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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
CASE NO. CA&R 87/2024
In the matter between:
M[…] M[…] Appellant
and
THE STATE Respondent
__________________________________________________ _________________
JUDGMENT
__________________________________________________ _________________
LAING J
[1] This is an appeal against conviction and sentence . The appellant was charge d
with the rape of the complainant on 1 May 2021 at Fort Grey. The complainant was 13
years old at the time. The appellant denied the charge but offered no plea explanation.
The Regional Court, sitting in East London, found the appellant guilty and sentenc ed
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him on 10 April 2024 to a period of life imprisonment. The appellant relies on his right to
appeal in terms of section 309(1) of the Criminal Procedure Act 51 of 1977 (‘CPA’).1
[2] The complainant’s testimony can be summarized, briefly, as follows. The
complainant resided with her mother and father (the appellant) .2 On the day of the
incident, she had been with her friends . Despite having been required to return home by
17h00, the complainant continued to socialize ; she purchased and consumed liquor
later that evening. The appellant eventually found her at about 22h00 in the vicinity of
the local tavern . He remonstrated with her and took her home, where her mother
reprimanded her for her disobedience. When it became clear to the complainant that the
appellant intended to punish her, she alleged that her mother was cheating on h im. This
led to an altercation between the couple . The appellant left the house to sleep at the
home of his sister, who was a way at the time. The complainant asked to accompany
him because she was afraid of what her mother would do to her . Along the way, the
appellant confronted the complainant about her allegation, to which she responded that
her mother’s lover was a certain ‘Sakkie’ , who resided in the village.
[3] Upon their arrival at the home of the appellant’s sister , they prepared a single
bed and went to sleep, but not before the appellant had smoked tik. They slept with their
heads on opposite sides of the bed. At some point during the night , the complainant
awoke to find the appellant with his hands around her neck, accu sing her of having
caused the quarrel with her mother. The appellant pu lled the complainant into the
kitche n, held a knife to her neck, forced her to undress, and proceeded to rape her .
[4] After the incident, the appellant returned to bed. The complainant joined him out
of fear of his reaction if she refused . As soon as it became light, the complainant left the
house , eventually finding her way to the home of her closest friend, Ms T…, to whom
1 The provisions allow a person to note an appeal without applying for leave to do so where he or she has
been sentenced to life imprisonment by the Regional Court under section 51(1) of the Criminal Law
Amendment Act 105 of 1997.
2 There was some dispute about whether he was the complainant’s biological father. This seems to have
been a factor in the events that followed.
she reported the inc ident . Ms T… summoned her mother, as well as the complainant’s
mother, after which the matter was referred to a member of the local police forum . The
complainant was taken to the Cecilia Makiwane Hospital where she was examined . She
was also given medication for her voice, which had been affected by the injuries
sustained to her neck.
[5] The medical findings were a dmitted as evidence . These revealed that the
complainant had been physical ly assault ed; there were no injuries to her genitalia but
the medical practitioner who conducted the examination could not exclude the
possibility of sexual assault. The J88 included diagram s that depicted hymenal tears
that had healed, as well as scratch marks on the complainant’s neck.
[6] The complainant’s friend, Ms T…, testified about how th e incident had been
reported to her. In that regard, the complainant had narrated to her the events of the
previous night, including the rape itself. Ms T… alleged that the appellant was not the
complainant’s biological father ; she identified t he appellant, in court, as the
complainant’s stepfather . She went on to indicat e how the matter had been reported to
the complainant’s mother.
[7] The complainant’s mother, Ms J… , testified too. She was adamant that the
appellant was the complainant’s father. Ms J… described the events that occurred on
the night in question and how she had been summoned by Ms T… on the following
morning. The complainant’s neck had been bruised, and she had lost her voice . She
had informed Ms J… about the r ape. Ms J… denied having ever assaulted the
complainant.
