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S.J.T v S (A21/2023) [2025] ZAFSHC 126 (8 May 2025)

82 Reportability
Criminal Law
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Brief Summary

Criminal Law — Rape — Appeal against conviction and sentence — Appellant convicted of raping his 14-year-old stepdaughter and sentenced to life imprisonment — Appellant's appeal contended that the trial court erred in finding the State proved its case beyond a reasonable doubt and that there were no substantial and compelling circumstances to deviate from the minimum sentence — Court upheld the conviction, finding the complainant's testimony credible and corroborated by DNA evidence, and that the trial court properly considered the gravity of the crime in sentencing.

Comprehensive Summary

Case Note


The case is titled S[…] J[…] T[…] v The State with the case number A21/2023. The matter was heard in the High Court of South Africa, Free State Division, Bloemfontein on 03 February 2025, and the judgment was delivered by email on 08 May 2025.


Reportability


This case is reportable due to its sensitive subject matter and the serious nature of the charges encountered during a lengthy trial. The judgment addresses key evidentiary issues, including the handling of DNA evidence and the application of cautionary rules concerning a minor witness’s testimony. Its significance also lies in the appellate court’s application of established principles in reviewing the trial court’s factual findings.


The reportability is further underscored by the comprehensive analysis of conflicting testimonies and the detailed explanation as to why the trial court’s findings should be deferred unless a clear misdirection is evident. The judgment serves as an important precedent for cases involving similar evidentiary challenges and the credibility of vulnerable witnesses.


Cases Cited


Key cases referenced in the judgment include R v Dhlumayo & Another (1948) 2 SA 677 (A); S v Mlumbi (1991) 1 SACR 235 (SCA) at 247g; AM & Another v MEC Health, Western Cape (2021) 3 SA 337 (SCA) at paragraph 8; S v Sauls (1981) 3 SA 172 (A) at 180E – G; Woji v Santam Insurance Co Ltd (1981) 1 SA 1020 (A) at 1028B – C; and S v Mahlangu (2011) 2 SACR 164 (SCA) at 171B.


Legislation Cited


The relevant legislation referenced in the judgment includes the Criminal Law Amendment Act 105 of 1997 and the Criminal Procedure Act No. 51 of 1977.


Rules of Court Cited


No explicit rules of court were cited in this judgment apart from the application of the cautionary rules associated with a child witness’s testimony.


HEADNOTE


Summary


The appellant was convicted for the rape of his 14-year-old stepdaughter following a detailed trial that heavily relied on forensic evidence and the testimony of a vulnerable child. The trial court determined that the DNA forensic evidence and the detailed account provided by the complainant, despite her young age, were sufficient to uphold a conviction. This judgment reaffirms the principle that corroborative evidence is not always required when the credibility of a single witness is established.


In reaching its decision, the court carefully considered the chain of custody for the DNA evidence and the consistency of the complainant’s account even after extensive cross-examination. The defendant’s version, which attempted to shift blame to the complainant’s behavior and character, was found unconvincing. The court maintained that the trial judge’s observation of the witness’s demeanour and the supporting medical evidence were critical to affirming the conviction.


Ultimately, the appellate review found no merit in the appellant's arguments regarding evidentiary inconsistencies or misdirection by the trial court. The clear factual findings and the adherence to legal principles led to the dismissal of the appeal against both conviction and sentence.


Key Issues


The first key issue was whether the testimony of the minor witness could be reliably accepted despite her vulnerability, given the inherent challenges of cross-examining a child. The court examined the application of the cautionary rules and the overall credibility of her account, ultimately upholding its weight in the trial.


Another important issue was the integrity of the DNA evidence, particularly the management of the chain of custody and the sufficiency of requiring a second blood sample from the appellant. The court found that there was no evidence to contradict the established procedures, thereby reinforcing the reliability of the forensic findings.


A further issue centered on the overall deference afforded to the trial court’s factual findings by the appellate court. As the appellant argued that misdirection occurred in how the facts were established, the court reiterated that appellate interference is only justified in cases of clear error, a standard that was not met in this instance.


Held


The court held that the findings of the trial court were sound and that there had been no clear misdirection or error in the evaluation of evidence. The court found that the totality of the evidence, including the DNA forensic evidence and the detailed testimony of the complainant, was sufficient to sustain the conviction.


