SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable: NO
Of Interest to other Judges: NO
Circulate to Magistrates: NO
Case No: A 90/2024
In the matter between:
NICK KANTOLO NQANA Appellant
and
THE STATE
Respondent
HEARD ON: 18 NOVEMBER 2 024
JUDGMENT BY: MHLAMBI, J
___________________________________________________________________
CORAM : MHLAMBI, J et VAN RHYN, J
DELIVERED: 28 FEBRUARY 2025
[1] The appellant was convicted and sentenced to life imprisonment on a charge of
rape. This appeal is against the conviction and sentence. At the same time, the appellant seeks the reinstatement of the appeal and condonation for the late
filing and prosecution of the appeal.
[2] The application for condonation is not opposed, and I am satisfied that a proper
case has been made for condonation. Condonation is therefore granted for the late filing and prosecution of the appeal.
[3] The appeal is based on the following grounds:
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“AD CONVICTION
1. The court failed to approach the evidence of I[...] M[...] ("complainant") with the requisite
caution which was teased in two fold instances, she was a single witness and also a
child witness.
2. Furthermore, the court a quo erred in failing to consider the contents of the J88 report
when making a credibility finding on the complainant. Column C: Medical History on the
J88 reveals that the complainant had a possible impairment and an intellectual disability.
The court therefore had to exercise great caution prior to making a finding that the
complainant was a credible witness.
3. The evidence of I[...] was characterized with material contradictions between her oral
testimony in chief, cross- examination and the account she allegedly gave to her mother. It
was also riddled with improbabilities and inconsistencies in that: -
(i) She claims to have slapped the accused and thrown him to his bed. Thus,
complainant claims to have in essence overpowered the accused having enough time
to put on her clothes and then run home yet when she gets home, she fails to report
to her mother about the alleged incident;
(ii) She claims that she reported the incident and was examined in August 2022 however
the evidence is clear that she was only examined in November 2022;
(iii) At the time that I[...] was to lead evidence in chief it was clear that she struggled to
differentiate between right and wrong and the magistrate flimsily dismissed this
aspect as but ignorance of youth.
(iv) The complainant testified that when she came back from the shop, she found the Appellant naked on the bed. However, the complainant's mother ( P[...]) testified that
she was informed by the complainant that she found the Appellant wearing a short pant when she returned from the shop.
(v) P[...] further testified that the complainant informed her that the accused told her "l am
going to kill you". This alleged threat is not mentioned at all by the complainant in her
testimony.
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4. The court erred in rejecting the evidence by the Appellant that he is employed and is at
work from 07:00 and ordinarily arrives at home at 18:00 and that he had no knowledge of
the alleged rape. The Appellant disputed each and every allegation made against him. It is
trite that an accused in criminal proceedings need not prove his innocence however it is
the state's duty to do so beyond a reasonable doubt.
5. The State did not adduce any conclusive medical evidence pointing to the guilt of the Appellant.
AD SENTENCE
6. The sentence of life imprisonment in gaol is shockingly inappropriate herein. The court
misdirected itself and over emphasised the seriousness of the offence, the interest of the
society and down — scored the mitigating factors in favour of the Appellant. The said
factor when cumulatively taken amount to compelling and substantial reasons for deviation
from the applicable minimum sentence. ”
[4] The state opposes the appeal and supports the conviction and sentence.
[5] The complainant, who was 13 years old at the time, testified that on the day in
question, she was on her way to the shops when she was called by the
appellant, who asked her to buy him some cigarettes. Upon her return, she
went to deliver the cigarettes to the appellant, whom she found naked in his
children’s bedroom. She testified that the appellant grabbed her, threw her on the bed, undressed her , and inserted his penis in her vagina. He tried to kiss
her, but she slapped him, threw him on the bed, quickly dressed herself, and
ran home. There were people at her home, but she told no one about the incident because the appellant had warned and threatened her not to say
anything. In August 2020, she felt ill and went to hospital , where she reported
the incident for the first time during her examination.
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[6] The state’s second witness, Mr SPP Mokoena, testified that he was a
professional nurse employed by the Department of Health and was stationed at the Botshabelo District Hospital. On 19 November 2020, he examined the complainant and completed the medico- legal examination report, which was
handed to the court as exhibit “A .” On examination, he observed that the
complainant did not have any physical injuries and came to the conclusion that the absence of injuries did not exclude the possibility of child abuse. He noted
that the alleged complainant’s assailant
“ordered her to undress , and when she
refused, he undressed her dress and panties and subsequently abused her sexually on the
bed.”
[7] The hymen configuration was annular , meaning it was round, and at the margin
or the edge of the hymen, there was a notch at 9 o’clock. He noted under the
complainant’s medical history and intellectual disability that there was a possible impairment , and he queried her intellectual disability.
