [was] serious when she said that we can do what we wanted to
do even here.’
[16]
He understood that she had not wanted to spend the
night at his place, which might result in a quarrel with her father.
They had
been far from his home, and much closer to her home. Sexual
intercourse in an open veld followed, after the complainant was asked

to remove her clothing. He then accompanied her home and they
separated on good terms.
Analysis
[17]
The
court is faced with two irreconcilable versions of events. It is
accordingly necessary to evaluate both versions against the
inherent
probabilities taking account of all the evidence.
[1]
This requires findings on credibility of the various factual
witnesses, their reliability and the probabilities.
[18]
The
complainant is a single witness to the alleged rape. Conviction on
the evidence of a single witness is, in terms of
s 208
of the
Criminal Procedure Act, 1977
,
[2]
possible. It is this court’s duty to weigh the evidence,
consider its merits and demerits and, having done so, to decide

whether it is trustworthy and whether, despite shortcomings, defects
or contradictions, the truth has been told beyond reasonable
doubt.
The cautionary rule that the evidence of a single witness must be
clear and satisfactory in every material respect has been
held to be
a guide to the right approach, but is not to be interpreted to
suggest that any criticism, however slender, of the witness’

evidence would justify an acquittal.
[19]
Although
now an adult, the complainant was a child at the time she was
allegedly raped. The imaginativeness and suggestibility of
children
have been held to be only two of several elements that require that
their evidence be scrutinised with care to the point
of suspicion.
[3]
A trial court must fully appreciate the inherent dangers in accepting
such evidence.
[20]
In
this instance the complainant made a favourable impression,
testifying guilelessly about what had transpired during 2011. The

long period of time that has elapsed is a reality that cannot be
ignored. Despite this, her evidence was consistent and clear in
all
material respects. The main issue raised by
Mr
Erasmus
in
argument is that her statement to the police at the time had not
referred to two incidents of rape. The mere fact that there
are
contradictions between the testimony of a witness and their previous
statement does not mean that the witness is not credible.
Courts must
be alive to the reasons for such differences, following the approach
in
S
v Mafaladiso en Andere
(footnotes
omitted):
[4]
‘
The
mere fact that there are self-contradictions, calls for a circumspect
approach by the Court. Firstly, it must be carefully determined
what
the witness intended to say on each occasion, in order to ascertain
whether there is in fact a contradiction and, if so, the
extent
thereof. In this connection the judge of fact must take into account
that a previous statement is not obtained by way of

cross-examination, that there may be language and cultural
differences between the witness and the author of the statement which

stand in the way of correctly recording what was intended, and that a
deponent is seldom if ever asked by a police official to
explain
their statement in detail … Secondly, it must be borne in mind
that it is not every error and not every contradiction
or deviation
that adversely affects a witness’ credibility …
Non-substantial variations are not necessarily relevant
…
Thirdly, the contradictory versions must still be considered and
evaluated in the context of all the evidence. The circumstances
in
which the versions were made, the proved reasons for the
contradictions, the actual effect of the contradictions on the
witness’
reliability or credibility, and the question whether
the witness had sufficient opportunity to explain the contradictions
–
and the quality of the explanations – and the
relationship between the contradictions and the rest of the witness’
evidence,
inter
alia
, must be taken
into account and assessed …’
[21]
The variance in respect of the number of times the
complainant was raped is notable, but must be evaluated in the
context of all
the evidence. Her age when making the statement cannot
be ignored and her evidence that she had been frightened and upset at
the
time the statement was made is probable.
[22]
The probabilities favour that, although she knew
Mr Madinga, she was not in a relationship with him when he accosted
her on the
night in question. He forced her to accompany him alone
before raping her close to a river separating the villages, having
assaulted
her as she described in order to subdue her. This is not to
suggest that the assault was serious or of the kind that would have

left marks that would have been noted in the J88. I am unable to
agree with the argument that the fact that the J88 makes no mention

of this confirms Mr Madinga’s version.
[23]
The complainant’s version of events was
clear in all material respects and is supported by her conduct in the
aftermath of
the incident. She was heavily upset, went to her
father’s home and reported the matter to him the following
morning. She
was medically examined later that day, having not
bathed, washed or changed clothing. Her panties were described as
blood-stained
and the medical report is consistent with forceful
sexual penetration.
[24]
The presence of the knife is also important in
explaining how she accompanied Mr Madinga that evening. Khanyisa’s
evidence
on that issue was clear, and corroborates the complainant’s
evidence that Mr Madinga was carrying a fixed-bladed knife when
he
accosted them. Khanyisa was threatened with the knife and his school
tracksuit torn by it, prompting him to leave the scene.
This is
consistent with the complainant’s version of how she ended up
accompanying him alone. It must be accepted that the
knife was later
used to subdue her when she started screaming while being raped. Mr
Madinga did so by placing it near her head.
There was simply no
reason for Khanyisa to fabricate the presence of the knife. He was on
good terms with Mr Madinga, seemingly
even after the incident, and,
also bearing in mind his lack of action later that evening, had no
special loyalties to the complainant.
Mr Madinga did not suggest
otherwise. When considering Khanyisa’s failure to act, it must
be emphasised that he was also
a child aged 15 at the time of the
incident, and that Mr Madinga was older than him and his uncle.
[25]
Mr Madinga claimed for the first time during his
testimony that the complaint was motivated by another family member,
whose son
had been convicted of murder in a case where he was called
as a witness. He could not square that suggestion with the fact that

the complainant had first reported the matter to her father, the
morning after the incident. He also claimed to have had sexual

intercourse with the complainant on a previous occasion at his home,
despite that not being put to the complainant. Whereas the
version
put was that the complainant and Mr Madinga went their separate ways
immediately after intercourse, Mr Madinga insisted
during his
testimony that he had accompanied her home. That version must be
rejected as not reasonably possibly true. His evidence
on this count
was replete with improbabilities and his testimony conveyed the
impression of a person seeking to tailor his story
to rebut the
state’s case, rather than an honest description of what had
actually transpired.
[26]
On a conspectus of all the evidence, including
consideration of the evidence of the complainant with due caution, as
a single witness
to the rape, it must be concluded that the state has
proved the charge in count 1 beyond reasonable doubt. Mr Madinga’s
version
that he had been in a relationship with the complainant, that
they had pre-agreed to have sexual intercourse and spontaneously
decided to do so in open veld
en
route
to the
complainant’s home is, considering the evidence in its
entirety, simply not reasonably possibly true. In fact, it must
be
accepted that he came across the complainant and Khanyisa by chance,
produced a knife in order to dispatch Khanyisa and raped
the
complainant when she failed to consent to his advances, drawing the
knife and placing it close to her face and head when she
started to
scream, in order to force her into submission.
Count
2
[27]
It was alleged that Mr Madinga unlawfully and
intentionally committed acts of sexual penetration with an
18-year-old girl by having
repeated intercourse with her
per
vaginam
without her consent. Mr Madinga
admitted that he knew the complainant, ‘NB’, averring
that they had been in a relationship
from June 2009, including the
time of the incident. He admitted having had sexual intercourse with
the complainant on the evening
of that day, and the following
morning, with her consent.
[28]
NB testified that sexual intercourse had occurred
four times with Mr Madinga on 13 July 2012. She had previously been
in a love
relationship with him, but this had terminated before that
date. Initially the relationship had been good, but she had
subsequently
suffered abuse. NB had, as a result, told Mr Madinga
that their relationship was over. He had not accepted this.
Approximately
a month had passed by time the incident occurred. By
then, NB had informed Mr Madinga that she was in a different
relationship.
[29]
On the evening in question, NB had been walking
with another female (‘Ms Rona’). Mr Madinga, who was
carrying a sjambok
and a knife, had accosted them. Holding NB’s
hand, he had instructed Ms Rona to leave. When NB refused to
accompany him,
he began assaulting her with the sjambok, causing her
to scream. She was hit all over her body, including her back and
thighs.
NB eventually sat on the ground and refused to accompany Mr
Madinga. He produced a fixed-bladed knife and she rose. He dragged
her towards his house.
[30]
Ms Rona called to Mr Madinga and asked him what
was happening. He told her to leave. NB’s focus was on what was
happening
to her. She was told to undress and get into bed once they
arrived at Mr Madinga’s home. She had not wanted to do so but
complied because of the knife, which was pointed towards her. Mr
Madinga assisted her. When she was completely naked, Mr Madinga

undressed himself.
[31]
Mr Madinga enquired why NB was so quiet,
suggesting that she planned to lay a complaint with the police, which
she denied. He put
on a condom and proceeded to have sexual
intercourse with NB without her consent. The complainant experienced
pain. Mr Madinga
left the room. He returned after approximately ten
minutes and told the complainant to open her legs wide. When she did
not do
so, he opened her legs and raped her again, this time without
a condom. On both these occasions the complainant had been lying on