[8] In his defence, the appellant ’s version largely accorded with the testimonies of
the complainant and state witnesses . He stated, however, that the complainant’s
mother, Ms J… , had found her earlier in the day and assaulted her. That night, he and
the complainant had indeed shared a bed at the home of his sister, but nothing
untoward had happened. The appellant said that the complainant had left him early the
next morning. He denied that he had placed a knife against the complain ant’s neck and
raped her. He attributed the charge to a scheme on Ms J… ’s part to falsely implicate
him so that she could continue her affair with ‘Sakkie’.
[9] The final witness for the defence was Sgt Janisa Tshona, who testified about the
circumstances in which she obtained a statement from the complainant . This did not
seem to have taken the matter much further.
[10] On appeal, the appellant contended, inter alia , that the court a quo erred in not
treating the complainant’s evidence with sufficient caution. This was because she was a
single witness to the events that took place at the ho me of the appellant’s sister. He also
contended that the court a quo erred in not finding that the appellant’s version was not
reasonably possibly true.
[11] The correct approach of an appeal court was addressed by the erstwhile
Appellate Division in S v Francis ,3 where Smalberger JA held that:
‘The powers of a court of appeal to interfere with the findings of fact of a trial
court are limited. In the absence of any misdirection, the trial court’s conclusion,
including its acceptance of a witness’ evidence, is presumed to be correct. In
order to succeed on appeal , the appellant must therefore convince the court of
appeal on adequate grounds that the trial court was wrong in accepting the
witness’ evidence - a reasonable doubt will not suffice to justify interference with
its findings. Bearing in mi nd the advantage which a trial court has of seeing,
hearing and appraising a witness, it is only in exceptional cases that the court of
appeal will be entitled to interfere with a trial court’s evaluation of oral testimony.’4
3 1991 (1) SACR 198 (A).
4 From the headnote.
[12] Some years later, the Supreme Court of Appeal reiterated the above principles in
S v Hadebe and Others ,5 where Marais JA observed that:
‘…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 .’6
[13] Regarding a single witness, section 208 of the CPA clearly stipulates that an
accused may be convicted of any offence on the single evidence of a competent
witness. The cautionary rule , when correctly applied, is designed to minimise the
obvious danger s associated therewith.
[14] When dealing with the evidence of a single child witness, extra care is required.
This is especially so in cases involving a sexual offence , where the corroboration of the
child’s evidence serves as a useful safeguard against the risks posed by
imaginative ness, suggestibility, and an immature understanding of the ways of adults .
As Du To it observes:
‘There is no statutory requirement in our law that a child’s evidence must be
corroborated. Nor have the court’s insisted upon a “rigid rule that corroboration
should always be present before the child’s evidence is accepted” ( R v Manda
1951 (3) SA 158 (A) at 163C). However, it has been accepted that the evidence
of young children should be treated with great caution owing to the dangers
inherent in such evidence ( R v Manda (supra) at 162). And, although
corroboration is not a prerequisite for a conviction, a court will sometimes in
appropriate circum stances seek corroboration which implicates the accused
before it will convict (see S v Hanekom 2011 (1) SACR 430 (WCC) at [15]).’7
5 1997 (2) SACR 641 (SCA).
6 At 645e.
7 E du Toit (et al), Commentary on the Criminal Procedure Act (Juta, service 69, 2022), at 24 -9.
[15] In the present matter, it was common cause that the complainant had disobeyed
her parents’ request or expectation that she be home by a reasonable hour . She had
also consumed alcohol. The complainant’s parents had confronted her about her
behaviour , which had resulted in an altercation after the complainant had alleged that
her mother had been unfaithful. It was also common cause that the complainant had left
with the appellant and shared a bed with him at the home of his sister. No-one else had
been present. The testimonies of the appellant and the complainant differ, however, in
relation to what happened that night.
