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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA )
NOT REPORTABLE
Case no: CC68/2024
In the matter between :
THE STATE
and
HLUMELO YALI Accused
__________________________________________________________________ _
JUDGMENT
___________________________________________________________________
Govindjee J
[1] Mr Yali pleaded not guilty to a charge of rape in contravention of s 3, read with
other sections of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007.1 The state alleges that he raped the complainant, a 7 -year-
old girl, by having intercourse with her per anum and per vag inam.
1 Act 32 of 2007.
[2] Mr Yali , who admitted being known as ‘Kwekwe’, gave a brief plea
explanation. He denie d having ever seen the complainant before the present
proceedings. He claim ed not to know her at all and denie d raping her.
[3] The state’s case rests mainly on the e vidence of the complainant and another
child (LM) , who both testified via closed -circuit television with the assistance of a
duly qualified social worker appointed to serve as an intermediary in terms of s 170A
of the Criminal Procedure Act, 1977.2 This followed the necessary applications to
that effect. Both children were held to be competent to testify, as supported by a
psychosocial report in respect of the complainant and an ‘intermediary assessment
report’ in respect of LM.3
[4] The complainant is now almost ten years of age. She testified that she had
been raped by the accused, who m she knew as ‘Kwekwe’ , when she was seven
years of age and in grade one. She had visited his home to play with A[...] and B[...],
who resided with him. Kwekwe, who was in possession of chips, had called her to
his bedroom. He picked her up, laid her onto his bed, undressed her, undressed
himself and then raped her per anum . After turning her over, he raped her per
vaginam .
[5] The complainant used colloqui al terms to refer to the sexual organs
described. She explained that she had first lay on her stomach, when he had
inserted his penis into her anus, and then on her back when he raped her per
vaginam . She had cried at the time. LM had peaked inside and observed the events
and he and another child had told her mother. The complainant had reported what
occurred to her father as she was scared her mother would beat her.
[6] Kwekwe had stood up and dressed hi mself after realising that his actions had
been seen by LM . The complainant had done likewise before returning to her home.
She confirmed that she had never been raped by any other person.
2 Act 51 of 1977 (the CPA) .
3 Both children were duly admonished in terms of s 164 of the CPA.
[7] The complainant confirmed the depiction of Mr Yali’s home, includi ng his
bedroom and bed , as reflected in various photographs admitted into evidence. She
indicated that she had visited the home on approximately five occasions, during
which time Mr Yali had been present. She also entered the courtroom and pointed
out the accused as the person she knew as ‘Kwekwe’.
[8] During cross -examination, the complainant steadfastly maintained that Mr Yali
was speaking untruthfully in denying that he knew her or her mother , or that she had
previously played at his home. LM had been watc hing television when Mr Yali had
called her. He had undressed himself after undressing her. She had told him to stop
doing so , also while he was raping her, but he had refused. She had cried softly and
knew that LM had seen her being raped . He had peeped through the curtain that
served as Mr Yali’s bedroom door and reported the incident to her mother after
telling Mr Yali that he would do so . The complainant testified that she ha d informed
her father of the incident on the day it occurred, and recalled that he had told her
mother that day in her presence . She later testified that this occurred on the same
day that she had visited the hospital. When it was put to her that she had n ot been
raped by Mr Yali, she replied ‘it was him’. She indicated, during re -examination, that
she had wanted to tell her mother that she was experiencing vaginal pain, but had
not explained the reason for this.
[9] LM is presently six years of age and in gra de one. He explained that he had
been called to testify because ‘Kwekwe did some bad things or some dirty things to
[the complainant]’. He, B[...], A[...] and the complainant had been playing together
when Mr Yali called the complainant to fetch some chips. He had been watching
television inside Mr Yali’s home when he heard the complainant cry. He and B[...]
had then observed Mr Yali on top of the complainant while both were naked. With
the aid of anatomically correct dolls, he demonstrated that Mr Yali had us ed his
penis to perform the acts described , before observing LM and chasing him away . He
explained that he had been able to observe this by moving the curtain , which served
as the door to Mr Yali’s room , aside. That curtain, an d Mr Yali’s room, were also
confirmed with reference to the relevant photographs accepted into evidence.
