IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: A48/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED
In the matter between:
SYLVESTER MPHO NKADIMENG APPELLANT
V
THE STATE RESPONDENT
Delivered : This judgment was prepared and authored by the Judges whose names
are reflected and is handed down electronically by circulation to the parties/the ir legal
representatives by e-mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be ...... .
JUDGMENT
MOSOPA, J
1
INTRODUCTION
1. The appellant was convicted of one count of Rape in contravention of section
3 of Act 32 of 2007 read with the provisions of section 51 ( 1) of Act 105 of 1997.
As a sequel of such conviction , the appellant was sentenced to life
imprisonment and further an order was made that his name be recorded in the
Sex offenders register because of the fact that he was convicted of a rape of a
minor child, who was 10 years old at the time of the commission of the offence.
2. The appellant was legally represented during his trial matter and pleaded not
guilty to the charge levelled against him. It is because of the sentence imposed
that appellant has an automatic right to appeal such conviction and sentence.
BACKGROUND
3. The evidence that led to the conviction of the appellant can be summarized as
follows, the complainant "KSM" (identity concealed because of the age of the
complainant) was 10 years old when he was raped and 12 years old at the time
of his testimony , he testified with the assistance of an intermediary in the
intermediary room. He testified that on the day of the rape incident, he was
coming from the soccer field, and he came across the appellant who said to
him that he must go with him to his place of residence . He knew the appellant
at the time, as the appellant was in a relationship with his aunt and they were
all staying in the same yard but in different shacks. He did not know the reason
why the appellant said he must go with him to his place of residence .
4. His mother was home at that time and his aunt was not at home as she was in
the villages in Botswana and was staying there at that time. When he met with
the appellant, it was starting to become dark. He further testified that the
appellant forced him to drink liquor which he describes in evidence as Black
Label beer and he consumed three cups, after that he felt drunk.
5. The appellant then pushed him to his bed and told him to take off his T-Shirt,
which he did but he did not tell him the reason why he had to take his T-Shirt
off. The appellant then undressed his trousers and underwear he then inserted
2
his penis into his anus, he said that it was sore and that he also cried. The
appellant then told him that if he screams and if he tells his mother about what
happened, he will stab him with a knife. He testified that he believed the
appellant when he was saying all these things to him. He could not scream as
the appellant had tied a cloth around his mouth. Before the appellant penetrated
his anus, he spit saliva on his hand and then smeared it on his anus. The
appellant put his penis into his anus until the following morning. In the morning
the appellant instructed him to put on his clothes.
6. The complainant then went to his mother's place and the appellant went to
work. He then took a bath and thereafter went to school. When he came back
from school, he found his mother sitting with Mahlatsi, who is his mother's
friend. He was not walking properly at that time, as he was walking with his legs
apart and Mahlatsi requested his mother to examine him to determine what
happened to him. His mother examined him on the anus and that is when he
told her that the appellant did "naughty things" on him and that he raped him,
by inserting his penis into his anus.
7. His mother waited for the appellant to return from work and then she called the
police and the members of the community, and the appellant was eventually
arrested by the police. At the end of examination-in-chief , he was brought into
the courtroom for purposes of identifying the appellant who was made to sit with
other male persons inside the accused dock. He was not informed to look at
the dock before identification and he identified the appellant in that dock
amongst the other people that he was sitting with.
8. In cross-examination , he testified that he knew that his mother was at their
home, because she came looking for him at the appellant 's place and the
appellant indicated to her that he wanted him to sleep over at his place and
thereafter his mother left leaving him behind and went home. When hi~ mother
arrived at the appellant's shack looking for him, the appellant had not yet made
him consume three cups of beer. He further testified that after the appellant
inserted his penis into his anus, he did the up and down movement on him. His
3
mother came in the morning and knocked at the appellant 's shack to wake them
up so that he could come home and bath before he goes to school.
9. When he arrived home his mother noticed that there was something wrong with
him, but she thought that it was due to a medical operation that he underwent.
At school, he could not stand up from the chair and the school called his mother
and told her that he was not doing his schoolwork and that he was not right at
school.
