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IN THE HIGH COURT OF SOUTH AFRICA
(EAST ERN CAPE DIV ISION, MAKHANDA )

Case No.: CC07/2025
Reportable Yes/No

In the matter between :

THE STATE

versus

M[...] S[...] ACCUSED
__________________ _____________________________________ _____ ____

JUDGMENT
________________________________________________________________

Cengani -Mbakaza AJ

Introduction

[1] On 13 October 2024, a mother whose identity is being concealed to
safeguard the best interests of her child summoned the police . This occurred after
her 11 -year-old daughter (the complainant) disclosed that she had been sexually

abused by her paternal uncle who is also her mother’s brother -in-law. The child
reported that she was sexually abused on multiple occasions.

[2] The family resided in a t wo-roomed house at Tambo village in the magisterial
district of Chris Hani Municipality in Koman i. As explained and de picted in the
photographs ( Exhibit “B” ), the premises consisted of three structures namely, the
main house with one bedroom and two separate flats. All the houses were built
parallel to each other. At the time, the family members comprised of the complainant,
the mother and her two siblings who were minors at the time . In the premises, there
were two other male persons who were closely related to the family including the
complainant’s paternal uncle .

The charge

[3] As a consequence of th is event, the Director of Public Prosecutions for the area
of jurisdiction of the Eastern Cape in Makhanda , instituted criminal proceedings
against the accused . The charge is in contravention of s 3 read with ss 1, 56 (1), 58,
59 and 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act, 32 of 2007 (SORMA) and further read with the provisions of s 94 of the Criminal
Procedure Act 51 of 1977 (CPA). The state alleges that on diverse occasions
between June and 13 October 2024 t he accused did unlawfully and intentionally
commit acts of sexual penetration with an 11 -year-old girl, by having intercourse with
her per anum without her consent and against her will.

[4] The accused pleaded not guilty and through his legal representati ve Mr
Solani from legal Aid -SA reserve d the basis of his defence.

The evidence

[5] In their testimonies , both the complainant and her mother described the
accused as a very helpful person who would assist the children with their homework
specifically the complainant . Due to the mother’s disability, the family relied on the
support of the accused while her husband was away working in Cape Town. He
would cook , clean the houses and do the lau ndry for the entire family. On occasions
when the complainant’s mother attended church or other community meetings, she
would leave the children in the accused’s care . The complainant’s mother trusted the
accused unconditi onally due to his perceived reliab ility and trustworthiness within the
family. The accused loved her children, so she testified.

[6] On a particular day, the accused drove the mother to church and later returned
to pick her up, as she had a community meeting to attend. Following the meeting,
the complainant approached her mother in a visibly distraught stage and begged her
not to leave her in accused’s care again. This is the stage the c omplainant disclosed
that she had been raped by the accused more than once in her anu s. Asked to
explain the details of the alleged sexual assault, the complainant’s mother testified
that she did not ask how the incident s unfolded. Instead, she heard the complainant
narrating the story to the police.

[7] During cross -examination, it was suggested to her that the quarrel between the
accused and the complainant on 13 October 2024, was the motive for the
complainant to falsely implicate the accused. The complainant’s mother confirmed
that there was a stage where th e accused had a quarrel with the complainant over
who should wash the dishes. She explained, however that according to her
observations, this was not a serious uproar.

[8] Following the accused’s arrest by the police, the com plainant was taken to
Docto r Ntombikayise Mangquzana ( the Dr) for examination. It is common cause that
the Dr possesses MBCHB which she completed at the University of Pretoria in 2022.
In addition, she holds Medical Clinic Certificate which she obtained at Walter Sisulu
University in 2012. Further to her qualification s, she did her internship at Livingstone
hospital. Between January to December 2024, she did her community service in
Komani. The Dr gave account of how she examined the complainant on 13 October
2024. As a m otivation for her testimony, she submitted a medico -legal examination
report (Exhibit “A”) which she authored after the complainant’s examination. The
medical report reveals that the complainant’s vaginal area was normal but her anal
sphincter was dilated. The complainant’s a nus, so she explained , was open ed as a
result of penetration. She further noted the dilatation of the orifice. The orifice, so she
testified, is allocated inside the anus. The Dr explained that her findings were
consistent with a history of sexual assault which she obtained from the complainant.