her back. Mr Madinga again left the room and returned to rape the
complainant again. This time he told the complainant that her
facial
expression should change, as it was clear that she did not want to
have sex with him. She assured him that she would relax,
being
fearful and under the impression that he intended to beat her again.
On this occasion she was told to lay on her stomach.
The complainant
maintained that she was not acting voluntarily, and had already made
up her mind to lay a charge against him the
following day. Mr Madinga
again left the room thereafter, only to return and rape her for the
fourth time, despite her pleas of
fatigue. When he had finished, he
secured the doors in the house in a fashion that would prevent the
complainant from leaving if
he fell asleep, and returned to bed.
[32]
NB testified that she was unable to leave during
the night, as Mr Madinga was not fast asleep. He accompanied her the
following
morning until she requested him to turn back. She intended
to visit her aunt so that she could be accompanied to the police
station
where a case could be lodged. She informed her aunt that she
had been raped by Mr Madinga and a case was opened at a police
station
later that morning. A J88 medical report accepted into
evidence reflects that the complainant was examined during the
morning of
14 July 2012. Her labia minora was bruised and there were
fresh tears on the posterior fourchette and bruising on the fossa
navicularis.
Her vagina was bruised and bleeding.
[33]
The complainant explained that Mr Madinga’s
sister requested her to withdraw the case. One reason for this was
that Mr Madinga
was the only person at that parental home. His sister
also promised to assist the complainant, who had dropped out of
school, by
pleading her case for readmission if she withdrew the
matter. To make good on the promise, Mr Madinga’s sister
suggested
that she accompany the complainant to the school before
they went to withdraw the case. Mr Madinga’s sister in fact
pleaded
with the school for her readmission, leading to the
complainant deciding to uphold her end of the bargain. She testified
that she
would not have withdrawn the matter absent the sister’s
approach and felt bad about her rapes, which had been perpetrated

absent her consent.
[34]
During cross-examination, the complainant
explained that she and Mr Madinga had been involved in a relationship
from 2009, being
from the same village. The relationship ended
sometime during June 2012, approximately a month before the incident.
Mr Madinga’s
attitude to the break-up was to indicate that he
was not a person to be rejected. Thereafter, the complainant did see
him from
time to time and in passing, but had never visited him or
conversed with him. She testified that she was scared to meet him at
that time, based on his statement that he would assault the
complainant if they ever met again.
[35]
The complainant explained that she was on the way
to a traditional ceremony, related to circumcision school, when she
and Ms Rona
met Mr Madinga. Sakhele, whose grandfather was married to
the complainant’s mother, was a friend of the complainant and
was
to join her in attending the function. The complainant and Ms
Rona met him at his parental home prior to the function and spent

approximately ten minutes with him. No alcohol was consumed. They
left while he was locking the door and he indicated that he would

join them on the way. Mr Madinga accosted them a minute or two away
from Sakhele’s place of residence. Sakhele was not on
the
scene. It was dark and Mr Madinga appeared suddenly, causing the
complainant to shiver in fright. He was immediately recognisable.

Without any conversation, Mr Madinga grabed the complainant by the
hand, pulling her away from Ms Rona, whom he instructed to leave.
The
complainant was then hit painfully with a sjambok, resulting in
bruises and black marks on her body, with slight tears. She
had
screamed and cried and heard Ms Rona speaking nearby, asking Mr
Madinga ‘What are you doing to the child?’. In
response,
Mr Madinga had answered: ‘Hey you, go’.
[36]
The complainant did not notice any blood but
observed, the following morning, that her skin had been cut. These
injuries were not
shown to the doctor the following day. The doctor’s
examination concentrated only on the complainant’s private
parts.
The complainant maintained that she had mentioned her other
injuries to the police, who had been communicating with the doctor.

She had only communicated with the doctor directly in response to his
questions relating to the rapes, but admitted that the personal

information appearing on the J88 had emanated from her.
[37]
The complainant testified further that she had
been dragged to Mr Madinga’s home, which was not very far away.
No other people
were observed during that time, including Mr
Madinga’s sister and her boyfriend. The complainant had been
beaten and, when
she tried to slow the pace, he had drawn a knife.
This was close to the home’s gate. Mr Madinga had still been
holding the
sjambok and had released the complainant when he drew out
the knife, causing her to obey his commands. The complainant admitted

that she had indicated to Mr Madinga that she was ‘flexible’
and that he ‘must do whatever he wants to do’
with her.
She explained that this was in response to Mr Madinga’s remarks
enquiring why she was ‘upset and angry’
and suggesting to
her that she was likely to open a case against him. She had been
under the impressing that he would ‘go
and take’ the
knife, causing her to utter words indicating that she was ‘flexible’.
[38]
Mr Madinga’s version was put to her as
follows: he had been with Sakhele when Ms Rona and the complainant
had arrived. At
that stage the complainant was still in a
relationship with him. Sakhele had washed himself and returned and
the four had intended
to go to the function together. They had not
left Sakhele’s home immediately because it was wet, cold and
drizzling. When
they did so, the complainant and Mr Madinga had
walked slightly behind the other two. The complainant had agreed to
accompany Mr
Madinga to his home, so that they could sleep together
given the weather. The complainant and Mr Madinga separated from the
other
two when they came to his home, meeting his sister and her
boyfriend on arrival. Mr Madinga told the complainant that she could

sleep while he spoke to his sister’s boyfriend. This lasted for
approximately ten minutes, and was followed by consensual
sexual
intercourse. The couple then slept until the following morning, and
had consensual intercourse again, before departing for
the
complainant’s aunt’s home, where Mr Madinga left the
complainant, proceeding to the function and becoming intoxicated.

That afternoon, the complainant arrived at the function with some
documentation, but Mr Madinga was unable to talk to her.
[39]
The complainant dismissed much of this version as
a fabrication. She could not explain why her police statement made no
mention
of a sjambok, but insisted she had told the police about
this. Mr Madinga had not been at Sakhele’s home. While it had
been
cold, she could not recall any rain. She and Ms Rona had chosen
to be in Sakhele’s company because of her fear for Mr Madinga.

She had not agreed to go to Mr Madinga’s home and had not met
his sister or her boyfriend there. None of the sexual intercourse
had
been consensual. After raping the complainant, Mr Madinga would
occasionally exit the house and return, but the complainant
did not
know what he did during that time. She had been unable to escape
during the time that he was absent. She stood by the door
trying to
listen for movement, and could hear that Mr Madinga was walking
around close by. The complainant had been unable to sleep
and was too
scared to leave in case Mr Madinga woke up. He was a light sleeper
and the door was secured with nails and a 30-centimetre
iron rod and
bolt, which was not easy to open without waking Mr Madinga. According
to the complainant, she was told that any attempt
would result in her
physical injury. He had not accompanied her all the way to her aunt’s
home, acceding to her request that
he turn back when he had wanted to
do so. The complainant agreed that she had visited the festival on
the afternoon after the incident.
She did not give Mr Madinga the
chance to talk to her, and ignored him.
[40]
The complainant also offered an explanation for
why she had decided to withdraw the matter, which she reiterated
following a successful
application for her recall for purposes of
further cross-examination. Her withdrawal statement was accepted into
evidence and indicated
that no rape had occurred, the charges having
been instigated based on the complainant’s fear of her aunt.
The evidence adduced
to explain the withdrawal was based on the way
in which Mr Madinga’s sister communicated with her, which
frightened her.
His sister was elderly and the complainant had
assumed that her words would carry more weight and would convince the
authorities
to readmit her to school. The sister had also suggested
that Mr Madinga would be taken away from East London, if the case was
dropped,
so that the complainant could attend school freely. She had
not spoken to the complainant in a friendly manner. The complainant

also felt inclined to ‘disappear’ given her fear for him.
He had assaulted her previously, resulting in a separate
complaint to
the police. Nonetheless, her family and Mr Madinga’s sister’s
family had met at the complainant’s
home. Her step-father was a
family member of Mr Madinga and the families had determined to
resolve the issue amicably. It had been
agreed that Mr Madinga should
be taken away from the complainant. But once away from the family
members, Mr Madinga’s sister
had spoken differently. The main
reason for withdrawing the case had been Mr Madinga’s sister
approach to her family and
the promise that she would intervene with
the complainant’s school to have her readmitted. His sister had
also been present
in the office at the time the withdrawal statement
had been made to the police.
[41]
The complainant testified that she had given birth
to a child, fathered by Mr Madinga, during 2014. That child had since
passed
away and had been conceived without the complainant’s
consent. When asked why this had not formed part of her testimony,
and in response to the contention that the two had been in a
continuous relationship, the complainant stated as follows:
‘
No,
the accused was continuously on occasion attacking me sexually. There
was a time I laid a charge … the same day he came
to me and
said “the police are not staying with you and they are my
friends and I’ll continue doing what I’m
doing” –
I then decided it was no use as I’m not getting any
assistance’.
[42]
The complainant had eventually travelled to the
Western Cape to escape Mr Madinga, with the assistance of her
mother’s marital
family. She explained that she had been unable
to do so at an earlier stage as she had no family members in other
provinces.
[43]
During re-examination, the complainant clarified
that her indication that Mr Madinga could ‘do anything’
to her was
a statement of last resort, made because she felt that she
would be assaulted otherwise. He had in fact continued to assault her

even subsequent to the case being opened in July 2012. She had a
boyfriend from another village at the time the child had been