It was further determined that the appellant’s appeal, which contested both the conviction and the sentence, did not meet the necessary threshold to disturb the trial court’s judgment. The appellate court emphasized that revisiting factual determinations made during a lengthy trial is generally unwarranted absent demonstrable error.


Accordingly, the appeal was dismissed, and the conviction along with the sentence of life imprisonment was upheld.


THE FACTS


The facts of the case reveal that the appellant, who was in a relationship with the complainant’s mother, lived in the same household as the complainant and her younger sister. On Sunday, 19 May 2013, the incident occurred in the confined space of a one-roomed shack, where boundaries between the private and common areas were minimal, adding complexity to the factual scenario. The complainant, who initially slept on the couch but elected to use the bed on that particular night, later experienced severe pain that led her to discover the assault.


Following the incident, the complainant’s actions, including her attempt to hide the occurrence and subsequent distress as she traveled to school, were critical in prompting the involvement of family members and eventually the police. The timing of events, the limited environmental resources, and the presence of multiple individuals in the household contributed to the narrative established during the trial. The physical evidence, including medical reports indicating vaginal abrasions and DNA evidence, played a vital role in corroborating the complainant’s account.


Despite the appellant’s assertion that he had been elsewhere and that the events were misrepresented, the consistency of the complainant’s testimony along with the supporting forensic evidence left little room for doubt. The prosecution’s reliance on the chain of custody for the DNA and the detailed account maintained by the child witness were instrumental in reinforcing the factual matrix of the case.


THE ISSUES


The legal issues necessitated an examination of whether a single, albeit competent, witness’s evidence was sufficient for a conviction, especially given the complainant’s minor status. The court had to decide if the cautionary measures applied to the witness’s testimony were adequate to safeguard against potential bias or misunderstanding. These aspects were critical in evaluating the overall credibility of the evidence.


Another issue was related to the evidentiary integrity of the DNA sample gathered from the appellant. Questions arose as to whether the procedures followed in establishing the chain of custody were robust and if the requirement for a second blood sample had any bearing on the credibility of the forensic evidence. The court’s detailed review of these procedures was central to addressing the appellant’s challenges.


Furthermore, the appellate court had to assess whether it was appropriate to disturb the trial court’s factual determinations. The issue revolved around the longstanding principle that appellate courts should refrain from re-weighing evidence unless a clear error or misdirection in applying the law is demonstrated. This principle was crucial in steering the final outcome of the appeal.


ANALYSIS


The court’s analysis commenced with a meticulous review of the trial court’s evaluation of both testimonial and forensic evidence. The evidence provided by the complainant, despite her young age, was scrutinized under the protective cautionary rules applied to child witnesses. The persistence and consistency of her account, even under intense cross-examination, underscored the reliability of her statement.


In examining the DNA evidence, the court noted that the chain of custody had been properly maintained throughout the process. The necessity for a second blood sample from the appellant was explained and did not detract from the evidentiary weight of the forensic findings. The analysis demonstrated that the DNA evidence reliably corroborated the complainant’s version of events, making it unjustifiable to question its integrity.


Furthermore, the appellate court reaffirmed the principle that factual determinations made by a trial judge should be respected unless there is clear misdirection or an evident error. The appellant’s contentions regarding improbabilities in the sequence of events and inconsistencies in witness testimony were found unpersuasive within the broader context of the evidence. This methodical approach ensured that the trial court’s error, if any, was not sufficient to disturb the conviction.


REMEDY


The remedy provided by the court was to dismiss the appeal entirely, thereby upholding both the conviction and the sentence imposed by the trial court. This decision reinforced the legal threshold required for appellate courts to overturn findings made by trial judges during lengthy and complex proceedings.


By dismissing the appeal, the court effectively confirmed that the trial court had not erred in its assessment of the evidence or in the application of the relevant legal standards. The inherent deference to the trial court’s detailed evidentiary findings was a central factor in arriving at this remedy.


The ultimate outcome was a reaffirmation of the sentence of life imprisonment, leaving the appellant’s conviction intact. The remedy served to underline the importance of adhering to established legal principles when reviewing factual determinations from a lower court.


LEGAL PRINCIPLES


One key legal principle highlighted in this judgment is the deference an appellate court must give to the trial court’s factual findings. The court reaffirmed that a lower court’s decision should only be set aside if there is a clear misdirection or an obvious error in the findings, a standard that remains difficult to meet on appeal.