[9] Prior to the complainant’s testimony, t he state brought three unopposed
applications . These were substantiated by a report (Exhibit “D”) compiled by Ms
Nomonde Stamper (Ms Stamper) , a clinical psychologist. In summary, Ms Stamper
reported that while the complainant is competent to testify, her observations suggest
that the proceedings should not be conducted in an open court. The truth and
correctness of Ms Stamper’s re port w as never placed in dispute by the defence.

[10] Consequently, I considered in the interests of justice to issue the following
orders:

(a) That, the proceedings be held in camera throughout the duration of the
complainant’s testimony .1

(b) That, a close circuit television be used.2

(c) Furthermore, I formally appointed Ms Luleka Mbenya, a qualified social
worker to act as an intermediary and assist the child for the duration of the
presentation of her testimony .3

[11] As alleged by the complainant , the specificit ies of the rape incidents are as
follows : On a certain day prior to the school’s re -opening, she was left under the
accused’s care. Her mother and siblings had gone to buy food. The accused
instructed her to sit on his lap, b ut she refused. She then proceeded to her mother’s
room to take a bath. While bathing, the accused entered t he room . Despite the
complainant’s request for him to leave the room, he resisted. He only did so after a

1 Section 153 of the CPA.
2 Section 158 of the CPA.
3 Section 170A of the CPA provides,
‘(1) Whenever criminal proceedings are pending before any court and it appears to the court that it
would expose any witness ‒
(a) under the biological or mental age of eighteen years;
(b) who suffers from a physical, psychological, mental or emotional condition; or
(c) …
to undue psychological, mental or emotional stress 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.
moment. The complainant finished bathing a nd got dressed. While she was brushing
her teeth, the accused grabbed the toothbrush, pushed her onto to the bed and
raped her. The complainant then cried out in pain.

[12] On another incident, she was coming from school . Her mother and the
siblings were not at home. She found the accused in one of the unused flats as she
went to check the keys to the main house. After she found the keys, she went to the
main house to undress the school uniform. Because she was tired, she decided to
sleep on the bed. After waking up, she found the accused lying beside her. Despite
resistance, he removed her underwear and forceful ly engaged in anal intercourse
causing her an excruciating pain.

[13] The complainant testified that in both incidents the accuse d threatened her not
to disclose the incident s to anyone. His intimidating demeanour and a scary face, so
she explained, prevented her from reporting the abuse to her mother. Asked to
explain what rape is, the complainant testified that it is when a male organ i s inserted
in the vagina or even anus. W hen asked to explain how she knew about the
definition of rape, she testified that she learnt it from school.

[14] Furthermore, in her testimony, the complainant informed the court that on 13
October 2024 , prior to her mother’s return from church, the accused approached her
while she was bathing. Although no incident occurred on that specific day, she felt
encouraged to disclose the encounter to her mother , in addition to the previous
incidents.

[15] After the closure of the state’s case, the accused testified in his defence. He
denied the allegations against him. According to his version, on 13 October 2024
he had a quarrel with the complainant over who should wash the dishes. In her
anger state, the complainant said she would get him. After that incident, he
accompanied the drive r to take the complainant’s mother to church. Thereafter he
went to watch the proceedings of a soccer tournament.

[16] Later that day, he returned home and saw the complain ant and her mother
leaving the premises . Unexpectedly , the police entered the premises and informed
him that he was unde r arrest. The accused suggested a motive for the complainant
to falsely implicate him, stating that the quarrel he had with the complain ant that
morning might be one of them.

[17] When questioned about the Dr’s findings in the medical report, the accused
testified that without DNA analysis, it cannot be concluded that he raped the
complainant. He further pointed out that although the Dr documented the
complainant’s injuries, the Dr’s report did not directly implicate him in the
commission of the rape crimes . With this evidence, the defence closed its case.

The issues

[18] Considering the fact that the rape incidents are not in dispute, the focal issue for
determination is the identity of the perpetrator.

The legal principles

[19] In our law , the basic principle is that the state must prove the guilt of the
accused beyond reasonable doubt. In order to be acquitted, the version of the
accused need only be reasonably possible true.