conceived during 2014. Mr Madinga would keep her captive if he came
across her in the absence of any other people.
[44]
Ms Rona testified that she had accompanied the
complainant on the way to the function on 13 July 2012. While they
were not friends,
they were from the same village and school and had
grown up in the presence of Mr Madinga, who was from the same
village. The two
had passed Sakhele’s residence en route. He
was relaxing and they requested him to accompany them, being scared
to walk on
their own. In particular, the complainant feared Mr
Madinga. Sakhele agreed to accompany them, and promised to catch up
with them
after locking his premises. Mr Madinga appeared. He and the
complainant had previously had an affair and the complainant was
concerned
that he would make her miss the function, where she was to
‘share a blanket’ with another person. The witness was
uncertain
whether the complainant and Mr Madinga were a couple at
that time. Mr Madinga addressed her, saying that she should ‘lend

him’ the complainant. She agreed and the two moved away, while
she sat and waited. She heard a scream, from a distance of

approximately 25 metres, and made an enquiry from Mr Madinga, who
told her to leave. The witness decided to leave because it was
dark.
The complainant stopped crying and Sakhele appeared. The complainant
and Mr Madinga were still some distance away, and their
voices could
not be heard. The witness explained to Sakhele that the complainant
had been taken away by Mr Madinga. Sakhele indicated
that he would
not do anything given that no screaming could be heard. She and
Sakhele proceeded to the function, returning the
following morning,
by which time the incident had become known.
[45]
The witness did not see Mr Madinga again that
evening or the following morning. She did see the complainant the
following day and
was shown the marks on her back. The complainant
had informed her that she had been beaten by the accused, who had
‘wanted
sexual intercourse with her forcefully, then he beat
her and then had sex with her’. She had been told that this was
on four
occasions. The complainant was scared and had wanted to
leave.
[46]
Ms Rona testified that Mr Madinga and the
complainant had been engaged in altercations during their
relationship, and that Mr Madinga
had assaulted the complainant
previously. The witness had not had a problem with Mr Madinga
previously, and could not comment on
his state of sobriety. She
testified that he had been carrying a sjambok that evening, and that
the complainant had told her that
he had used this on her, also
carrying a fixed-bladed knife.
[47]
During cross-examination, the witness explained
that she knew about the relationship, and that Mr Madinga went around
at night.
He had not appeared to be angry when he asked her to
‘borrow me’ the complainant when they met that evening.
She could
hear some conversation, seemingly an argument, when she
stepped aside. The witness was concerned as the complainant appeared
not
to be agreeing with Mr Madinga, who was being forceful. She heard
her tell Mr Madinga that she did not want him anymore and that
she
was leaving for the function, but could not hear a response. She
denied that Mr Madinga had been present at Sakhele’s
house when
they arrived there, maintaining that she and the complainant had left
while Sakhele had been locking his home. The journey
to the function
passed Mr Madinga’s place of residence. The witness had no
knowledge of what transpired subsequently, but
maintained that she
had seen Mr Madinga carrying a sjambok. She had noticed that the
complainant was in trouble when they had met
Mr Madinga, but had
assumed that everything was in order once they had become quiet,
adding as follows:
‘
I
have no other choice. I was worried but I couldn’t go there to
his house and take her away. I had no means to meddle with
that
situation.’
[48]
Nomthandazo Sokuyeka testified that she was NB’s
aunt, living with her during July 2012. NB had arrived at the home
during
the morning and reported that she had been raped four times by
Mr Madinga. The complainant had been crying and had bruises on her

back, which she said had been caused by Mr Madinga with a sjambok
when she refused to accompany him, and which she showed to the

witness. The complainant had informed the witness that she had been
forced to sleep with Mr Madinga because he had drawn a knife.
The
complainant had requested the witness to accompany her to the police
station. After reporting the matter they had been referred
to a
doctor. Mr Madinga was known to the witness because her sister, the
complainant’s mother, had married into his family.
According to
the witness, the complainant’s relationship with Mr Madinga was
not good and he had assaulted her previously.
Ms Sokuyeka had
suggested to the complainant’s mother that NB should stay with
her, given the fear for Mr Madinga.
[49]
Ms Sokuyeka indicated during cross-examination
that only two bruises had been clear. These had been on the
complainant’s back.
The witness had undressed her and observed
that her body did not look ‘right’. These injuries were
shown to the examining
doctor, who had commented that she was badly
injured. The witness testified that she personally also told the
doctor about these
injuries. The doctor never examined the
complainant’s back and had concentrated on her private parts.
The situation was,
however, not normal, as both the complainant and
Ms Sokuyeka had been crying. According to the witness this might have
resulted
in the injuries not being recorded.
[50]
Mr Madinga confirmed that he had been in a
relationship with the complainant since May 2009. On the night of the
incident, he had
been with Sakhele at the latter’s home, when
the complainant and Ms Rona arrived. The four decided to proceed to
the function
together. After Sakhele had taken a bath, and once the
rain had settled, they left through the gate. Mr Madinga walked ahead
with
the complainant, with Sakhele and Ms Rona some 15 metres behind
them. It was then that the complainant agreed to accompany Mr Madinga

to his home. They waited for the others near the gate of his home and
he informed Sakhele of their plan. While conversing, he looked

towards his home and saw his older sister with her boyfriend (‘Mr
Ndileni’). They were inside the premises in front
of the
rondavel. His evidence proceeded as follows:
‘
As
I opened the gate, my sister’s boyfriend called out for Sakhele
and started a conversation with him. I went inside, opened
my flat
and went inside with N … after we entered the rondavel, I left
N there and went out to my sister’s boyfriend
there at the
rondavel…he said that he was going to buy me some beers …
I said that that was not a problem but that
he should allow me to
inform N … I got to her [after two minutes], informed her that
I am just going to spend a few minutes
[with my sister’s
boyfriend] … She said I can go … I got to my sister’s
boyfriend; we consumed four beers
… it was the two of us, my
sister and my sister’s son … after consuming beers, I
went back to my flat. [I was
gone] between 35-40 minutes.’
[51]
Mr Madinga’s evidence was that he had closed
only the lower half of the stable door when he first left the
complainant in
his room, which was for a period of two minutes. He
then returned to her to inform her that he would be spending time
with Mr Ndileni.
He then asked her to close the (entire) door from
the inside and seemingly informed her that he would knock when
returning. He
was specific in testifying that he had told her to
close the door to prevent the wind coming in. After returning, Mr
Madinga and
the complainant proceeded to have consensual sexual
intercourse thrice before the following morning, when he accompanied
her towards
Ms Sokuyeka’s village. As his relationship with her
was not good, he turned around halfway, hugging the complainant
before
leaving her. He was surprised to learn of the allegations of
rape. Charges with withdrawn on his second court appearance and he

resumed a relationship with the complainant during 2013. He was then
informed that the charges had been instigated by Ms Sokuyeka.
[52]
During cross-examination, Mr Madinga explained
that he had requested a moment alone with the complainant as they
were leaving Sakhele’s
home, while he was busy locking up. He
refuted the complainant’s version in part on the basis that she
could have screamed
for help when she entered his home.
[53]
Mr Z Ndileni testified on his behalf. He confirmed
that NB had been in a relationship with Mr Madinga. The witness had
visited his
wife on the day of the incident and was drinking beer
with her while seated in the front of the rondavel when Mr Madinga
and the
complainant had arrived around dusk. His evidence proceeded
as follows:
‘
On
their arrival, they went into the gate talking with each other. And
they went to the back room of [Mr Madinga]. After a while,
he left
his room and he came to me. On his arrival he joined me in drinking
this liquor. We then went inside the rondavel and finished
the beers
I was drinking. He left and went back to his room.’
Analysis
[54]
As with count 1, the same cautions must be applied
to the testimony of the complainant. She was also a single witness to
the alleged
rapes and, although not a child, only 18 years of age at
the time. Again, an inordinate amount of time has elapsed since the
incident.
[55]
The court is again faced with two irreconcilable
versions of events. The complainant’s overall version of events
finds support
in the testimony of both Ms Rona and her aunt. Mr Rona,
in particular, impressed the court as a witness who had no reason to
deliver
false testimony. She was more of an acquaintance of the
complainant’s than a friend and certainly did not attempt to
embellish
her recollection and version of events. While she may be
criticised for not having done more to assist the complainant at the
time,
she testified with apparent honesty about her recollection of
events, and her decision not to interfere with a volatile situation.