Another principle is the acceptance of a competent single witness’s testimony under section 208 of the Criminal Procedure Act. The judgment emphasized that corroboration is not obligatory if the evidence presented is trustworthy and detailed, particularly when appropriate cautionary rules have been applied to vulnerable witnesses.


Lastly, the case reinforces the integrity of the chain of custody in forensic investigations. It underlines that meticulous adherence to procedural standards in collecting and handling DNA evidence is essential to uphold its admissibility and probative value in criminal trials.

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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

Not Reportable / Reportable
Case No: A21/2023

In the matter between:
S[…] J[…] T[…] APPELLANT

And
THE STATE RESPONDENT

Neutral citation: S[…] J[…] T[…] v The State ( A21/2023)
Coram: Chesiwe, J et Daniso, J
Heard: 03 February 2025

Delivered: This judgment was delivered by email to the parties and release
to SAFLII. It shall be deemed to have been delivered at 09 h00 on
08 May 2025

ORDER

1. The appeal against conviction and sentence is dismissed.
2


JUDGMENT

Daniso, J

[1] The appellant was arraigned and convicted by the regional court, Bloemfontein
for the rape of his 14 -year-old stepdaughter. He was subsequently sentenced to life
imprisonment the court having found no substantial and compelling circumstances warranting a deviation from the minimum sentence prescribed in terms of the Criminal Law Amendment Act 105 of 1997 (the CLAA).

[2] The appellant was convicted after pleading not guilty. This opposed appeal is
directed against both conviction and sentence.

[3] In convicting the appellant, the trial court relied on the testimony of the
complainant , Sergeant Jacob Kotoane and Constable Mamatsididi Elizabeth Phiri who
testified in relation to the chain of custody of the deoxyribonucleic acid ( the DNA)
evidence.

[4] At the time of the incident, t he appellant was in a love relationship with the
complaint’s mother. He lived with her , the complainant and the complainant’s younger
sister L […].
[5] The conviction arose from the incident which took place on Sunday 19 May 2013
at their residence. The summary of State’s case is that earlier on the day of the
incident, the appellant fetched the complainant and L[...] from their grandmother’s
home. When they got home it was late in the evening, the complainant prepared school
lunches for the next day whilst the appellant and L[...] watched television. Their mother
was in hospital for breast surgery.
3


[6] The residence was a one roomed shack divided by a curtain separating the
bedroom which had one bed and the living area. The complainant usually slept on the
couch however on this evening she went and slept on the bed. She woke up later and
saw that the appellant was also sleeping on the same bed, L[...] was in the middle. She
fell asleep again only to be woken up by a pain in her private parts. When she opened
her eyes, she saw the appellant on top of her raping her . He told her that he wanted to
sleep with her and asked whether it was the first time that she had sexual intercourse.
At that time, he had already undressed and penetrated her vagina with his penis. When
the complainant tried to push him off he offered her R50 and continued to rape her .
When he was done, he got off her and slept.

[7] L[...] was still very young as a result she slept through the incident. In the
morning the appellant prepared water for the complainant and L[...] to bath and told the
complainant not to tell anyone about the incident . The complainant was still in pain in
the morning she could not even relieve herself . On the way to school she started to feel
anxious . She told L[...] to continue on her way to school and went back home, packed
her belongings and went to her aunt Mpho Mojakgomo’s house.

[8] Upon arriving at her aunt’s house she relayed the incident to her aunt who
suggested that they should go to the complainant’s grandmother’s house. When the
complainant arrived at her grandmother’s house she went and sat in the toilet afraid of
how her grandmother would react if she told her about the rape. Her grandmother
noticed that she was limping as a result she had to tell her about the rape. The
complainant’s other aunt S […] M[…] arrived and upon being informed about the rape
she called an ambulance and the police. The complainant was transported to National
Hospital by ambulance where she was examined. A rape case was also opened.

4

[9] The appellant testified in his defence. His version differs with the State’s version
only in respect of the rape. He testified that on the day of the incident he was at the
University of Free State playing soccer. When he arrived home with the complainant
and the seven- year-old L[…] he was very tired he went to sleep leaving the complainant
and L[...] preparing school lunches for the next day. He denied having raped the
complainant and stated that he only woke up to remind L[...] to switch off the television
thereafter he slept until the next morning. He woke up and helped the complainant and
L[...] to prepare for school thereafter they all left. He went to work whilst the complainant
and L[...] went to school .

