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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A116/2014
1. REPORTABLE: YES / NO
2. OF INTEREST TO OTHER JUDGES: YES/NO
3. REVISED: YES/NO
DATE 28 March 2025
SIGNATURE
In the matter between:
THABO KGWETE Appellant
and
THE STATE Respondent
_______________________________________________________________ ____
The matter was heard in open court . The judgment is handed down electronically by
circulation to the parties' legal representatives by email and uploading to Caselines.
The date of the judgment and order is deemed to be 28 March 2025.
JUDGMENT
____________________________________________________________ ________
Mazibuko AJ (Munzhelele J concurring)
INTRODUCTION
[1] The appellant was arraigned before the Springs Regional Court ("the trial
court") on one count of rape of a minor child, aged eight years, read with the
provisions of section 51(1) of Schedule 2 of the Criminal Law Amendment
Act1, ("the CLAA") , and one count of contravening section 49(1) of the
Immigration Act, 13 of 2002.
[2] The appellant was duly informed of the implications of section 51(1) of the
CLAA in relation to the offence he faced, and he confirmed his understanding
thereof. He was legally represented throughout the proceedings.
[3] In respect of the charge of contravening the Immigration Act, the appellant
pleaded guilty and was accordingly convicted by the trial court on 5 October
2023. He pleaded not guilty to the charge of rape and provided no
explanation. On 22 November 2023, he was convicted of rape.
[4] On 16 February 2024, the trial court sentenced the appellant to two years'
imprisonment for contravening the Immigration Act , and life imprisonment for
rape. Additionally, he was declared unfit to possess a firearm. His name was
entered into the National Register for Sex Offenders in terms of section 50(2)
of the Criminal Law (Sexual Offences and Related Matters) Amendment Act2.
Furthermore, he was declared unsuitable to work with children in terms of
section 120 of the Children's Act3.
[5] Aggrieved by the trial court's decision, the appellant filed a notice of appeal
against both conviction and sentence. He has an automatic right of appeal to
the High Court upon giving notice in terms of section 10 of the Judicial Matters
Amendment Act4.
THE DECISION OF THE COURT A QUO
[6] The issue before the court a quo was whether the complainant had
satisfactorily identified her assailant.
1 Act 105 of 1997.
2 Act 32 of 2007.
3 Act 38 of 2005.
4 Act 66 of 2008.
[7] The trial court was satisfied that the complainant was a truthful witness,
notwithstanding that, in certain respects, her testimony was unsatisfactory. It
held that the contradictions in her evidence were not material to the extent
that they warranted its rejection. Despite her young age, her testimony was
found to be reliable in all material respects. The trial court rejected the
appellant’s version, finding him to be a dishonest witness.
GROUNDS OF APPEAL
[8] In respect of the conviction, the appellant contends that the trial court erred in:
[8.1] finding that the State proved its case beyond a reasonable doubt;
[8.2] rejecting the appellant's version as not being re asonably possibly true,
despite partial corroboration by the complainant's stepmother;
[8.3] failing to attach sufficient weight to material contradictions in the State’s
case;
[8.4] finding the complainant to be a credible witness; and
[8.5] concluding that the identity of the appellant was proven, despite the
presence of two security officers who were on duty at M[...] Flights.
[9] In respect of the sentence, the appellant submits that the effective sentence
of life imprisonment is unduly harsh and induces a sense of shock. The trial
court erred in:
[9.1] failing to impose a lesser term of imprisonment;
[9.2] over -emphasising the seriousness of the offence and the interests of the
community at the expense of the appellant’s personal circumstances;
[9.3] finding that no substantial and compelling circumstances existed to
justify a deviation from the prescribed minimum sentence; and
[9.4] failing to take into account that, at the time of the offences, the appellant
was still in his youth and a first -time offender.
ISSUE
[10] The issue for determination in this appeal is whether the trial court correctly
found that the complainant had properly identified her assailant on the night in
question and whether it correctly applied the cautionary rules in assessing the
evidence of the complainant, who was both a child witness and a single
identifying witness.
STATE’S CASE
Conviction
[11] To establish the appellant’s guilt, the State relied on the evidence of the
complainant, Ms. T[...] M[...] , Ms. Palesa Gladys Mofokeng, and Constable
Jessica Mogadime.
[12] It was common cause that the complainant was eight years old at the time of
the offence. The State’s application in terms of section 170A of the Criminal
Procedure Act5, ("the CPA") was granted, allowing the complainant to testify
via closed -circuit television (CCTV) with the assistance of an intermediary,
Ms. Geraldine Ngobeni.