The complainant was herself an excellent witness, openly
acknowledging the circumstances that resulted in her previous
withdrawal
of charges against Mr Madinga, which I accept. Her
testimony about her fear for Mr Madinga at the time, which is linked
to the
reason for seeking to be accompanied by Sakhele, was emphatic.
Considered together, their evidence of the material events was
coherent
and consistent and, as will be illustrated, accords with the
probabilities.
[56]
It must be accepted that the complainant and Mr
Madinga had, at the very least, a tumultuous relationship. It is
improbable that
he was in the company of Sakhele when the complainant
and Ms Rona passed by. Instead, the evidence suggests that he
accosted the
two, wielding a sjambok, and an altercation ensued,
causing the complainant to cry out. The presence of the sjambok and
confirmation
of the complainant’s cry supports the
complainant’s version that she was forced to accompany Mr
Madinga to his home,
and that he produced a knife, which Ms Rona
would not have seen earlier, to ensure her compliance. The absence of
other people
at Mr Madinga’s home at the time that they arrived
there, and the complainant’s account of the repeated sexual
intercourse
that followed, is equally probable, together with her
reasons for not trying to escape.
[57]
Considering the evidence in its entirety, it must
be accepted that the complainant, as per her testimony, did not
mention the injuries
caused by the sjambok to the doctor the
following day. Ms Sokuyeka’s testimony in that respect,
including that she had told
the doctor about those injuries, is
rejected. Despite this finding, and notwithstanding her latent bias
in favour of her niece,
I accept her testimony that the complainant
reported her rape upon arrival, and that she showed her bruises to
her, informed her
about the sjambok and knife and requested Mr
Sokuyeka to accompany her to the police station. Those aspects of the
evidence are
supported by either the complainant or, in respect of
the presence of the sjambok and the display of bruises it had caused
on her
back, Ms Rona. Non-consensual sexual penetration is also
consistent with the contents of the J88. Notwithstanding application
of
the necessary caution to the complainant’s testimony, her
evidence that she was raped on four occasions by Mr Madinga is
accepted, beyond reasonable doubt, as being true.
[58]
The fundamental discrepancies between Mr Madinga’s
version and that of his witness support this assessment. For example,
Mr
Ndileni made no mention of a discussion with Sakhele, or the
presence of his wife’s child, which formed part of Mr Madinga’s

testimony but was not put to the complainant. On the version put to
the complainant, Mr Madinga had told the complainant she could
sleep
while he spoke to Mr Ndileni. The impression created was that she had
proceeded without him. His testimony explained that
he had taken her
into his room and left her there for a couple of minutes, returned to
her and then left her for approximately
35-40 minutes. Importantly,
on his own version he had, when departing on the second occasion,
told the complainant to close the
entire door. On Mr Ndileni’s
version, the to-and-fro had not occurred. He also testified
implausibly, considering the lapse
of time, about having observed the
exact manner in which the stable door had been half closed before Mr
Madinga joined him to drink.
He explained that this was because Mr
Madinga’s room was opposite where he had been in the rondavel.
Nonetheless, it contradicts
Mr Madinga’s version of events in
this respect too. Mr Ndileni’s testimony lacked candour and his
demeanour was not
that of a person testifying honestly about events
within his recollection. His bias in favour of Mr Madinga, given
their family
connection, cannot be ignored. Aspects of his version
were improbable and contradicted established facts. Considering the
quality,
integrity and independence of his stated recollection, it
must be concluded that Mr Ndileni was an unreliable witness whose
testimony
may be rejected.
[59]
Mr Madinga’s version of events on this count
therefore stands alone. Considering the evidence of Ms Rona, and the
quality
of her testimony in support of the complainant’s
version, coupled with the favourable credibility assessment of her
evidence,
Mr Madinga’s version of events appears to be wholly
improbable. This is evinced by the contradictions in the defence
version
put to the complainant, compared to Mr Madinga’s own
testimony and that of Mr Ndileni. On the version put to the
complainant,
Mr Madinga had walked with her slightly behind Sakhele
and Ms Rona when they left Sakhele’s home. When he testified,
the
procession had reversed its order. There were also
inconsistencies as to where he had spoken to the complainant about
accompanying
him to his home.  His version as to what happened
near his home is even more unlikely, involving Sakhele leaving the
company
of Ms Rona to have a conversation with Mr Ndileni while he
took the complainant inside. That version was never put to the
complainant.
Nor was his version that they had only had sexual
intercourse thrice and not four times, or that the charges had in
fact been instigated
by Ms Sokuyeka. These issues cumulatively affect
the credibility of the version presented, which, it must be
concluded, is not
reasonably possibly true and is rejected. Whether a
relationship resumed after the night in question does not alter this
assessment
of the evidence.
Counts 3-5
[60]
Mr Madinga was acquitted and discharged in respect
of these counts in terms of
s 174
of the Act.
Counts 6 and 7
[61]
The accused is charged with unlawfully and
intentionally breaking into and entering the house of the
complainant, SF, on 29 January
2017, with the intention to commit
rape, and rape. It is alleged that Mr Madinga repeatedly raped the
24-year-old complainant per
vaginam without her consent having broken
into her home.
[62]
The complainant, who is now 30 years of age,
testified that she lived alone in a two-room brick house, containing
one bedroom and
a lounge. She had closed and locked the door and
windows of the house before going to bed on the evening in question.
A young man
arrived, saying ‘sister, sister, open otherwise
I’ll shoot you’. He would run to the back of the home and
then
be quiet. During this time the complainant tried to send a ‘call
back’ request to a man in a nearby village, in the
hope that he
would arrive quickly and assist her.
[63]
The complainant was unable to recognise the voice
of the person outside her home. The man opened the large bedroom
window, which
had been tied with a piece of wire. He entered the
home, grabbed the complainant and threw her out of the window.
Outside, the
assailant, who was a stranger to the complainant, was on
top of her. He held her by the throat and dragged her towards the
gate.
The complainant pleaded with him not to hold her throat,
promising to accompany him. He took her to nearby veld, also asking
her
clan name, and indicating that he did not want anybody who may be
looking for them to observe what they were doing. The complainant
was
on her feet when she said to him that she would not cry or scream.
[64]
The assailant insisted that they should continue
walking, even when the complainant expressed fatigue and pain. At
some point she
said to him that whatever he wanted to do should occur
where they stood. The complainant explained that she had done so
because
it was night time and she was concerned that he would injure
her. He then told her to sit and undress. She was wearing an
underwear
dress and T-shirt and, knowing his intentions, asked him if
he had a condom. The assailant placed a fixed-bladed knife on the
ground
not far from the complainant, lowered his pants and underwear,
put on the condom and penetrated her per vaginam. She asked him why

he had not approached her and requested a love relationship instead
of forcing her when she did not want to have sexual intercourse
with
him. The complainant confirmed that she had not voluntarily agreed to
intercourse taking place, and that she was questioning
him about his
conduct while it occurred, explaining as follows:
‘
I
was asking why are you doing such a thing and you are so young, you
took me out there, you could have approached me and we agree
on terms
and then we could have agreed on a love relationship.’
[65]
When asked whether she would have agreed to
have intercourse with the man if he had approached her in that
fashion, however, the
complainant indicated that she would never have
done so. Intercourse was painful. The perpetrator removed the condom
once he had
finished and placed It in his pocket. The complainant
pleaded with him again, with reference to a proper approach and
relationship.
He requested a call back to prove that she was serious,
taking her phone and doing this himself.
[66]
The complainant subsequently pleaded with the man
to ‘go up to the house and do what we have done here, nicely
here in the
house because I’m not even aware of the area where
you have brought me’. She explained that she had done so
because
she was in a strange place and did not know his intentions.
The man agreed and they walked normally, talking casually to one
another.
Sexual intercourse followed in the home, after the man was
asked to wear a condom. The complainant testified that this was
involuntary
on her part. The man fell asleep and the complainant took
a photograph of his head and shoulders, intending to use this to
identify
him. He awoke and asked what time it was before leaving the
premises through the door. It was 04h30. The complainant broke down

once he had left, screaming and crying, shocked, as she put it, by
what had happened to her throughout the night.
[67]
The complainant’s sister-in-law had received
a call back request from the complainant and called her later that
morning. The
complainant reported what had occurred. Her mother also
called her, having heard from her sister-in-law what had transpired.
Family
members arrived from the village and took the complainant to
the police station, where a case was opened against the accused. The

photograph that had been taken was shown to people from the village.
Mr Madinga’s uncle, one Zenayi, was able to identify
Mr Madinga
as the person in the photograph. The complainant reiterated that she
had only given into his requests for sex out of
coercion.
[68]
During cross-examination, the complainant
explained that she had married a man named Unathi through arrangement
and that her husband
worked in Gauteng at the time of the incident,
which was a month after the marriage. She had been new to the area
and was only
acquainted with people living on the premises.
[69]
The complainant had not realised, prior to the
incident, that her window, which was steel-framed, was tied with
wire. She had never
inspected it prior to the incident. The man had
been able to pull the wire open, without assistance, from the outside
as it was
not tied tightly to the frame. The complainant had been
inside the home at the time and seen him do this. When the
complainant
paid attention to the window, subsequent to the incident,
she realised that the wire had been stretched.
[70]
Given the nature of the dwelling, the complainant
had been unable to make any escape at the time that she heard the man
speaking
to her from outside, threatening to shoot her. It was
approximately 02h00 and she had been woken from her sleep by the
noise from
outside. She explained that once inside, he had pushed her
up against the window before throwing her out, resulting in a fall
and
abrasions on her arm. The complainant had also suffered nail
marks on her neck from when her assailant had dragged her. She had

been barefoot and her feet were painful as she was dragged to the
bushes. The doctor or nurse who subsequently examined her had
not
noted any injuries other than to her private parts, and the
complainant could not recall if she had told the person about such