[10] He explained that the reason for the complainant to falsely implicate him in the
rape was because he had told her that she must go live with her grandmother and this
after he discovered that in addition to bunking school , the complainant was also
accused by her school teacher for stealing money. It was his testimony that the
complainant was an uncontrollable child. She regularly bunked school, spent nights out
away from home stole his money.
[11] With regard to the evidence of the DNA, he confirmed that a blood specimen was
obtained from him. He told the court that he could not admit or deny that the DNA
sample extracted from the complainant’s vaginal swab matched his DNA as he had no
knowledge of how DNA work s.

[12] The principle applicable in appeals where the factual findings of a trial court are
attacked is trite : a court of appeal is not entitled to interfere with or tamper with the trial
court’s judgment or decision regarding either conviction or sentence unless it ( the court
of appeal) finds that the trial court misdirected itself as regards its findings of facts or the
5

law.1 The principle was also restated in AM & Another v MEC Health, Western Cape2 as
follows:

“It is trite that an appeal court is reluctant to disturb findings of that character by a trial
judge, who was steeped in the atmosphere of a lengthy trial and had the advantage of
seeing and hearing the witnesses. Such findings are only overturned if there is a clear
misdirection or the trial court’s findings are clearly erroneous. That has consistently been
the approach of this court….”

[13] In the grounds of appeal including the heads of argument, the appellant attacks
the conviction on the grounds that:

“(i) The trial court erred in finding that the State proved its case beyond a reasonable
doubt;

(ii) The trial court erred in not taking into account that there were two results of DNA
whereas appellant only gave his blood sample once;

(iii) The trial court erred in not taking into account that the Complainant’s statement
does not have a date upon which it was commissioned; and

(iv) The trial court erred in not considering the fact that the complainant contradicted
herself during her testimony.”

[14] It is the appellant’s case that the complainant’s version was also riddled with
improbabilities namely that: it is improbable that the appellant would decide to rape the complainant on that day whereas he stayed with her for many years without raping her
and would also rape her in the presence of her younger sister L[...] on the same bed
without L[...] hearing what was happening. According to the appellant, i t is also

1 R v Dhlumayo & Another 1948 (2) SA 677 (A); S v Mlumbi 1991 (1) SACR 235 (SCA) at 247g.
2 2021(3) SA 337 (SCA) at paragraph 8.
6

improbable that the complainant would not wake L[...] up at the time she was being
raped and would also not feel being undressed.

[15] In the record of the proceedings, it is clear that the trial court was alive to the
cautionary rule applicable to the complainant’s evidence due to her young age and also
as a single witness to the rape. The trial court took into account that despite her young
age the complainant was able to explain in detail how she was raped by the appellant ,
her version remained intact even after intensive cross -examination, th ere was nothing in
her evidence which pointed to an ulterior motive for implicating the appellant in the rape
and her ver sion was also corroborated by the J88 medical evidence Exhibit “B”
indicating vaginal abrasions and a probability of penetration including the DNA forensic evidence linking the appellant to the rape, Exhibit “I.”

[16] A child witness’s veracity and ability to give a succinct version of the events is an
important consideration in applying the cautionary rules .
3 Steadfastness and
corroboration is also a clear indication that the complainant’s version was not an
afterthought but a reliable account of how she was violated by the appellant. [17] In terms of section 208 of the Criminal Procedure Act
4 an accused may be
convicted of any offence on the evidence of any competent single witness. The court
need only find that the evidence was trustworthy and that the truth has been told in that
case, corroboration is not even necessary.5

[18] There is no merit to the appellant’s complaint regarding the veracity of the DNA
evidence. The evidence relayed by sergeant Kotoane and constable Phiri in relation to

3 S v Sauls 1981 (3) SA 172 (A) at 180E – G and Woji v Santam Insurance CO Ltd 1981 (1) SA 1020 (A) at 1028B -C.
4 Criminal Procedure Act No, 51 of 1977.
5 S v Mahlangu 2011 (2) SACR 164 (SCA) at 171 B.
7

the chain of custody of the DNA evidence was not gainsaid by any evidence to the
contrary . A cogent explanation was given for requiring and also obtaining a second
blood sample from the appellant. It is also important to note that it was indisputable that the DNA samples extracted from the complainant’s vaginal swabs matched the
appellant ’s DNA.