[10] LM indicated that A[...] had been the person who described what had
occurred to the complainant’s mother. He had played with B[...] on at least thre e
occasions in the past. LM also entered the courtroom and, without hesitation, pointed
out the accused as the person known to him as Kwekwe. He knew that Kwekwe
resided at B[...]’s house.
[11] During cross -examination, LM explained that he had not seen Mr Yali remove
the complainant’s clothes, but had observed her lying on her stomach before she
was placed her on her back. Mr Yali had observed him and B[...] and told them to
leave, which they did. He testified that he had not been with A[...] when she had told
the complainant’s mother about the incident.
[12] Ms M, the complainant’s mother, confirmed that LM was a neighbour and
friend of the complainant and that B[...] and A[...] were children living in the same
premises as Mr Yali. The complainant and her family lived in the same
neighbourhood as Mr Yali, less than a street away. Ms M confirmed that the
complainant had visited Mr Yali’s home previously.
[13] According to the witness, she had heard about the incident from LM and A[...]
on 20 October 2022. A[...] was related to the complainant and approximately 13
years of age. Ms M had then proceeded to Mr Yali’s residence and informed his
relative, Siphokazi, what she had been told. Later that evening, one Babalo,
seemi ngly a relative of Mr Yali, had arrived with Mr Yali and a discussion had taken
place in the presence of the complainant’s father and the witness. She had observed
Babalo strike Mr Yali when he refused to speak in plain language in response to
questions ab out what had occurred. She had opened the door to enable Mr Yali to
escape the residence when the complainant’s father had departed to fetch a
hammer.
[14] On the following day, Ms M took the complainant to the police station and
then to hospital . Her evidenc e was that the child had been demonstrating some
discomfort when her vagina was being washed. She would lift her buttocks away
from Ms M’s hand and, when asked what was wrong, replied that she was
experiencing pain, without giving any reason for this. This occurred for a few days
prior to Ms M being informed about the incident . When the report was made to her,
she realised the possible connection with the behaviour she had observed. The
complainant had not reported the rape to her , but to the complainant’s father and s he
assumed that the incident occurred on 16 or 17 October 2022.
[15] Ms M testified that she had known Mr Yali for years and spoken with him
previously. She expressed incredulity when it was put to her that Mr Yali would deny
knowing her , the complainant or LM whatsoever . She explained that the children
would frequently visit his home to play with B[...], and that Mr Yali was a person who
was frequently at home. When it was put to her that Mr Yali would deny that he had
been struck by Babalo in her presence, she testified that he had been able to run
away because she had opened the door for him, and that he had left his slip -slops
behind.
[16] Dr Xwazi, a qualified medical practitioner, testified as to her experience in
dealing with child sexual offences. She had examined multiple patients who had
been victims of such offences in the Port Alfred area. She examined the complainant
on 21 October 2022 and observed a broken hymen. An anal examination had
revealed minimal dilation and twitching, without any other injuries being observed.
[17] The doctor concluded that sexual assault could not be excluded. Her opinion
was that , given the hi story provided to her, penetration with a penis was the probable
explanation for the broken hymen . A broken hymen required some pressure to have
been exerted and s uch an occurrence was by its nature painful. As to the anal
dilation, the evidence was that t his would have been caused by an object bigger in
size having been inserted. The twitching was indicative of trauma to the anus. As to
the absence of other injuries, Dr X wazi explained that this was unsurprising given
that her experience showed that childr en’s cells replicated far quicker than adults,
and that other injuries may have healed given the passing of three or four days.