[20] One should acknowledge that the complainant is a single witness to the rape
incidents. She is also a child and therefore her evidence must be approached with
caution. Fortified by the provisions of s 208 of the CPA, our courts had on many
occasions convict ed the accused on the evidence of a single witness. The section
reads as follows:

‘An accused may be convicted of any offence on the single evidence of a
competent witness .’

[21] Although there is no standardised test or formula to apply for evaluating the
credibility of a single witness’s evidence, the Appellate Division4 provided guidance.
According to the guidance, the court is required to examine the evidence, weighing

4 S v Sauls 1981(4) 172 (A) at 180E -G.
its strengths and weaknesses, then establish whether it is reliable and trustworthy ,
despite its flaws and contradictions, if any . Furthermore, the exercise of caution
cannot replace the exercise of common sense. It is noteworthy that the evidence of a
single witness must be clear and precise in all material aspects.5

[22] To test the reliability of the evidence of a child witness, as stipulated in terms
of s 208 of th e CPA, the SCA established a legal precedent in Woji v Santam
Insurance Co Lt d (Woji).6 In terms of Woji, the court must be satisfied that the
evidence of a child is trustworthy. In establishing a guiding principle, the court held:

‘Trustworthiness …depends on factors such as the child’s power of observation ,
his power of recollection, and his power of narrati on on the specific matter to be
testified….His capacity of observation will depend on whether he appears
‘intelligent enough to observe’. Whether he has the capacity of recollection will
depend again on whether he has ‘sufficient years of discretion to rem ember
what occurs ’ while the capacity of narration or communication raises the
question whether the child has the capacity to understand the questions put,
and to frame and express intelligent answers .’[italics added].

[23] Although our courts have established the law for evaluating the evidence of
a single witness and a child, it has never been a standing rule that the evidence of a
child witness must be corroborated.7 The Supreme Court of Appeal in ICM v The
State8 referred to Vilakazi v S9, and cautioned against what is commonly known as
the double cautionary rule. The SCA held that the double cautionary rule should not
be used to disadvantage the child, the evidence of a child must be evaluated in
totality.

[24] In the past, the courts applied cautionary rules more stringently in sexual
offence cases, often viewing victim ’s testimony with undue scepticism. However, the

5 R v Mokoena 19 32 OPD 79 at 80. “Satisfactory in all respects” should not mean the evidence line -
by-line, but in the overall scheme of things …, see McKenzie v S (A143/2023) [2025] ZAWCHC 132
(6 March 2025) at para. 16.
6 1981(1) SA 1020 (A) at 1028B -D, Maila v The State (429/2022) [202 3] ZASCA 3 (23 January 2023)
at para 17 .
7 R v Manda 1951(3) SA 158 (A) at 163 , The law of South Africa vol 9 at 33 para 560.
8 (692/2021) [2022] ZASCA 108 (15 July 2022 at para [22].
9 [2016] ZASCA 103 .
SORMA aims to change this narrative, deeming it improper for the courts to be
overly doubtful or sceptical when evaluating the evidence merely because of the
sensitive nature of the crime. Section 60 of SORMA which is f ramed in discretionary
terms provides that:

‘The court may not treat the evidence of a complainant in criminal
proceedings involving the alleged commission of a sexual offen ce pending
before that court with caution, on account of the nature of the offence .’

Therefore, the facts presented should be considered as a whole without any
prejudice to either of the parties involved. The ultimate test being proof beyond
reasonable doubt.

Discussion

[25] With these principles in mind, I now turn to evaluate the evidence that has
been presented in the proceedings. To begin with, I am obligated to weigh up all the
elements that point towards the guilt of the accused against all th ose which are
indicative of his innocence . In addition, I must take a proper account of inherent
strengths and weaknesses, probabilities and improbabilities on both sides . Having
done all of that, it is significant decide whether the balance weighs so heavily in
favour of the state a s to exclude any reasonable doubt about the accused’s guilt .10

[26] Although Mr Solani was very brief in his closing remarks, he bemoaned the
complainant’s failure to timely report the incident s to her mother. This reminds me of
what JR Milton11 says in his body of work. At page 461, the learned author says , it is
a well -recognised fact that many survivors of rape exhibit reluctance to report the
incident at a first available opportunity. Research on the impact of violence including
rape on women has consistently shown that victims exhibit unique emotional