injuries.
[71]
The complainant explained that she had
deliberately pretended as if she would engage in a love relationship
with her attacker during
the incident. When they returned to the
dwelling she had entered through the window and opened the front door
for the man. When
asked why she had done so, she indicated as
follows:
‘
[It’s]
obvious. I’m under duress. … nothing else I can do. He
will again use that window and come to me if I
don’t do that.
And no one can help me. And then he will kill me.’
[72]
The person had wanted to have sex with her once he
entered her home for the second time. She maintained that she would
not have
done so willingly and felt under duress. The main reason for
this, she explained, was the knife that had been drawn and placed
next to her while the attacker had raped her in the veld, even though
she did not know where that knife was when he subsequently
re-entered
the premises.
[73]
The other homesteads were, according to the
complainant, far away. She did not know her neighbours and was
fearful that she would
be hurt if she was caught seeking help during
the time that the man had slept. She had no airtime, which resulted
in her deciding
to send call back requests earlier that evening.
[74]
The complainant refuted Mr Madinga’s
version, which proceeded on the following lines. It was put to the
complainant that Mr
Madinga had passed by the home previously,
conversed with the complainant and discovered that she was unhappily
married by arrangement,
which had occurred through pretence. The
complainant had given him her cell number and the two had
communicated telephonically,
resulting in a relationship. It was the
complainant that had invited Mr Madinga to the home that evening and
made arrangements
with him. As the front door key had been misplaced,
the complainant had opened the window from the inside. Mr Madinga had
assisted
the complainant to find the key, after which sexual
intercourse had taken place by consent. This had been pre-arranged by
way of
a whats app chat. Mr Madinga had fallen asleep and the
complainant had taken a photo of him to show him how deeply he had
been
sleeping. The complainant had laughed when showing this to him.
It was almost sunrise and he had left, after which the complainant

had attended a village festival. Mr Madinga was shocked to hear that
he was being sought in connection with the rape of Unathi’s

wife. In refuting this version, the complainant added the following:
‘
At
that moment when he was there at the window, I knew someone was
there, but the name Nkosinathi Madinga I only started knowing
it when
members of the community came the following day and when the police
came to me about the case and mentioned his name. I
did not know him
when I saw him at the window.’
[75]
The complainant vehemently denied that the sexual
intercourse had been consensual, pointing to the fact that it would
be strange
for Mr Madinga to have arrived at 02h00. She highlighted
the state of the window when the police had investigated, and that
she
had led them to the place in the veld where she had been raped.
[76]
Ms Nontsikelelo Mxhamli, the complainant’s
sister-in-law, confirmed that she had received a call back request
from the complainant
on 29 January 2017. When she called the
complainant she heard her crying. The complainant told her that an
intruder had arrived,
taken her and ‘pulled her into a hill’.
The witness dropped the phone and ran to communicate the incident to
her mother.
She told her mother that the complainant was crying and
that her mother should call her. Her mother did so in her presence,
also
calling two uncles who lived in the village to report the
matter. During cross-examination, the witness confirmed that she had
only seen the call back request at approximately 05h00, some three
hours after it had been made.
[77]
Ms Zandile Mpongo, the complainant’s
mother-in-law, confirmed Ms Mxhamli’s testimony as it related
to her. The complainant
had told her telephonically that an intruder
had entered through her window. One of the people she had called,
Usinayi Madinga,
was her cousin and an uncle of the accused, whose
father was the witness’ cousin. The witness explained that the
complainant
was new to the area and did not know people in the
vicinity She had not mentioned the name of the intruder when speaking
to the
witness. Once the witness saw a picture taken by the
complainant, she realised that the intruder was Mr Madinga.
[78]
Mr Bongani Tengwa testified that he had received a
call from Ms Mpongo and met with the complainant, who was his
nephew’s
wife. The complainant appeared frightened and scared.
He had observed damage to the premises and called the police. The
complainant
had explained that the intruder had entered by opening
the window, which had been tied with wire. She said she had been
raped outside
of the house at a nearby hill. The man who had been
with Mr Tengwa was Mr Madinga’s uncle and confirmed that the
photograph
that had been taken depicted his face, after which the
police were called.
Analysis
[79]
It is common cause that the complainant and Mr
Madinga had repeated sexual intercourse on 29 January 2017, and that
the complainant
had taken a photograph of him at some point during
the early hours of that morning. The key issue is whether this
intercourse occurred
with the complainant’s consent. On Mr
Madinga’s version, he had been invited to the complainant’s
home and arrived
at approximately 21h00, after which repeated
consensual intercourse took place. The complainant had been coerced
into reporting
the incident as rape only because Mr Madinga’s
uncle had seen him leaving her home, and there was bad blood between
their
families.
[80]
The court is again required to resolve the
contrasting versions, applying the necessary caution to the testimony
of the complainant,
who was a single witness to the alleged rapes.
The complainant conveyed the impression of a person testifying
honestly. Her version
finds support in the testimony of Ms Mxhamli,
who was also a good witness, and, to a lesser extent, that of the
other state witnesses
as to what really occurred. Ms Mxhamli received
a telephonic report of the incident from the complainant, and advised
her mother
to contact the complainant, who had been crying.
Significantly, her evidence confirms that the call back request had
been sent
at approximately 02h00, the time that the complainant
indicated that the incident had commenced. That evidence, led by both
the
complainant and Ms Mxhamli, was left unchallenged. Yet Mr Madinga
testified and maintained that he had arrived at approximately
21h00.
[81]
The probabilities are overwhelmingly in favour of
the complainant’s version of events in respect of these counts,
including
the manner in which Mr Madinga entered her home. It is
common cause that the window was fastened with a wire and,
considering the
evidence in its entirety, this manner of affixation
facilitated forced entry. The messages that she sent to her
sister-in-law in
the middle of the night are consistent with a person
who was desperate and fearful and unable to obtain assistance from
people
in the area. The photograph that she took was not as a
souvenir of a secret, consensual tryst. She clearly hoped to be able
to
use it to identify a person hitherto unknown, who had broken into
her home and raped her. The J88 medical report is also supportive
of
forceful sexual penetration, reflecting the presence of genital
injuries. It is so that the J88 makes no mention of the abrasions

that the complainant alleged she suffered when pushed out of the
window. While there may be various explanations for this omission,

this is a factor that must be considered as part of the overall
assessment.
[82]
Accepting Mr Madinga’s version is fraught
with difficulties. Had the complainant been interested in Mr Madinga
since their
alleged meeting, it is unlikely that the two would have
waited so long to meet again, bearing in mind that the complainant
lived
on her own and that it was suggested that they had been in
regular telephonic contact. Even accepting that this was so, the pace

of events on the night in question is improbable. Mr Madinga omitted
to put to the complainant aspects of the version that emerged
during
his testimony. This includes that the two had tied the wire to the
window again after he had entered through it. Why they
would have
spent time bothering to look for the key together was unexplained. He
could simply have exited through the window. In
any event, it is
improbable that the complainant would not have made arrangements to
find the key and be ready to open the security
gate for Mr Madinga
had she truly been awaiting his arrival. Mr Madinga’s version
that the complainant had, upon his arrival,
taken out the clothing
that she had worn when first arriving to that home, tried this on and
then voluntarily undressed before
sexual intercourse occurred, was
not put to the complainant and appears to be completely fanciful. Mr
Madinga’s testimony
regarding his lack of reaction to the
photograph taken of him is also highly improbable. So too was his
testimony about the manner
in which the police had handled his mobile
phone, considering the importance of that object to support his
version of events when
confronted with allegations of rape. Likewise,
the testimony regarding the reasons for opening the case, involving
Mr Madinga’s
uncle, was farfetched and again not put to the
complainant. Other more minor issues support this assessment. The
defence failed
to put Mr Madinga’s version that the complainant
had given him a slightly different name when they had first met.
During
cross-examination in respect of count two, he maintained that
he and the complainant had remained in telephonic contact with one

another after he had been released following arrest. Considering that
this was not put to the complainant, it appears to have been
a
fabrication. Mr Madinga’s demeanour, when testifying in respect
of these counts, was, perhaps unsurprisingly given what
has been
described, also not that of a person speaking truthfully. He spoke
softly, looked down frequently and appeared unconvinced
by his own
account, which must, considering the preceding assessment of the
evidence, be rejected as not reasonably possibly true.
[83]
The shortcomings in the complainant’s
testimony are of the kind that might be expected considering the
nature of the events
in question, and the period of time that has
elapsed. This includes the J88’s failure to detail any bodily
injuries other
than those to the labia minora, in contradiction to
the complainant’s version. It may be accepted that those
injuries were
minor, and that the focus of the medical examination
was on the alleged rapes. The complainant testified truthfully about
the manner
in which Mr Madinga was able to access her home, and the
presence of the knife that caused her to subject herself to him in
the
veld. No doubt with her own safety in mind, she had the presence
of mind to engage with him and cause him to take her to the relative