[18] Constable Gqalane testified that he had accompanied the complainant and
her mother to the hospital after the incident was reported to him . They proceeded to
Mr Yali’s residence and found him in a bedroom, which Constable Gqalane was able
to identify via the photographs acc epted into evidence. At this stage the complainant
and her mother accompanied Constable Gqalane and were together in Mr Yali’s
presence . They were all in proximity so that Mr Yali could observe them.
Analysis
[19] An accused person may only be convicted if, a fter proper consideration of all
the evidence presented, his guilt has been established beyond reasonable doubt. It
follows that an accused person must be acquitted if it is reasonably possible that he
might be innocent. Before rejecting an accused’s versi on on the probabilities, the
court must be able to find, as a matter of probability, that the accused’s version is
simply not reasonably possibly true. Where there is a conflict of fact between the
evidence of the state witnesses and the version of the acc used, the court is required
to consider the merits and demerits of the state case, as well as the probabilities of
the matter, before concluding whether the accused’s guilt has been established
beyond reasonable doubt.
[20] It is therefore necessary to adopt a holistic approach to analysing the
available evidence:4
‘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 count 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 .’
[21] The evidence of young children may only be accepted with great caution. The
imaginativeness and suggestibility of children have been held to be only two of
several elements that require their evidence be scrutinised with care to the point of
suspicion. A t rial court must fully appreciate the inherent dangers in accepting such
evidence.
4 S v Chabalala 2003 (1) SACR 134 (SCA) para 15. Also see S v Dlamini 2019 (1) SACR 467 (KZP)
para 25.
[22] In this case, the complainant’s version of events is strongly supported by LM.
That she was penetrated per vaginam and per anum is also apparent from the
evidence of Dr Xwa zi and the report of a medico -legal examination accepted into
evidence , as well as the evidence of Ms M . As to whether this occurred in the
manner alleged by the state is dependent upon the consideration of all the evidence,
including the merits and demeri ts of the testimony of the complainant and LM, and
bearing in mind the caution applicable to the testimony of young children. The court
is entitled to convict on such evidence if it is satisfied beyond reasonable doubt that
such evidence is true, and notwi thstanding that the testimony may have been
unsatisfactory in some respects.
[23] The identity of the perpetrator requires careful consideration in the
circumstances. The correct approach, as per S v Mthetwa , requires consideration of
the reliability of observ ation, including factors such as visibility, proximity, opportunity
for observation, extent of prior knowledge of the accused, mobility of the scene,
corroboration, suggestibility and any evidence by or on behalf of the accused.
Considering the relevant fa ctors one against the other, in the light of the totality of
evidence, and the probabilities, permits of only one conclusion.
[24] Mr Yali was positively identified by the complainant, who, it must be accepted,
had previously visited his place of residence to play, as confirmed by her mother. Ms
M was a credible witness who testified clearly and concisely about various aspects
within her knowledge. Her evidence corroborated that of the complainant in several
respects . In particular, she confirmed that she had known Mr Yali for some time and
that her child would visit his home to play with B[...]. It must also be accepted that the
complainant had experience discomfort while being washed by her for a few days
prior to the incident being reported. That evidence corr elates with Dr Xwazi’s
findings. Ms M’s evidence that Mr Yali was a person who typically remained in that
residence was unchallenged and the details she was able to provide regarding Mr
Yali’s altercation with Babalo must be accepted.
[25] The complainant also testified clearly and without hesitation about the
incident . She repeatedly , and reliably, identified Mr Yali as the perpetrator. As
counsel pointed out, her evidence was not without blemish. Although she referred to
the chips in the possession of Mr Yali, she was unclear as to whether she had
responded to his call for that reason. She was unsure whether she had informed her
father o n the day of the incident or on the same day that she visited the hospital, or
whether these dates coincided , and her father did not testify. She was also mistaken
in recalling that she was present at the time her mother was told about the incident.