10. The mother of KSM confirmed the love relationship that the appellant has with
one of her relatives, but she described the relationship differently from what
KSM described. She also confirmed that the appellant was staying with them in
the same yard but in a different shack, but currently they are no longer staying
at that place where the incident happened. She also confirmed that her son
went to the soccer field on the day of the incident. She visited her sister that
day and arrived back home at 18h00 and started to prepare food and found that
her son was not present at home. She finished preparing food at approximately
past 20h00 and her son had not yet arrived home. That is when she went to the
appellant 's place of residence to look for him. Initially, the appellant told her that
her son was not there, and she then went to her sister's place to look for him
and could not find him.
11. She went back to the appellant and informed him that she could not find her
son and that she could not go to sleep without knowing where he was. The
appellant then laughed and said to her that he would show her a miracle and
he then called out the name of the complainant and he emerged. He was also
laughing when he emerged, and he had a soccer ball with him and said that
she nearly collapsed when she could not find her son. The appellant asked if
the complainant could spend the night with him as he had already prepared
food.
12. She agreed to the request but informed the appellant that the complainant will
be going to school in the morning, and he said that he will also be going to work.
Her son also did not have a problem spending a night at the appellant 's place
4
of residence. She saw the appellant during the day consuming liquor, but he
was not intoxicated when he requested her son to spend a night with him. The
following day she went to knock at the appellant's shack to wake the
complainant up so that he could not be late for school. She knocked there for a
long time before the appellant could hear her knock.
13. As the complainant was ba!hing, she noticed that as he bent down, he
appeared to be feeling pain, and she thought that it was because of an
operation that he underwent on his stomach. She asked him what the problem
was and whether he was feeling any pain and he said no. It was raining on the
day and when her son left, she could not observe how he was walking. Her son
came back from school earlier than his return time as he usually arrives home
between 15h00 to 15h30.
14. At that time, she was sitting outside her shack together with Mahlatsi and she
observed that her son was not walking properly, he was walking with his legs
apart. She asked him what was wrong and if he was having pain and he said
no. She then became angry and started shouting at him. Mahlatse entered the
shack with him, and she stood at the door, but she could not see them while
inside the shack, but she could hear them when they were talking to each other.
She could hear her son saying to Mahlatse that the appellant inserted his "thing"
into his buttocks, that is when she entered the house and then pulled down her
son's trousers and then started to inspect the complainant. She then saw some
blood and some substance that looked to her like "sperm", she also saw some
blood coming out of the cuts.
15. She was speaking loudly and people started gathering at her place. She took
Mahlatse's phone and phoned the police as her phone's battery died. The
police informed her that they would wait until the appellant arrived from work.
The appellant denied ever raping the complainant. The appellant was then
arrested, and the police took her to the police station leaving her son behind
and they only fetched him the following day. The complainant was only
examined the following day of the rape incident by the police, and he was still
complaining of pains. Before he was taken to the doctor, the complainant
5
bathed first, as he took a bath the following day of the rape incident before he
went to school.
16. Her son told her that when the appellant raped him, he was in possession of a
knife, which he described that when you press a button, the blade comes out,
he also told her about a pink towel and a piece of cloth that the appellant had.
The appellant threatened him with the knife if he screamed. The appellant was
wiping him off with that towel. Prior to this incident, she never encountered any
problems with the appellant , and they were at a certain stage working together
in the same company. Her son never spent a night at the appellant's place in
the past.
17. In cross-examination, she confirmed receiving a telephone call from the
complainant 's school about him not doing the schoolwork but that was after the
rape incident, and it is not correct that it was made on the Monday following his
rape incident on Sunday night. When her son was bathing in the morning after
spending the night at the appellant 's place, when he bent down, he said "eish",
and when she asked him if there was a problem, and he said no. After she
inspected the complainant and went to the police, the complainant did not take
a bath thereafter. It was put to her that the DNA results show that no semen
was detected.
18. The doctor who examined the complainant and compiled a J88 medico-legal
examination report, could not testify as she was suffering from a serious
neurological condition, and she was no longer in service of the department. Her
supervisor Dr Eales from the Department of Family Medicine, University of
Pretoria in collaboration with the Gauteng Provincial Government testified on
her behalf instead. The appellant through his legal representative , did not have
an objection with the J88 medico-legal examination being admitted into
evidence and also Dr Eales testifying pertaining to such report.