safety of her home, where she was raped again. It may be accepted
that she may have spoken to Mr Madinga with a level of familiarity
in
order to coax him to take her back home. Nonetheless, her version
accords with the probabilities and the balance weighs so heavily
in
favour of the state’s case that any reasonable doubt about Mr
Madinga’s guilt in respect of these counts may be
excluded.
Counts 8-11
[84]
The state alleges that the accused raped two
ladies, MF and LT, on 23 August 2017, also robbing them of their
property with aggravating
circumstances in that a knife was wielded
in the process.
[85]
LT testified that she had grown up with MF and
that they had become close friends. She and MF had been together and
required transportation
on her birthday during August 2017 and had
approached a taxi. The accused and another man were seated in the
backseat. The driver
indicated that he could take the ladies to
Morningside and that the two men would alight on the way to Amalinda.
[86]
LT requested the driver to stop at McDonalds, the
men at the back indicating that they had no objection to this. At
McDonalds the
two men exited the vehicle and stood talking towards
the back of the car before re-entering. The driver indicated that the
men
would alight at Rosedale but started driving aggressively as they
turned into that area. At some point the person sitting next to
the
accused produced a knife. The driver was speaking and there was a
commotion. The accused, who was seated next to LT, told her
to be
quiet. The vehicle turned into an open parking place. The accused
grabbed LT’s bag and the other person went to the
front seat
and took the belongings of MF, before robbing LT of her phone. The
accused was sitting on the bonnet of the car as the
other man dragged
MF out of the car towards a bushy area, leaving LT in the car with
the driver.
[87]
Approximately 10 to 15 minutes later the person
who had dragged MF away opened the door where LT was seated and
dragged her out
of the vehicle. She could see MF walking back to the
vehicle, crying and hysterical, followed by the accused, who had
risen from
his seat on the bonnet some time earlier. The other man
held a knife to LT’s neck and raped her before calling the
accused,
who did the same.
[88]
The two men subsequently ran into the bush and the
driver left the two ladies ‘in the middle of nowhere’.
While walking
home, MF explained to LT what had happened to her. She
had been raped twice by the accused’s companion, followed by
the accused,
who had a dangerous look in his eyes and who took his
time in raping them.
[89]
The accused’s face had been extremely close
to LT during the time she was raped by him, and was clearly
recognisable:
‘
I
did see him, he [was] right next to me, and even when [they] got out
at McDonalds I could see his face.’
Visibility at McDonalds
had been aided by a floodlight. The accused, who had been seated in
the middle of the backseat, had been
wearing a K-Way beanie, and a
sweater or windbreaker with a backpack, while the other man was
skinnier. There was less visibility
as the vehicle travelled into
Rosedale. By time the vehicle stopped, and at the scene of the rapes,
it was darker, but not dark
because of moonlight and the outside
lights of the nearby houses. The witness explained that ‘You
could see a person that
is right in your face, [a] person [that is]
10 metres away you can’t see their features, [it was] not as
bright’.
[90]
LT explained the various items, including her
phone and money, that were taken from her by Mr Madinga and his
friend. Given their
demeanour and long conversation outside
McDonalds, she opined that the two knew each other and had worked
together. Once the other
man had drawn the knife, the accused had
been quick to grab LT’s bag and tell her to keep quiet. The two
had also been observed
leaving the scene together.
[91]
During cross-examination, LT testified that she
had consumed one drink before boarding the vehicle. She had clear
sight of the accused
during the journey, as he was seated next to
her. There was lots of light at McDonalds in the parking lot and the
men had stood
chatting for approximately 15 minutes, and were
visible. LT explained her recollection as follows:
‘
If
someone raped you that picture doesn’t go away. That picture I
want to forget but I can’t, so I do [have a mental
picture of
the face of the perpetrators]…’
[92]
MF testified that she and LT had flagged down a
taxi on the day in question. MF had sat in front with the driver and
LT had sat
behind her with two young men to her right. The ladies
requested the taxi to take them to a McDonalds drive through, and LT
ordered
food. During this time the two male passengers stood towards
the back of the vehicle, underneath a lamp post, and possibly
urinating.
Their faces were visible to MF. The driver remained in the
vehicle. Near Rosedale, one of the passengers produced a knife and
instructed
the driver to stop the vehicle near a busy area. One of
the men robbed MF of her possessions and took her bag. He pulled her
out
of the car, pushed her towards the bushes and proceeded to rape
her
per vaginam
.
He did so after instructing her to undress, pushing her to the
ground, instructing her to lie there, undressing her when she was

slow to do so, and by pressing his forearm on her neck when she
wrestled to get on her feet.
[93]
Once he had finished doing so, Mr Madinga came to
that spot and forcefully penetrated MF without a condom. The
complainant explained
that she was able to recognise him even though
the lighting was dim because his face had been very close to hers at
the time of
the incident. He had been one of the two passengers that
she had observed during the motor vehicle journey, and who had been
present
at the McDonalds.
[94]
The accused had been inside the car when MF had
been robbed. At that time there were no street lights, but lights
from nearby houses
faced towards the bushy area where the incident
occurred. The accused was visible to MF. At the place where the rape
occurred,
the lighting was not good, a lamp from a nearby house
providing some light. She had been able to recognise the accused
because
of the proximity of his face to hers. The men had, according
to MF, worked together during the robbery. The way that they spoke
to
one another, also at McDonalds, created that impression, and the
first person who had raped her had also spoken to the accused,
just
before the accused raped her.
[95]
MF explained that she had observed the men in the
back when she spoke to the driver of the taxi before boarding the
vehicle in Oxford
Street. She explained that a light shining in front
of an Oxford liquor store shone towards the vehicle, which was
situated at
its entrance. Even though that light shone upwards at a
different height to the vehicle, MF testified that it was not that
dark
and she was able to observe the face of the accused. While
conceding that the lighting inside the car was poor, MF indicated
that
she had observed the men at McDonalds because they had stood
under a lamp. They had exited the vehicle when the order was placed

and stood waiting under the lamp. MF indicated as follows:
‘
No,
I saw them because I turned around and looked back when LT was asking
[the driver] where are these gents going to get off because
you said
they are going to get off on the way – and I could see them
there in that light … I looked to those guys
direct.’
[96]
MF explained that the distance between her and the
men at the time she observed them was not far. While their backs were
towards
the vehicle, their faces had turned towards one another and
she also observed them as they approached the vehicle to re-enter.
She explained that she had viewed them with suspicion and was
concerned about when they would leave the vehicle.
[97]
At some point during the journey MF had turned
around and observed the accused holding LT on her shoulder, and
telling her to be
quiet. The other man had a knife. The accused had
been seated in the middle seat and she saw the side of his face. The
car stopped
in a dimly lit area outside of a house with a floodlight.
MF indicated that she could recognise the accused at that point too,
as he had also been outside the car when the other man had taken her
phone. By time the second man raped her, her spectacles had
fallen
off and, given the darkness, it was difficult to see what was
happening. Nonetheless, MF maintained that she could identify
Mr
Madinga as one of the men who had raped her. Her spectacles, she
said, were only to assist with viewing objects in the distance,
and
there was enough time to make a positive identification. She added,
during re-examination, that she had been in the presence
of the men
for a period of about an hour during the journey. Her eyes had been
open when she was raped and she testified that it
was a face she
could never forget.
[98]
Mr Madinga denied being one of the people who had
perpetrated the crimes in question. His version was that he was the
victim of
mistaken identity. He had only been identified because he
was seated in the dock and had not been subjected to an
identification
parade.
Analysis
[99]
The
witnesses who testified were single witnesses as to their alleged
rape. Again, it is necessary to apply caution before accepting
their
evidence. Where the identity of the perpetrator of a crime depends on
human observation and is in dispute, the court must
exercise further
caution in carefully considering all the surrounding circumstances
before deciding whether the state has proved
beyond reasonable doubt
that the accused is the perpetrator. Reliability of observation is
also of fundamental importance. As the
Court held in
S
v Mthetwa:
[5]
“
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is
not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various
factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation, both as to
time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused’s
face, voice, build, gait, and dress; the result of identification
parades, if any; and, of course, the evidence
by or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case
are not individually decisive,
but must be weighed one against the other, in the light of the
totality of the evidence, and the
probabilities…”
[100]
Both
witnesses had no prior knowledge of Mr Madinga and identified him in
the dock in the absence of a prior identification parade.
There is
ample authority for the proposition that a dock identification by
itself, without more, has limited evidential value.
The position is
different where in-court identification by a complainant is based on
independent recollection by a credible witness
who had ample
opportunity for accurate observation at the scene.
[6]
[101]
Notwithstanding application of the necessary
caution, it is clear that LT was certainly one such witness. She was
sitting in the
back of the vehicle with the two men throughout the
journey, and had ample opportunity to observe them exit and re-enter
the vehicle
at McDonalds, where the lighting was good and the scene
was relatively slow-moving. Their presence was at extremely close
quarters,
also when her bag was grabbed and, particularly, when she
was raped. She was an excellent witness who testified clearly in
respect
of the events that occurred and her identification of Mr
Madinga. She had no difficulty in acknowledging that she had consumed
alcohol and that it was darker at the site of the rape. She
demonstrated an insightful appreciation of the men’s friendship

based on their demeanour and behaviour prior to committing the
offences. She explained why she could not forget the faces of the

perpetrators in convincing fashion, even though there was no single
distinguishing feature to describe.
[102]
LT’s identification of Mr Madinga as one of
the men who had raped her finds support in MF’s evidence. MF
had been seated
in the front of the vehicle and had less opportunity
to observe the two men. She could only have glanced at them briefly
when speaking
to the driver before boarding the vehicle and
acknowledged that the lighting inside the vehicle was poor. But she
was suspicious
of them and anxious as to when they would leave the
vehicle after the McDonalds stop and observed them there, where the
lighting
was better. It must be accepted that she therefore paid
attention to them, even though she could only see the side of the
face
of the person seated in the middle of the backseat when she
turned around during the journey. Even though her spectacles had
fallen
off, and in dim lighting, she had the opportunity to observe
the men who raped her at close quarters and was unshaken in
identifying
Mr Madinga as one of the perpetrators. The entire
incident had lasted approximately an hour and her testimony supports
the state’s
case against Mr Madinga.
[103]
It is necessary to weigh both witnesses’
evidence carefully before making a determination as to their evidence
as to identification.
Both were clearly honest in seeking to put
words to their recollection, but more is required considering the
factors enumerated
in
S v Mthetwa
.
LT’s impressive testimony, in particular, coupled with the
evidence of MF, in the light of the totality of evidence and

probabilities, results in the conclusion that the state has succeeded
in proving the identity of Mr Madinga, as one of the two
men who
raped both the complainants on the night in question, beyond
reasonable doubt.
[104]
The evidence demonstrated that it was the other
man that produced the knife in the vehicle. In the absence of charges
relating to
robbery with common purpose, and considering the elements
of this crime, I am unable to conclude that the state has proved its
case in respect of the alleged robberies with aggravating
circumstances, so that Mr Madinga is found not guilty of counts 8 and