[13] In terms of section 164 of the CPA6, the complainant was duly admonished
before giving evidence.
Testimony of the Complainant
[14] The complainant testified that at approximately 20:00, she was playing with
her sisters on the first floor of M[...] Flats. The passage was unlit. Her sisters
then left for the second floor, where their home was situated. At that moment,
an unknown man approached her from behind, grabbed her, and pulled her
into his flat, identified as flat number 10.
5 Section 170A of the Criminal Procedure Act (CPA): (1)(a) ‘Whenever criminal proceedings are
pending before any court and it appears to such court that it would expose any witness — (a) under
the biological or mental age of eighteen years; to undue psychological, mental or emotional stress,
trauma or suffering if he or she testifies at such proceedings, the court may, subject to subsection (4),
appoint a competent person as an intermediary in order to enable such witness to give his or her
evidence through that intermediary.’
‘(3) (c) If a court appoints an intermediary under subsection (1), the court may direct that the relevant
witness shall give his or her evidence at any place —which enables the court and any person whose
presence is necessary at the relevant proceedings to see and hear, either directly or through the
medium of any electronic or other devices, that intermediary as well as that witness during his or her
testimony.’
6 (1) Any person, who is found not to understand the nature and import of the oath or the affirmation,
may be admitted to give evidence in criminal proceedings without taking the oath or making the
affirmation: Provided that such person shall, in lieu of the oath or affirmation, be admonished by the
presiding judge or judicial officer to speak the truth
[15] As he pulled her inside, she saw his face and recognised him as Thabo. She
had seen him on multiple occasions, particularly when he washed dishes in
the communal kitchen and when he used the toilet. She knew him to be
employed as a security officer at Dusty Moon Flats, a residential complex
near her home. At the time of the incident, she was carrying a cellphone with
the flashlight switched on.
[16] Inside the flat, she observed a stove, a couch, a bed, and a refrigerator. The
man undressed both himself and the complainant, placed her on the bed, and
raped her while she was lying on her back. Thereafter, he instructed her to get
dressed and leave.
[17] The complainant returned home in distress, crying and experiencing pain. She
immediately reported the incident to her stepmother and led her to the flat
where the offence had occurred. They then proceeded to the police station to
lay a charge of rape. The complainant was subsequently taken to a medical
facility for examination.
[18] Following an application by the State, the complainant was brought to court in
the company of the intermediary and a police officer to identify her assailant.
Upon entering the courtroom, she visibly trembled, began crying, and pointed
at the appellant as the perpetrator of the offence.
[19] During cross -examination, she clarified that she had initially made an error
regarding the flat number, confirming that the correct flat was number 8, not
10. She further testified that the appellant resided with another man, who was
a teacher at a Muslim school. However, that individual was not present in the
flat on the night of the incident.
Testimony of Ms. T[...] M[...] ("Ms. M[...] ")
[20] Ms. M[...] testified that she is the complainant’s stepmother. On the night in
question, upon returning home after having her hair done, she found the
complainant crying and complaining of pain in her vaginal area. The
complainant informed her, and later the police, that she had been raped by a
man from Lesotho, whom she described as bald on the top of his head but
with hair on the sides. She further stated that this man resided on the first
floor of their block of flats and was employed as a security guard. She
recounted that he had pulled her into his flat, undressed both himself and her,
and raped her. She also mentioned that both she and her assailant had their
cellphone flashlights turned on during the incident.
[21] Ms. M[...] further testified that the appellant’s flat was visible from their own
flat when the curtain was drawn. The complainant pointed out flat number 8
as the location of the offence. The appellant resided in that flat with another
man, a Lesotho national. Based on the complainant’s description, Thabo
matched the physical characteristics she provided. At the time of his arrest,
the appellant’s hairstyle was still the same as the one described by the
complainant. The complainant was medically examined at the Far East Rand
Hospital Crisis Centre.
Testimony of Constable Jessica Mogadime ("Constable Mogadime")
[22] Constable Mogadime testified that she is a member of the South African
Police Service with five years of experience. On 9 March 2023, she conducted
an informal identification parade to determine whether the complainant could
identify her assailant. Upon arrival at the holding cells where the lineup was
conducted, the complainant, while visibly shaking and crying, pointed at the
appellant as her assailant.