[16] There is nothing in the record to suggest that the complainant’s e vidence ought
not to have been trusted. She conceded that she had made the allegation about her
mother’s infidelity to avoid punishment for her misbehaviour. Her subsequent
accompani ment of the appellant to his sister’s home is understandable , given how her
mother would have reacted to such betrayal. She went on to describe in detail how the
appellant had confronted her later that night, accusing her of having caused the quarrel
with his wife and asserting that she was not his child. The complainant narrated, too, the
events of the incident itself, how the appellant had held her neck and strangled her
before dragging her into the kitchen . He had held a knife to her throat and forced her to
undress. He had then pressed her head against the floor and raped her from behind .
The complainant indicated that she had been raped twice. The complainant’s
explanation for why she had returned to share the bed with the appellant is plausible,
considering the nature of the parent -child relati onship and her fear of further
repercussion s if she defied him.
[17] Significant ly, however, it is the testimony of the remaining witnesses that
corro borates the material aspects of the complainant’s evidence. Both Ms T… and Ms
J… stated that the complainant had informed them about the rape. She had , moreover,
lost her voice and was frightened. Ms T… was particularly consistent in this respect,
saying that the complainant had been crying and emphasis ed this under cross -
examination as follows:
‘MR SANQELA: When [the complainant] came to you and she started telling
you what had happened, in what mood was she in?
MS T…: She wasn’t in a right state.
MR SANQ ELA: Are you able to explain what do you mean when you say she
was not in a good state?
MS T…: She was crying. She was shivering and she was scared.’
[18] Of considerable importance is Ms T…’s testimony that she had noticed injuries
on the complainant’s neck. She referred to scratch marks . This was corroborated by Ms
J…, who se testimony under cross -examinati on went as follows:
‘MR SANQELA: You said that [the complainant] had bruises on the neck; are
you able to describe these bruises that you saw on [the
complainant’s] neck?
MS J…: Yes, I can.
MR SANQELA: Please share with the court.
INTERPRETER: May the Court observe as the witness is making hand
gestures, Your Worship, showing how these marks were.
COURT: Can she repeat?
MS J…: She was bruised (and the witness showing to her neck area,
Your Worship). That she had white marks as if a chicken
scratched her.’8
[19] The description of the injuries was corroborated, in turn, by the contents of the
J88. This was accepted without objection from the defence.
[20] Overall, the evidence point ed to a traumatic event that had occurred during the
night before . The complainant had clearly been terribly upset when Ms T… and Ms J…
encountered her in the morning afterwards. The injuries on the complainant’s neck were
8 Sic.
consistent with the allegation that the appellant had strangled her . It should be noted
that nothing turns on the appa rent discrepancies between the complainant’s statement
to the police that her mother had assau lted her earlier in the day, prior to the incident,
and her testimony to the contrary under cross -examination . In that regard, s he denied
that her mother had assaulted her. Ms J… , too, was emphatic that this had never
happened. The statement itself gave no indication at all that the complainant’s mother
was the cause of the injuries to her neck .
[21] Turning to the rape allegation, the complainant admitted that she had been
sexually active some two months prior to the incident . The J88 recorded clefts that had
subsequently healed , as well as a ‘history of sexual assault’. A gynaecological
examination reveal ed no fresh injuries to the genitalia but the absence thereof ‘does not
exclude genital penetration’.
[22] At this stage, I pause to mention that the court a quo expressed the view that the
clefts mention ed in the J88 could have healed in the intervening period of two or three
days between the date of the alleged incident and the date of the examination. There
was, however, no evidence upon which such a view could have been based . The state
never called the medical practitioner in question to clarify her findings. Consequently ,
the magistrate was, with respect, incorrect in that regard .
[23] Notwithstanding the above , the cumulative effect of the state’s evidence must be
considered. The complainant’s testimony, the testimonies of both Ms T… and Ms J… in
relation to the complainant’s condition and her narrat ion to them of the incident itself, as
well as the evidence disclosed by the J88 , prevent me from finding any reason to
interfere with the magistrate’s conviction of the appellant for the alleged rape.