9.
Counts 12-17
[105]
Mr Madinga was charged with five counts of robbery
with aggravating circumstances and rape of MM on 2 September 2017
near Beacon
Bay. The alleged aggravating circumstances refer to the
wielding of a knife at the time that the accused unlawfully and
intentionally
assaulted the complainant as well as Yonwabo Sifo,
Somila Tanase, Zintle Mazaka and Liziwe Vanda.
Mr
Mgenge
conceded that the state had
failed to prove the charges of robbery detailed in counts 13, 14, 15
and 16, so that Mr Madinga is found
not guilty on those counts. As
will become apparent, there is also insufficient evidence to convict
Mr Madinga of robbery with
aggravating circumstances in respect of
MM, so that he is found not guilty of count 12. The remaining issue
pertains to the alleged
rape.
[106]
Mr Sakhumzi Benya (‘Mr Benya’)
testified that Mr Madinga was a childhood friend. The two knew one
another for more than
a decade and had also met in East London, when
Mr Benya had driven a taxi. The men had met during the early hours of
2 September
2017 in Quigney. Mr Madinga had been with two other men,
Lunyiko and Sabelo Mafanya (‘Sabelo’), in a separate
vehicle,
and he had been with his friends. Lunyiko was known to the
witness and used to spend time with him, but they were no longer on
speaking terms. Sabelo, the witness, and a man known as Onke, were
all from the same village area.
[107]
Lunyiko and the witness had started an argument
outside an establishment known as ‘Blue Horse’ on the
evening in question.
Mr Benya subsequently drove to the BP garage.
Onke wanted to obtain something to drink. He returned with Lunyiko,
Sabelo and Mr
Madinga.
[108]
Lunyiko suggested that they should travel to
Beacon Bay. Ladies in the vehicle driven by Lunyiko, unseen by the
witness at that
stage, apparently did not want Sabelo and Mr Madinga
to travel with them, so the witness was asked to transport the two
men in
his vehicle. An agreement was reached and Mr Benya transported
the men in exchange for the promise of petrol money and alcohol.
[109]
Mr Benya’s vehicle, following Lunyiko’s
vehicle, and now occupied by his friend Ande, Zola, Sabelo, Mr
Madinga and Onke,
developed a puncture close to the Sasol garage en
route to Beacon Bay. Sabelo and Mr Madinga alighted and started
running after
Lunyiko’s vehicle, which was some distance away
at that point, with hazard lights that were on but disappearing into
the
distance. Onke was subsequently sent to look for help, and later
returned alone. It was approximately 02h00 and the witness did
not
see Mr Madinga again that evening. He had met him once after the men
were subsequently arrested but had not spoken to him.
[110]
Mr Benya explained during cross-examination that
there was no bad blood between him and the accused before or after
the incident,
although they were not as close as they had been and he
ignored Mr Madinga and did not chat to him like before. He had been
intoxicated
that evening but could still remember what had
transpired. This included Lunyiko and the accused coming to his
vehicle outside
Blue Horse and speaking to him. He was certain that
Ande, Onke, Sabelo, Zola and Mr Madinga had been in the vehicle from
Fleet
Street en route to Beacon Bay, Ande seated in the front while
the witness drove. He denied Mr Madinga’s version that he had

spent the entire evening with his girlfriend at home, maintaining
that he knew him well and was certain he had been present.
[111]
Ande Bhungane testified that he was a friend of Mr
Benya and knew Mr Madinga through him from 2015, when they would
drink together.
Mr Bhungane knew Mr Madinga’s residence and his
sister. He had been with Mr Benya on the night in question in
Quigney, drinking
with Onke and Zola. He had seen Mr Madinga, who was
in the company of Sabelo and Lunyiko, sometime between 10 and 11pm at
Blue
Horse. The witness knew Mr Madinga and Lunyiko and met Sabelo
for the first time that evening. It had been some time since he’d

seen Mr Madinga, having previously met him two or three times over
weekends. He emerged from a red vehicle driven by Lunyiko, who
was a
taxi driver. The visibility was good at the time the occupants of the
red vehicle approached in order to greet the occupants
of the car in
which he was seated with Mr Benya.
[112]
Later during the evening the witness observed
Lunyiko in Fleet Street opposite the BP garage, where they were
parked. Lunyiko and
Mr Benya arranged that Mr Benya would transport
Sabelo and Mr Madinga because Lunyiko was overloaded. Some ladies had
paid for
a trip and would not agree to be squeezed into his vehicle.
Mr Benya agreed and they were later joined by Sabelo and Mr Madinga,

whose faces were clearly visible, and proceeded to Beacon Bay,
following Lunyiko’s vehicle.
[113]
The witness explained that he was intoxicated but
was able to recognise and observe everything that had occurred. Mr
Madinga, he
said, was sober. Lunyiko’s vehicle was still
visible on the N2 highway when their vehicle had a puncture. While he
and Mr
Benya were trying to telephone Lunyiko, Mr Madinga and Sabelo
alighted from the vehicle at approximately midnight or 01h00, and
ran
towards Lunyiko’s vehicle, which was situated at a walking
distance. Mr Madinga and Sabelo never returned to the vehicle
in
which Mr Benya and the remaining passengers were seated. The witness
testified that he was certain that it was Mr Madinga who
had been
travelling with them that evening and that there was no bad blood
between them during the two years they had known one
another.
[114]
ZM was one of the ladies in the vehicle driven by
Lunyiko when he claimed to have run out of petrol. Two minutes after
the vehicle
stopped, two men opened the back doors of the vehicle and
robbed the occupants of their possessions, while one man proceeded to

rob MM, who was seated in the front seat. The witness described the
goods that were taken from her, and explained that her assailants
had
been carrying a screw driver or knife. The person with MM pulled her
out of the vehicle and they were all told to exit the
vehicle in
order to be searched. MM was taken to nearby bushes, and the others
had followed. It was clear to the witness that MM
was being raped by
a man who was on top of her and clearly having intercourse with her
close by. The other ladies were told that
they were also going to be
raped in the bushes.
[115]
ZM pointed out Mr Madinga as the person who raped
MM. She explained that she had seen him at the time when they had
been taken to
the bushes, and that after he had raped MM he had come
to the others while they were seated, asking who was to be raped
next. The
driver had asked him not to do so. Mr Madinga had tried to
make conversation after having raped MM, asking where the ladies
lived
and their names. Being right next to them, he had been observed
clearly and could be identified, also considering that there was

possibly a full moon, cars passed by the spot every ten minutes and
it was not very dark. He had been working with the other men
in
robbing the female occupants of the car.
[116]
During cross-examination, the witness explained
that they had been left with Mr Madinga, who was asking them
questions, when the
other men left the scene of the crime. They had
been with him for about 10 minutes, and that is how she was able to
recognise him
in court. The witness could not recall whether she had
told the police that she would be able to recognise the perpetrators,
and
an identity parade had not been called. Despite acknowledging
that the event was traumatic, that it was dark, that she had consumed

liquor and that the incident had occurred a few years previously, the
witness indicated that she was certain in her identification
of Mr
Madinga. In response to Mr Madinga’s counsel’s suggestion
that her description of the person was vague, she testified
as
follows:
‘
I
understand. But I saw his face at that time. I’m sure of that,
the guy’s face … I understand where you are
going …
[but] I know for a fact that I’m not making a mistake…
there is not even a slight possibility that
he is not the person –
he is the man that I saw that night … I saw his face …
which is the same face I’m
seeing in court today.’
[117]
ST was another of the ladies in the red vehicle on
2 September 2017. She confirmed much of the testimony of ZM and took
time to
provide a description of the people who had approached the
vehicle from the outside. She had been able to observe the person who

had opened the front passenger door of the vehicle when they had been
taken out of the motor vehicle. He was not tall, did not
have a small
body, was average in height and was ‘darkish’ in
complexion. His focus had been on the front passenger
seat. He had
asked MM her clan name and told her that he was fond of her as she
was not causing any trouble, before taking her
out of the vehicle and
body searching her. LV had also been taken out of the vehicle,
followed by the witness, who managed to run
away after having been
searched and touched. She was caught by one of the other men and
taken back to the crime scene. On the way,
she saw MM lying on her
back, her dress pulled up towards her face, with a man on top of her
and raping her. She noticed that it
was the same person that had
searched MM and pointed out Mr Madinga as the perpetrator.
[118]
ST testified that there was a sense of ‘clearness
and light’ at the scene, and that motor vehicles drove past the
area,
casting some light. She had seen Mr Madinga clearly when she
had been taken out of the vehicle, and there was sufficient light to