[8] The complainant’s mother testified as the third state witness. Her testimony is
that she was called to the hospital , where she was told that Mr Nqana must
have done something to the complainant. She only knew then of the complaint’s alleged rape. She and the accused had a romantic relationship,
which was terminated. The complainant is ,
“My child is just like me mentally, because I
have a challenged mentally due to an injury…I was stepped or hacked with a spade, and I only
attended school up to standard 6. ”
[9] The appellant confirmed the romantic relationship with the complainant’s
mother, which no longer exists. He denied sending the complainant to buy him
cigarettes from the shop. He denied having raped the complai nant as he was at
work. He worked weekdays and knocked off at 18h00 daily. He spent
weekends at home. He did not rape the complainant.
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[10] The court found that the accused’s version was a bare denial and that his
version was not reasonably , possibly true and was rejected as false. The court
found that the state had successfully proved its case beyond reasonable doubt.
The court believed that the complainant's mother, P[...] , would not have used
the complainant to implicate the accused falsely . If she had needed to do so,
she would have involved the forensic nurse in being “complicit in the scheme .” The
complainant could not have “self-inflicted the injury ,” which the nurse described as
“a notch, a healed tear in the female genitalia of the complainant .”
[11] This reasoning is alarming because, by implication , the court concluded that the
accused caused that injury. The court found that the contradictions between the
complainant and her mother did not, in the light of the totality of the evidence,
negate the credibility of the state case. It is so that the state must prove its case
beyond a reasonable doubt and that the accused must present a reasonably,
possibly true version. There are several material cracks in the state case on
perusal of the transcribed record.
[12] The charge sheet, before the case was finally transferred to the regional court,
alleged that the rape occurred on 2 November 2020. It was later amended to reflect that the alleged rape occurred during July 2020 without a specific date. The evidence of Mr Mokoena was that on 19 November 2020, on examining the complainant, he found a notch on the hymen at 9 o’clock. His conclusion
was that the absence of injuries on the vagina and surrounding areas
“did not
exclude a possibility of child sexual abuse; if it was, it happened maybe two or three days within
that period. Hence I said we, I do not know what happened from July because the survivor or
the child could not recall the date, what, on the day, what or the date. So, from July to
November, before I examined the child, I do not know what happened”.
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[13] The court failed to consider the discrepancies between the complainant and her
mother. Though the complainant testified that she was threatened by the
accused, she never said that the accused was going to kill her , as suggested
by her mother's testimony. What is interesting and remarkable is the mother’s
testimony when she said, “At the hospital where I was called, I was told this child of mine,
Mr Nqana must have done something to her. ”
[14] The accused’s counsel was correct that the court misdirected itself in not
placing sufficient weight on the significance of the day or date of the incident.
The thrust of the state’s cross -examination was aimed at ascertaining the date
of the incident from the accused. According to the charge sheet, the incident occurred
“on or about July 2020 ”. This goes right to the heart of the complainant’s
credibility. Did this incident happen during July, November, or in between, as
testified by the forensic nurse? Why did t he complainant not inform the m other
of the incident for about four months ? Why did the mother exaggerate her
evidence? Is her evidence reliable, taking into account the cautionary rules and the fact that she was mentally handicapped?
[15] It is e vident from her testimony that t he complainant was more substantial than
her assailant, as she could quickly dispose of him when he tried to kiss her
after allegedly penetrating her with his penis. The question is, why did she easily allow herself to be undressed when she could so easily get rid of him? As far as the evidence relating to the rape is concerned, the complainant is a single witness. Her age at the time was thirteen years. The mother’s evidence
and the medical report (concerning the complainant) indicate that both are
mentally challenged.
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[16] It was stated in S v VAN DER MEYDEN1 that “ The proper test is that an accused is
bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably possible that he might be
innocent. The process of reasoning which is appropriate to the application of that test in any
particular case will depend on the nature of the evidence which the court has before it. What
must be borne in mind, however, is that the conclusion which is reached (whether it be to
convict or to acquit) must account for all the evidence. Some of the evidence might be found to
be false; some of it might be found to be unreliable; and some of it might be found to be only
possibly false or unreliable; but none of it may simply be ignored. ”
[17] It is trite that a conviction is possible based on the evidence of a single witness,
but such evidence must be credible and approached with caution.2 I am of the
view that the court failed to apply the cautionary rules , especially given the
lacunae in the state’s case, the unclear evidence of the minor complainant with
a mental impairment, and conflicting versions of the state’s witnesses. The
appellant’s version is reasonably possibly true and cannot be rejected as false.
He was not shown to be a mendacious witness and stuck to his version in
cross- examination.
[18] The conviction and sentence cannot stand in the circumstances and should be
set aside.
[19] The following order issues:
1. The appeal succeeds.
11999 (1) SAC R447 (W); S v Trainor 2003 (1) SACR 35 (SCA).
2 S v Webber 1971 (3) SA 574 (A).
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2. The conviction and sentence are set aside.
MHLAMBI , J
I concur.
VAN RHYN, J
On behalf of the Appell ant: Adv. Modise P Modise
Instructed by: Moruri Attorneys Incorporated
94 Kellner Street
Westdene
Bloemfontein
On behalf of the respondent: Adv. L Mkhabela
Instructed by: The Director of Public Prosecutions
Waterfall Centre
Bloemfontein