DEFENCE CASE
[23] The appellant testified in his own defence and did not call any witnesses. He
admitted that he knew the complainant, as they resided in the same block of
flats. However, he denied seeing her on the day of the alleged incident.
[24] The appellant stated that he finished work at 18:00 on the day in question and
proceeded to Corner Tavern to watch a soccer match between Orlando
Pirates and Kaizer Chiefs. He returned to his flat at approximately 20:00,
where he found Relebogile and another man, a Malawian national, with whom
he shared the residence. He further stated that he was employed as a
security officer at M[...] , not Dusty Moon Flats. He described the contents of
his flat, stating that he had a two -plate stove, a bed, and a large bag in which
he stored his clothing. He denied raping the complainant.
[25] During cross -examination, the appellant stated that he had previously worked
at M[...] Flats before transferring to M[...] Flats. He explained that he and
Relebogile worked in shifts and did not work on weekends. He further
asserted that the security guard employed at D […] M[…] Flats was an
individual named Ben, a Nigerian national who resided in flat number 10. He
maintained that on the day in question, he was with Amos at Corner Tavern,
watching the soccer match.
DISCUSSION
[26] An appeal court will only interfere with the trial court's factual findings where
the trial court has materially misdirected itself.
[27] To succeed on appeal, the appellant must persuade this court, on adequate
grounds, that the trial court misdirected itself in accepting the evidence of the
State and rejecting his version as not being reasonably possibly true. There
are well -established principles governing the hearing of appeals against
findings of fact. In the absence of demonstrable and material misdirection by
the trial court, its findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly wrong.7
[28] The appellant does not dispute that the complainant was raped; he denies
that he was the perpetrator. In cases concerning identification evidence,
courts must exercise extreme caution, as wrongful convictions may arise from
honest but mistaken identifications. People often resemble each other, and
strangers can be mistaken for acquaintances. Therefore, in all cases hinging
on identification, the greatest care must be taken in evaluating the evidence.8
7 S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645e -f. See also: S v Monyane and Others
2008 (1) SACR 543 (SCA) at para 15; S v Francis 1991 (1) SACR 198 (A) at 204e.
8 R v Shekelele 1953 (1) SA 636 (T) 638G.
[29] The appellant's conviction arose from events that occurred on a night when
the passage was unlit. The State relied on the complainant's evidence, who
was a child. Given that the complainant was both a single witness and a child
witness, the cautionary rule applied.
[30] The cautionary rule requires courts to approach the testimony of such
witnesses with circumspection and to apply safeguards tailored to the specific
reasons their testimony9 may be unreliable. Courts must assess the reliability
and credibility of a witness’s testimony in the context of the case while being
mindful of the concerns that necessitate caution.10
[31] In terms of section 208 of the Criminal Procedure Act 51 of 1977 ("CPA"), an
accused may be convicted on the single evidence of any competent witness.
However, it has been held that the testimony of a single witness must be
"clear and satisfactory in every material respect," and where the single
witness "has an interest or bias adverse to the accused," the evidence must
be approached with particular caution.11
[32] The trial court must weigh the evidence, assess its merits and demerits, and
determine whether it is credible and reliable. Even where shortcomings,
defects, or contradictions exist, the court must decide whether, despite these,
the truth has been established.12 The same principle applies to child
witnesses, whose evidence must be approached with caution,13 but not in a
manner that deviates from the ordinary approach to assessing evidence in a
criminal trial.14
9 Schwikkard and Van der Merwe Principles of Evidence (3rd ed 2012) at p 546.
10 Mohale v S (A634/2017) [2019] ZACC 376 (27 June 2019) at para [36].
11 R v Mokoena 1956 (3) SA 81 (A) at 85H; Sekoala v The State (579/2022) [2024] ZASCA 18 (21
February 2024).
12 S v Sauls & others 1981 (3) SA 172 (A) at 180E –F; Sekoala v The State (579/2022) [2024] ZASCA
18 (21 February 2024).
13 S v V 2000 (1) SACR 453 (SCA) at para [2].
14 S v Haupt 2018 (1) SACR 12 (GP) at para [25].
[33] In S v Chabalala ,15 the Supreme Court of Appeal held: "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."
[34] It was argued on behalf of the appellant that the complainant’s evidence
regarding the assailant’s identity was unreliable. There were material
contradictions between the complainant’s evidence and that of her
stepmother. The complainant also initially provided an incorrect flat number.