19. Dr Eales confirmed that Dr Schehle examined the complainant on 20 November
2018 and completed the J88 medico-legal examination report. That the medico
legal report on clinical findings found the presence of a fresh bruise on the right
6
thigh meaning that the skin was still intact but there was bleeding underneath
the skin which resulted in discoloration. The bruise is attributed to be as a result
of blunt force trauma. The patient told the examining doctor that he bathed,
washed, urinated, and changed clothing since the incident of rape.
20. On anal examination , it was found that there was redness on the skin around
the orifice. This can be caused by multiple things like poor hygiene, some
infection, trauma etc. A tear was noted at 1 o'clock which is a sign of a high
suspicion of trauma in that area. It is a kind of a specific injury that they observe
in sexual assault case, because the buttocks need to be opened in order to
injure that area. Swelling or thickening of rim of the opening of the anus was
noted and the doctor attributed that to sexual assault that happens over a long
time with repeated trauma. The doctor noted no funneling which also signals
repeated penetration . A discharge was noted but not specified. No digital
examination was conducted which is commonly done to adults and not children,
being the insertion of a finger into the rectal canal. No active bleeding was found
on anal examination.
21 . The doctor excluded the possibility of the injury to be caused by constipation as
the injury was not in the inside of the rectal canal but on the outside of the rectal
canal.
APPELLANT'S CASE
22. The appellant testified that on the day of the rape incident, he spent almost the
entire day consuming alcohol and at approximately 18h00 the clouds started to
gather, and he thought about his laundry which he left on the washing line. He
found the complainant in the yard and when he entered his house, the
complainant also entered. He consumed alcohol that he brought but denied
forcing the complainant to consume alcohol. He confirmed that the
complainant's mother came looking for him and he told her that he was not
there and on the second occasion, he told her that he was inside the house.
23. The complainant told his mother that he was going to sleep at the appellant's
place and his mother asked the appellant if her son was going to sleep at his
7
place and he said yes. They then all went to sleep and the following day in the
morning he went to his workplace . He also confirmed that the complainant 's
mother woke him up so that he could go to school and for the fact that he
overslept. When he arrived back from home, the community members started
asking him questions about the complainant and started to assault him and he
was eventually arrested by the police. He denied ever penetrating the
complainant on his anus with his penis.
ANALYSIS AND APPLICABLE LEGAL PRINCIPLE
24. In Rex v Dhlumayo 1948 (2) SA 677 (A) at 705 the court when dealing with
the appeal court's powers stated that;
"Ordinarily the appellant in a criminal appeal has to satisfy the appellate
court that the verdict was wrong, at least to the extent that the trial court
should have had a reasonable doubt as to his gui_lt ...
Where there has been no misdirection on fact by the trial Judge, the
presumption is that his conclusion is correct; the appellate court will only
reverse it where it is convinced that it is wrong."
25. From the above, it is clear that the court of appeal powers are circumscribed ,
only to the extent when the trial court has misdirected itself in its factual findings.
This is so because the trial court has advantages, which the appeal judges do
not have in seeing and hearing witness being steeped in the atmosphere of the
trial. Not only has the trial court the opportunity of observing the demeanor , but
also their appearances and whole personality. (see Rex v Dhlumayo (supra)).
26. In S v Chabalala 2003 (1) SACR 134 (SCA) at 140 A -B, the court when
dealing with the approach to be adopted on appeal, stated that;
"The correct approach is to weigh up all the elements which point
towards the guilt of the accused against all those which are indicative of
his innocence , taking proper account of inherent strengths and
weaknesses , probabilities and improbabilities on both sides and, having
done so, to decide whether the balance weighs so heavily in favour of
the State as to exclude any reasonable doubt about the accused's guilt.
8
The result may prove that one scrap of evidence or one defect in the
case for either party (such as the failure to call a material witness
concerning an identity parade) was decisive but that can only be an ex
post facto determination and a trial court (and counsel) should avoid the
temptation to latch on to one (apparent ly) obvious aspect without
assessing it in the context of the full picture presented in evidence."
27. It is common cause that before the complainant could meet with the appellant
on the day of the incident of rape, there was nothing wrong with him and that
will include the time when the complainant 's mother found him at the appellant's
place. It is also common cause that both appellant and the complainant slept
on the same bed that night of the incident. Also, that wheri his mother woke him
and the appellant up in the morning, she did not realise that there was a problem
with him. The complainant did not make any report of beirig sexually assaulted
by the appellant to his mother, until he returned from school earlier than the
usual time the following day of the rape incident.