observe him raping MM. Part of the reason for this, she explained,
was that the terrain was slightly inclined, so that motor vehicles

passing by shone their light on the scene enabling her to see.
[119]
The witness conceded during cross-examination that
not many vehicles were travelling on the road at that time of the
day, and suggested
that only a half moon was visible. It was not
pitch dark when she had been sent out of the vehicle and was standing
outside. She
had told the police that the man who had been with MM
was not at the police station sometime later, and was certain she had
informed
them that she was able to identify him. She had spoken to ZM
after the incident and they had agreed that they would both be able

to recognise the perpetrator of the rape. When asked how she was able
to still do so, her response was as follows:
‘
I
did not see this person under normal circumstances where I went to
buy bread. This person robbed me of items and spent a few minutes
in
my presence, causing trauma. What would make me to forget him …
I will never forget it … [it was the ] worst thing
that
happened to me.’
[120]
ST indicated that she had consumed little liquor
that evening, and had eaten. She had informed the police that she
would be able
to identify the assailants, even though this did not
appear in her written statement. The women had been made to sit
underneath
some bushes and Mr Madinga had returned and been with them
for a few minutes.
[121]
LV testified that she had been a passenger
together with other ladies travelling to a club in Beacon Bay, also
describing what occurred
when the car stopped on the highway,
apparently running out of petrol. Two men had been engaged in robbing
the back seat occupants
of their possessions, and the witness
explained the possessions taken from her. Another male was in the
front seat, ‘busy
with MM’. While the witness indicated
that she did not see him properly, she was able to indicate that he
was chubbier than
the other men and of average height, wearing a
short-sleeve shirt, beanie and flared, oversized pants. She recalled
that it had
been a full moon and that certain events were lit up by
passing cars. The chubbier person who had seemingly robbed MM had
taken
her away, and brought her back. MM had not said anything about
what had occurred, but had reported at the petrol station, sometime

later, that she had been raped by the person who had robbed her. It
appeared to the witness that the three men had been acting
in
cahoots. Only some of the possessions taken from her were eventually
recovered.
[122]
Dr Teeka Kharel confirmed that he had examined MM
on 2 September 2017, and completed the J88 report. She had been sad,
distraught
and worried. She had superficial eternal injuries,
possibly caused by dragging. Gynaecological examination revealed
fresh injuries,
likely caused within the past 12 hours, consistent
with sexual penetration.
[123]
Mr Madinga acknowledged that he was familiar with
the two men who testified that they knew him and placed him near the
scene on
the night of the incident. He had grown up with Mr Benya and
had met Mr Bhungane through him. He described Mr Benya as having been

his friend. He struggled to explain the reason that the two had
testified against him, but alluded to various possibilities. His

first explanation in this respect was particularly difficult to
understand, suggesting that items taken from the complainants had

been taken to his place of residence by Sabelo and Lunyiko. He had
requested his neighbour to keep the items in return for payment
upon
collection from these two men. Secondly, he sought to dispute their
testimony on the basis that they had continued to keep
each other’s
company even after the incident. Thirdly, he mentioned some
involvement of Mr Benya’s brother in his own
brother’s
passing and suggested that their relationship had soured during June
2016. He also offered an alibi explanation,
saying that he had been
asleep with his girlfriend on the night of the incident.
Analysis
[124]
It may be accepted that MM was raped on the side
of the road sometime after Lunyiko stopped his vehicle. ZM and ST had
both observed
this and Dr Kharel confirmed that she had been sexually
penetrated. The factors identified in
S
v Mthetwa
are to be applied to the
evidence of ZM and ST in answering the question whether the
perpetrator was Mr Madinga. Both these witnesses
testified that they
observed him raping MM, who did not testify. LV could only provide a
general description, broadly in support
of parts of their description
of their ordeal and identification of Mr Madinga, but without
identifying him directly. Her evidence
does support the general
visibility and lighting at the time, including the positive effect of
passing vehicles in that respect.
[125]
Both ZM and ST had been seated in the backseat of
the vehicle. It must be accepted that their initial focus would have
been on the
men that robbed them of their possessions, and that their
observances occurred during the course of a traumatic experience.
This
affects the outcome in respect of count 12. MM was taken away
from the vehicle towards nearby bushes. ZM had seen Mr Madinga both

then and when he had returned, enquired who was to be raped next and
made conversation with the ladies. She had been close to him
and had
the opportunity to observe and identify him. Although it must be
accepted that it was dark, and that she had consumed liquor,
there
was sufficient moonlight and light from passing vehicles for her to
do so. Importantly, she had been in close proximity to
him for
approximately 10 minutes and was convinced that she was identifying
the correct person.
[126]
ST, who had not consumed much alcohol, confirmed
much of her testimony. She was able to recall aspects of what the
person busy with
MM had discussed with her and could recall his
appearance. She later observed the same person on top of MM and
raping her. The
visibility and light were sufficient and her
explanation for recalling the face and build of the person in
question was convincing.
Her testimony was clear and coherent and
supports ZM’s evidence that Mr Madinga had returned to the
women after raping MM
and had then been in their presence for a few
minutes. At that time the scene was relatively static.
[127]
Any doubts about the identification of Mr Madinga
are removed when considering the accepted evidence of Mr Benya and Mr
Bhungane,
and the poor assessment of Mr Madinga’s contrived
attempts to avoid admitting that he was on the scene.
[128]
Mr Madinga conceded that he would continue to
fraternise with Mr Benya between June 2016 and the incident and that
there had been
no visible signs of any problem. Yet he continued to
concoct an explanation to gainsay the testimony against him, despite
this
not having been put to Mr Benya. There was no serious
explanation offered for why Mr Bhungane would have lied under oath to
implicate
him. Considered together, and despite having been under the
influence of alcohol at the time, it is apparent that both men
observed
Mr Madinga as they described that evening. Even leaving
aside the evidence of the complainants who testified, for present
purposes,
their testimony was consistent in material respects and
accords with the probabilities. Both conveyed the impression of
speaking
truthfully about events within their recollection. They both
had adequate opportunity to identify Mr Madinga clearly, bearing in

mind that both men knew him well. Considering the extent of their
acquaintance, there could be no mistaking him. Mr Benya certainly

spoke to him, and Mr Bhungane, if not participating in the
discussion, overheard parts. There can be no doubt that it was Mr
Madinga
and Sabelo that were eventually transported in Mr Benya’s
vehicle, and that, once it punctured, they alighted and ran towards

the vehicle transporting the complainants in the early hours of the
morning.
[129]
Their evidence, together with that of the three
complainants who testified, is such that it must be accepted as
proven beyond reasonable
doubt that Mr Madinga was the person who
raped MM as charged. His various attempts to distance himself from
the scene, including
the supposed alibi, were implausible,
unsupported and likely the figment of his imagination. Those versions
must each be rejected
as not reasonably possibly true.
Order
[130]
It is ordered:
1.
Count 1:        The
accused is found guilty of the crime of rape (of ‘NN’) as
charged;
2.
Count 2:        The
accused is found guilty of the crime of rape (of ‘NB’) as
charged;
3.
Counts 3-5:   The accused is found not
guilty;
4.
Count 6:        The
accused is found guilty of housebreaking with intent to commit rape
as charged;
5.
Count 7:       The
accused is found guilty of the crime of rape (of ‘SF’) as
charged
6.
Counts 8-9:   The accused is found not
guilty;
7.
Count 10:      The
accused is found guilty of the crime of rape (of ‘MF’) as
charged;
8.
Count 11:      The
accused is found guilty of the crime of rape (of ‘LT’) as
charged;
9.
Counts 12-16:The accused is found not guilty.
10.
Count 17:      The
accused is found guilty of the crime of rape (of ‘MM’) as
charged.
A. GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
22,
23, 25-26, 29-31 August 2022
1
September 2022
23-25
& 30 January 2023
1-11
May 2023
21-24
August 2023
Delivered:
29
August 2023
Appearances:
Counsel
for the State:
Adv
S. Mgenge
Director
of Public Prosecutions
Makhanda
046 602
3000
Counsel
for Accused:
Adv
A. Erasmus
Legal
Aid of South Africa
King
William’s Town
043 604
6600
[1]
See the judgment
of Wallis JA in
S
v BM
2014
(2) SACR 23
(SCA) para 8.
[2]
Act 51 of 1977
(‘the Act’).
[3]
S v Mafaladiso
en Andere
2003
(1) SACR 583
(SCA) at 593
e
–
594
h
,
as translated in BR Southwood
Essential
Judicial Reasoning
(2015)
(LexisNexis) at 77, 78.
[4]
Ibid.
[5]
S
v Mthetwa
[1972]
3 All SA 568
(A);
1972 (3) SA 766
(A) at 768A-C.
[6]
See
S
v Bailey
2007
(2) SACR 1
(C) para 17.