[24] This is not disturbed in any way by the appellant’s testimo ny itself. He offered no
reasonable explanation for why the complainant had chosen to leave the home of the
appellant’s sister at 05h00 the following morning, just when it had started to become
light; he gave no indication whatsoever of the possible cause of the trauma suffered by
her and observed by the witnesse s for the state. The appellant’s assertion that the
complainant’s mother had instructed her to implicate him so that she could continue her
affair with Sakkie was entirely fanciful ; it ignored the obvious tensions between Ms J…
and her daughter and the outright hostility that emerged on the day of the inc ident when
the complainant alleged that her mother had been unfaithful. For the complainant to
have conducted herself in the way that she did during the following morning would have
required remarkable skills of manipulation an d play -acting . It cannot be said that the
court a quo was wrong to have rejected the appellant’s version.
[25] Regarding the sentence of life imprisonment, the appellant contended that the
magistrate had failed to consider properly his personal circumstances. The pre-
sentence report described him as a 42-year-old man with limited formal education but
who had acquired plumbing skills that enabled him to secure employment from time to
time; he had been working as a gardener when he was arrest ed. The appellant has two
dependants, but no further details were pro vided. He is a drug -user. The state proved
several previous convictions, includ ing house -breaking, assault, possession of an
unlicensed firearm , and rape.
[26] The offence attracted the minimum sentencing provisions of section 51(1) of the
Criminal Law Amendment Act 105 of 1997 (‘CLAA’) because the complainant had been
under the age of 16 years and had been raped twice. In S v Malgas ,9 the Supreme
Court of Appeal, per Marais JA, made it clear that prescribed sentences were not to be
departed from lightly and for flimsy reasons that could not withstand scrutiny.10 Similarly,
in S v Vilakazi ,11 Nugent JA held that, in cases of serious crim e, the personal
circumstances of the offender, by themselves, will necessarily recede into the
background .12 The above approach must be balanced by the principle that the sentence
imposed must not be disproportionate to the particular offence .13
9 2001 (1) SACR 469 (SCA).
10 At paragraph [9].
11 2012 (6) SA 353 (SCA).
12 At paragraph [58].
13 See the discussion in Du Toit (n 7), at ch28 -p18D-8G to 10E.
[27] In the present matter, there were two key aggravating factors . The first was the
appellant’s previous conviction for rape, in relation to which he had been sentenced to
12 years’ imprisonment . The second was the father -daughter relationship between the
appellant and the complainant .14 It was clear from the victim impact statement that , prior
to the incident, the complainant had enjoyed a close relationship with the appellant ; she
had loved him as her father. After the incident, however, she was a different person; the
incident had changed her . The statement reflected a troubled young person , unable to
focus on her academic studies, and with a complicated view of her father and the
atrocity that had been committed against her.
[28] There were, quite simply, no substantial and compelling circumstances to have
warranted a departure from the minimum sentencing provisions of the CLAA. I find no
reason to interfere with the sentence imposed.
[29] Ultimately, I am not of the view that the cour t a quo misdirected itself, in relation
to either conviction or sentence. In the circumstances, I would order that the appeal be
dismissed.
_________________________ _____
JGA LAING
JUDGE OF THE HIGH COURT
I agree.
______________________________
JM ROBERSON
14 There was, as mentioned earlier, some dispute about whether the appellant was indeed the biological
father of the complainant or her stepfather. The distinction, I submit, is irrelevant . From the record, it is
evident that the appellant had fulfilled a par ental role until the date of the offence.
JUDGE OF THE HIGH COURT
APPEARANCES
For the appellant: Mr Charles
Instructed by: Legal Aid South Africa
MAKHANDA
For the respondent: Adv Mgenge
Instructed by: The Director of Public Prosecution
94 High Street
MAKHANDA
Date heard: 29 January 2025.
Date delivered: 11 February 2025.