28. In the morning as the complainant was taking a bath, when he bent down he
showed signs of feeling pains and he also even said "eish". Still at this stage,
he did not make any report to his mother even though his mother asked him
whether he was fine to which he responded with a "yes". The mother thought
that the signs that her son demonstrated was because of the two groin
operations that he underwent.
29. It is only after the complainant returned from school walking with his legs apart
that, with the assistance of Mahlatse , he mentioned that he was raped by the
appellant. The complainant confirmed the presence of Mahlatse when he
returned from school. Despite walking with difficulty when asked what his
problem was, he answered by saying that he was fine. This can be attributed
to a number of aspects at the time when he was raoed. he was threatened with
a knife and was told not tell her mother about the incident.
30. What is critical is the fact that without the name of the appellant suggested to
him, he said that it was the appellant who raped him. There was no animosity
9
n between the appellant and the complainant as well as the mother. We are alive
to the fact that there was a stage when the complainant's mother was angry
and shouted at him, but there was evidence that can suggest that such conduct
influenced the complainant to falsely implicate the appellant. The appellant in
addition to that, was in a love relationship with a family member of the
complainant and he was also staying in the same yard though in different
shacks. The two shacks were situated very close to each other. Even when the
community members were assaulting the appellant because of allegations
made against him, the mother still intervened and assisted the appellant and
take him to her shack.
31. The complainant is a single witness to the rape incident. Section 60 of Act 32
of 2007 declares irrational and outlaws the fact that the evidence of the child in
sexual offences matters be treated with caution and makes the following
provisions;
"[60] Notwithstanding any other law, a court may not treat the evidence
of a complainant in criminal proceedings involving the alleged
commission of a sexual offence pending before that court, with caution,
on account of the nature of the offence"
However, this does not suggest that the evidence of the child witness must be
accepted with less scrutiny placed to such evidence.
32.Having said the above, section 208 of Act 51 of 1977 also needs to be
mentioned as it provides as follows;
"[208] An accused may be convicted of any offence on the single
evidence of any competent witness, the reliability of the complainant's
witness and its competency also need to be looked at."
33. Criticism was levelled on the fact that the medico-legal report (J88) does not
corroborate the evidence of the mother of the complainant that when she
examined the complainant, she saw a substance which looks like "sperms" and
also that she saw blood on the complainant 's buttocks. This is despite the
conclusive conclusion of the doctor who examined the complainant that he was
10
raped as she noted blunt force trauma which can be caused by the penis,
corroborating the complainant's evidence that the appellant penetrated him
anally.
34. No "sperms" were noted on examination , but no specified discharge was noted.
A tear at 1 o' clock on anal examination was noted by the doctor. The
complainant bathed on the morning after returning from the appellant 's place
and changed his clothes. It is common that despite the mother of the
complainant reporting the rape to the police, he was only taken to the doctor
the following day, his mother was given an instruction that he need not bath
until taken to the doctor for examination . There is nothing to gainsay that the
complainant 's mother acted contrary to that instruction or the complainant
himself.
35. Taking into account the above, it would have been highly impossible for the
doctor to have noted blood and "sperms" on examination , however, the doctor
corroborated the complainant 's mother when she said that she saw cuts on the
anus of the complainant as the doctor noted tear at 1 o'clock. It is for the above
that it is found that the criticism levelled lacks merit and should be rejected.
36. In his testimony the complainant testified that the appellant sexually penetrated
him the whole night without sleeping. This I find to be improbable , but sight
should not be lost of the fact that we are dealing with the evidence of a
complainant witness who was 12 years old when he testified and 1 O years old
when he was sexually penetrated. This sound to be an exaggeration but it is
not in our considered view material to vitiate the state's case. Uncontested
evidence is that the appellant would wake up early which would lead to the
complainant's mother waking the complainant up. The appellant on his version,
states that he overslept which is quite strange considering the fact that he went
to bed while the complainant was playing games on his phone. The incident
might have prolonged until late in the night which slightly confirms the version
of the complainant that it was for a prolonged time but not the whole night.