[26] Such matters , including what Mr Yali said to LM, or vice versa, at the time,
must be viewed with reference to the fact that she was only seven at the time of the
incident. But the crux of her testimony , which on its own was unequivocal, found
strong support in the testimony of LM who, despite his tender age, impressed with
his ability to recall what he had seen. He provided guileless evidence, aided by the
dolls provided to him, and his testimony accorded with that of the complainant in all
material respects. His description of the scene and the reason he had peeped
around the curtain that served as Mr Yali’s room door matched that of the
complainant. She had cried out while being raped, albeit so ftly, and he and B[...] had
heard , peeked into the bedroom , observed the complainant being raped before being
chased away by Mr Yali. He was equally clear as to events he had not observed,
such as the complainant being undressed by Mr Yali, which accords wit h his
evidence that he was only alerted to the incident when the complainant cried out
while being raped.
[27] Notwithstanding the caution to be applied to his evidence, considering the
factors relevant for purposes of identification, there is simply no doubt that Mr Yali
was the person that he had seen, a person known to him and the complainant. As
with the complainant, his evidence contained blemishes. In particular, he denied that
he was with A[...] when she reported the incident to Ms M. That aspect o f his
testimony cannot be accepted given Ms M’s clear evidence to the contrary. But this
was a minor, immaterial inconsistenc y of the kind to be expected when considering
the evidence of a young child testifying about events which occurred more than two
years ago. Similarly, the court accepts Ms M’s evidence that the incident was only
reported a few days after it occurred , and that the complainant was not present at
that time . Ms M then understood what had caused her daughter ’s discomfort, later
confirmed b y Dr Xwazi’s examination.
[28] It is necessary, when evaluating evidence in criminal proceedings, to subject
each component to a detailed and critical examination, before considering the entire
mosaic from a step back.5 Viewed as such, the state has proved beyond reasonable
doubt that Mr Yali raped the complainant in the manner she described, and as
observed by LM , and that his actions were the cause of what Dr Xwazi observed
during her examination, and the pain experienced and described by the compla inant.
Both children, and Ms M, knew Mr Yali, who lived in the same house as B[...], who
was a playmate. The children had visited Mr Yali’s home previously. On this
occasion, it is accepted that he lured the complainant to his room with the offer of
chips , which both children recalled during their testimony, before undressing her and
himself and raping her per anum . He then turned her over and raped her per
vaginam . In the process she asked him to desist. He refused to do so and the pain
she experienced caused her to cry out, thereby alerting LM, who observed what
transpired. The complainant’s evidence that she was not raped by anybody else
must also be accepted.
[29] Mr Yali chose not to testify and, as a result, his denials could not be tested
during cross -examination. Considering the overwhelming evidence presented by the
state, it must be concluded that the version offered in his plea explanation is not
reasonably p ossibly true and must be rejected. This conclusion finds further support
in the testimony of Constable Gqalane, who confirmed that Mr Yali had encountered
the complainant and her mother at the time of his arrest, the complainant having
already at that stage confirmed his identity as the perpetrator. In addition, quite how
both children would have been able to identify the inside of Mr Yali’s room, as they
did, had they not seen it previously remained unanswered. In effect, Mr Yali chose to
remain silent in the face of overwhelming evidence indicative of his guilt.6
Considering the weight of that evidence, Mr Yali must be found guilty as charged.
Order
5 S v Mbuli 2003 (1) SACR 97 (SCA) para 57.
6 S v Boesak 2001 (1) SACR 1 (CC) para 24.
1. The accused is found guilty of the crime of rape as charged.
_______________ __________
A GOVINDJEE
JUDGE OF THE HIGH COURT
Heard: 17–19 February 2025
Delivered: 20 February 2025
Appearances:
For the State : Adv Hendricks
Instructed by: Director of Public Prosecutions
Makhanda
For the Accused : Adv Geldenhuys
Instructed by: Legal Aid South Africa
Makhanda