[35] The evidence established that the complainant saw the assailant’s face when
he pulled her into his flat and recognized him as someone she knew. She had
previously seen him washing dishes in the communal kitchen and using the
toilet. She described his hairstyle and identified him as a security officer at
D[…] M[…] Flats, a complex near her residence. She also stated that he lived
with a teacher at a Muslim school. She identified the appellant to her
stepmother, the police, Constable Mogadime, and the court while he was in
the dock.
[36] The complainant also described the interior of the appellant’s flat. There was
no evidence suggesting she had ever been inside before the incident.
Although the items she described —such as a stove, couch, bed, and fridge —
were not unique, there was no indication that her testimony was fabricated.
Given that she could identify the objects within the flat, there is no reason she
could not have correctly identified her assailant.
[37] The complainant testified that after the appellant raped her, he instructed her
to put on her clothes and leave. Despite experiencing pain and crying, she
15 2003 (1) SACR 134 (SCA) at [15 ]
would have been aware of the flat from which she exited before returning
home.
[38] I agree with the trial court that the contradiction regarding whether the
complainant entered the appellant’s flat or merely pointed it out to her
stepmother was immaterial. In the broader context of the evidence, the
identification evidence outweighed this contradiction and did not undermine
the State’s case.
[39] The trial court correctly exercised caution in evaluating the complainant’s
testimony, given that she was both a child and a single identifying witness. I
concur with the trial court’s finding that her evidence regarding both the
commission of the offence and the identification of the appellant was reliable.
[40] The appellant claimed he arrived at his flat around 20:00. However, since the
complainant testified that the incident occurred around the same time, this did
not constitute an alibi. The appellant failed to call Relebogile or the Malawian
national with whom he allegedly shared the flat to corroborate his version.
Likewise, Amos was not called to confirm that they had watched the soccer
match together.
[41] It is trite law that the State bears the burden of proving its case beyond a
reasonable doubt, while the accused need only provide a version that is
reasonably possibly true. The trial court was correct in rejecting the
appellant’s version as not reasonably possibly true. The appeal against
conviction is devoid of merit and must be dismissed.
SENTENCE
[42] The appellant argued that the sentence of life imprisonment was
disproportionate, as the trial court over -emphasized the seriousness of the
offence and the interests of society while under -emphasizing his personal
circumstances.
[43] The appellant’s counsel submitted that the appellant was 34 years old,
unmarried, and had two minor children (aged fourteen and five). He was a
first-time offender and the sole breadwinner, earning R3,000 per month as a
security officer. He had limited education, having completed only grade 7, and
had been in custody since his arrest on 27 February 2023.
[44] The appellant contended that the trial court erred in finding no substantial and
compelling circumstances justifying a deviation from the prescribed minimum
sentence of life imprisonment.
[45] In S v Motau ,16 the court affirmed that sentencing is within the discretion of the
trial court. An appellate court will only interfere where the trial court failed to
exercise its discretion judicially or where the sentence is vitiated by irregularity
or is disturbingly inappropriate.
[46] The trial court’s approach to sentencing was sound and cannot be faulted.
There is no basis for interference with the imposed sentence.
[47] The Supreme Court of Appeal in S v Matyityi17 reaffirmed that prescribed
minimum sentences are not to be departed from lightly. The court held:
"Courts are not free to subvert the will of the legislature by resorting to vague,
ill-defined concepts such as 'relative youthfulness' or other equally vague
hypotheses that appear to fit the particular sentencing officer’s personal
notion of fairness."
[48] The trial court properly assessed both mitigating and aggravating factors and
correctly found no substantial and compelling circumstances justifying a
lesser sentence. The prescribed minimum sentence serves as the benchmark
and should ordinarily be imposed in the absence of such circumstances.
[49] I conclude that the trial court exercised its sentencing discretion judicially.
There is no basis for interference with the imposed sentence.
16 (A53/2023)[2023]ZAGPPHC 1272 (17 November 2023).
17 S v Matyityi (2010) ZA SCA 127 2011 (1) SACR 40 SCA.
[50] Accordingly, I propose the following order:
Order:
[50.1] The appeal against conviction and sentence is dismissed.
N G M MAZIBUKO
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORI A
I agree, and it is so ordered
M MUNZHELELE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing : 20 February 2025
Judgment delivered: March 2025
Appearances :
For the appellant: Adv F Van As
Attorney s for the appellant: Legal Aid South Africa
For the respondent: Adv Khosa
National Director of Prosecutions