11
37. The trial court did not misdirect itself when convicting the appellant of rape of
the complainant and it cannot be faulted. There is nothing to suggest that the
evidence of the child cannot be relied on. Items which were apparently used by
the appellant in committing the rape act were found but because of the police
ineptr,ess those exhibits could not be secured to court and used as evidence
against the appellant. The complainant did not contradict himself despite being
subjected to vigorous cross-examination , this evidence was to a large extent
corroborated by his mother.
SENTENCE
38. In S v Boggards 2013 (1) SACR 1 (CC) at para 41, the Constitutional court
when reaffirming the principle that sentencing ordinarily is within the discretion
of the trial court, stated that;
"An appellate court's power to interfere with sentences imposed by
courts below is circumscribed. It can only do so where there has been
an irregularity that results in a failure of justice; the court below
misdirected itself to such an extent that its decision on sentence is
vitiated; or the sentence is so disproportionate or shocking that no
reasonable court could have imposed it."
39. The trial court enumerated the appellant's personal circumstances as follows;
39.1. That when the appellant was arrested, he was 29 years of age
and at the time of sentence he was 31 years old,
39.2. He has been in custody awaiting finalisation of his trial matter for
two and half years as bail was denied,
39.3. He is not married but is the father of two children aged five and
two years old respectively ,
39.4. He grew up without a father figure in his life and was raised by his
mother on her own. His father is unknown to him and,
39.5. He obtained grade 12 in 2014. and he has been temporarily
employed since that time.
40. Also, in the pre-sentence report used in favour of the appellant, the following is
enumerated ;
12
40.1. That he is the third born from a family of five children and was
raised by his maternal grandmother as his mother was employed
and only come home during month end.
40.2. The appellant's children are born of different mothers, and
40.3. The appellant does not take responsibility of the offence and does
not acknowledge guilt or remorse.
41. The pre-sentencing report compiled on behalf of the complainant indicates that
since the incident he has developed deviant and violent behaviours towards his
siblings. He also assaults his younger siblings, the conduct that he did not
display before the rape incident. This aspect was confirmed by the
complainant's mother, which necessitated her to change the school of the
complainant he was attending. He does not longer trust male persons. The
complainant suffered both physical and psychologically because of the offence.
He was left traumatised after the incident and has difficulty in sleeping due to
the nightmares that he experiences. He could no longer concentrate at school
and his schoolwork was affected as he has lost interest in doing his schoolwork .
42. In imposing sentence, the trial court did not find the period the appellant spent
in custody awaiting finalisation of his trial matter consisting substantial and
circumstantial circumstances. Also, the fact that he is a first offender.
43. It is trite that the period spent in custody is not itself a factor constituting
substantial and compelling circumstances, but it must be cumulatively taken
into consideration with other factors as it was in our view, correctly stated in S
v Ngcobo 2018 (1) SACR 479 (SCA) were the following was stated:
Furthermore ; "The test was not whether on its own that period of detention constituted
a substantial and compelling circumstance, but whether the effective
sentence proposed was proportionate to the crime or crime;:; committed ;
whether the sentence in all the circumstances, including the period spent
in detention prior to conviction and sentencing , was a just one."
13
"The period in detention pre-sentencing is but one of the factors that
should be taken into account in determining whether the effective period
of imprisonmen t to be imposed is justified."
44. The complainant suffered abuse at the hands of the person who was supposed
to have protected him at a young age in his life. The complainant had trust on
the appellant and his mother, hence when the request was made by the
appellant that he sleeps at his place, they did not object to such. Despite the
trial court's pronouncements on his guilt, the appellant refused to take
responsibility of his actions and denied raping the complainant. This is
indicative of the fact that the appellant is not a suitable candidate for
rehabilitation. In the result the trial court cannot be faulted on its findings and
the sentence need not be interfered with.
ORDER
45. In the result, the following order is made;
1. Appeal against both conviction and sentence is hereby refused.
I agree
APPEARANCES:
FOR THE APPELLANT MS MMP MASETE
INSTRUCTED BY LEGAL-AID SOUTH AFRICA
FOR THE RESPONDENT ADVOCATE GJC MARITZ MJ M SOPA
JUDGE OF THE HIGH
COURT, PRETORIA
P PHAHLANE
JUDGE OF THE HIGH
COURT, PRETORIA
14
-r
INSTRUCTED BY : THE DIRECTOR OF PUBLIC PROSECUTIONS
Date of Hearing: 21 January 2025
Date of Judgment:
15