10 Shiki v S [2020] ZASCA 92 (SCA).
11 JR Milton South African Criminal Law and Procedure Vol ii 3 ed at 461 .
response to the trauma.12 The common immediate reactions include frozen fright,
dissociation, shoc k, numbness and disbelief.13

[27] In this instance, i t is crucial to consider the uncontested evidence of the
complainant where she stated that the accused exhibited an intimidating and a scary
face after the incident s, warning her that if she disclosed what had happened, he
would never assist at home again. In any event s 59 of SORMA cautions against
drawing of a negative inference from a complainant’s delayed reporting. This section
which is also couched in discretionary terms states that no inference can be drawn
solely based on the delay between the alleged incident and its reporting. Considering
these principles and the facts of this particular case, the complainant’s action s and
her explanation after the rape incide nts is plausible and cannot be faulted.

[28] Despite the accused’s suggestion that the absence of DNA evidence linking
him to the crimes is critical , it is remarkable to recognise that the facts of this case
are distinguishable from the principles of identification that are encapsulated in S v
Mthethwa .14 Although caution is imperative, the accused is well -known to the
complainant . They stayed under the same roof and the incidents occurred during the
day.

[29] Upon examination of the evidence before me, I find the complainant to be a
credible and reliable witness. Her narration of events was clear and precise. Despite
being subjected to cross -examination, she remained steadfast in her account .
Throughout the criminal justice process, she consistently mai ntained that the
accused was the perpetrator of the rape crimes. Moreover, the undisputed facts of
the case further enhance her credibility as a witness. Notabl y, when she felt
compelled to reveal the accused’s actions, she did so with honesty.

[30] The suggestion by the accused that the complainant’s accusation s are as a
result of the quarrel he had with her on 13 October 2024 are not supported by the
facts. The complainant honestly testified that on 13 October 2024, despite the

12 S Bollen et al ‘Violence Against Women in Metropolitan South Africa: A study on impact and service
delivery’ Institute for Security Studies (1999) Monograph No.41.
13 S Ullman & R Knight ‘Women’s Resistance Strategies to Different Rapist Types’ (1995) 22 No 3
Criminal Justice & Behavior 263,280.
14 1972(3) SA 766 AD.
accused’s attempts to repeat the offence, nothing happened. Therefore, the quarrel
over who should wash the dishes is separate and distinct from the rape incidents.

[31] I acknowledge that the absence of a motive to lie should not be used to
intensify the complainant’s credibility and prejudice the accused .15 However, each
case is judged on its own facts. In instance s where the accused has spontaneously
suggested a motive for the complainant to falsely implicate him, as in the present
case, it is significant to make a finding.

[32] Considering her age, the complainant demonstrated a remarkable maturity in
her description of the accused. She classified him as a very helpful person at home
often assisting her with her homework and other tasks . This suggests that she did
not hold any pr e-existing grudges against him. After consideration of the facts
presented, I find no reason for the complainant to shield the real culprit and falsely
implicate the accused. The evidence and probabilities overwhelmingly point to the
accused as the perpetr ator of the rape crimes . Therefore, the state has proved the
guilt of the accused beyond reasonable doubt. In the result, the accused ’s bare
denial of the allegations is not reasonably possibly true.

Verdict

[33] The verdict is pronounced as follows:

1. The accused is found guilty to the crime of rape in contravention of s 3 read
with s s 1, 56(1), 58, 59 and 60 of the Criminal Law (Sexual Offences and
Related Matters Amendment Act , 32 of 2007, read with s 94 of the Criminal
Procedure Act 51 of 1977 and further read with the provisions of s 51(1), Part
1 of Schedule 2, of the Criminal Law Amendment Act 105 of 1997 as charged.


_____________________ _
N CENGANI -MBAKAZA
ACTING JUDGE OF THE HIGH COU RT

15 ICM fn. 7 above at para 35.


APPEARANCES :

For the state : Adv Van Rooyen
DPP, Grahamstown

For the accused : Adv So lani
Legal Aid -SA, Grahamstown

Date Heard : 24, 25, and 26 March 2025
Date Delivered : 27 March 2025