[19] Similarly, the deficiency pertaining to the commissioning of the complainant’s
statement is a non- issue. A statement does not constitute evidence to prove an offence
it is merely an investigative tool to determine whether a crime has been committed and
the identity of the perpetrator .
[20] There is nothing improbable about the circumstances under which the
complainant was raped. On the facts germane to this matter the complainant’s mother
was away from home and that could have present ed the appellant with an opportunity to
violate the complainant. Furthermore, it is pure conjecture that a seven- year-old L[...]
who was sleeping should have heard when the complainant was being raped. In any
event, what would a seven- year-old have done under those circumstances even if she
had woken up during the rape. The assertion that the complainant should have felt
being undressed is also unsound as it was her testimony that immediately before she
felt the pain of being penetrated, she was asleep.

[21] Based on all the above reasons, I hold the view that the trial court was correct in
its conclusion that the State had proved the guilt of the appellant beyond a reasonable
doubt, he was correctly convicted.
[22] Regarding sentence, a court may impose a lesser sentence than the sentence
prescribed by the CLAA only when the court is convinced the imposition of the
8

prescribed sentence would be unjust or disproportionate to the crime, the criminal and
the legitimate needs of society .6

[23] The trial court is criticized for its finding that there were no substantial and
compelling factors to deviate from the prescribed minimum sentence of life
imprisonment essentially on the basis that the appellant was a first offender in that
respect, it is argued that the sentence of life imprisonment is shockingly harsh and strikingly inappropriate.

[24] The fact that the appellant is a first offender on its own, does not constitute a
substantial and compelling reason to justify a deviation from the prescribed minimum
sentence. For this view, I am aligning myself with Satchwell, J’s conclusions in S v Muller [2006] ZAGPHC 51 (23 May 2006) that:

“[55] The Statute prescribes one sentence for all rapists convicted of rape or
rapes which fall within the categories or circumstances described in Part I
irrespective of the rapist’s previous clean or sullied criminal record.”

[59] …There is no authority for the proposition that the previous clean record
of an accused convicted of offences in Part I of Schedule 2 constitutes, in
and of itself, a substantial and compelling circumstance. At most it would
be one of the considerations considered for exploring the possibility that,
in conjunction with other factors, it may persuade the sentencing court to
make such a finding.”

[25] In this matter, there is a number of aggravating factors namely, the age of the
complainant at the time of the rape, that at such a tender age of 14 years she was
raped by a person who was HIV positive thus exposed to the HI virus, that as her stepfather , the complainant was entrusted in his care. The appellant’s personal
circumstances as recorded by the trial court including his age, occupation, education,

6 S v Malgas 2001 (1) SACR 469 (SCA) para 22; S v Dodo 2001 (1) SACR 594 CC.
9

family and community background cumulatively, when weighed against the aggravating
factors do not constitute substantial and compelling reasons to deviate from the
prescribed minimum sentence.7

[26] The gravity of sexual violations of children in the domestic sphere was succinctly
summed up by Cameron JA in S v Abrahams8 as follows:

“Of all the grievous violations of the family bond the case manifests, this is the most
complex, since a parent, including a father, is indeed in a position of authority and
command over a daughter. But it is a position to be exercised with reverence, in a
daughter’s best interests, and for her flowering as a human being. For a father to abuse
that position to obtain forced sexual access to his daughter’s body constitutes a
deflowering in the most grievous and brutal sense.”

[27] The nature and the seriousness of child rape can never be over emphasized. In
S v D 1995(1) SACR 259(A) it was pointed out that:

“Children are vulnerable to abuse, and the younger they are, the more
vulnerable they are. They are usually abused by those who think they can get
away with it, and all too often do. … ” Appellant’s conduct in my view was
sufficiently reprehensible to fall within the category of offences calling for a sentence both reflecting the courts disapproval and hopefully acting as a
deterrent to others minded to satisfy their carnal desires with helpless
children.
9

[27] A victim impact report was not presented in the court a quo, the court trial court
relied (correctly so) on the complainant’s testimony that as a result of the rape she was
left traumatized to the extent that she feared to be in public. In addition, at the time of the rape the complainant’s health was already compromised due to chronic illnesses.

7 S v Vilakazi 2012 (6) SA 353 (SCA).
8 2002 (1) SACR 116 (SCA) at p age 123 at para 17.
9 At page 260 f -g.
10


[28] In respect of serious and prevalent crimes such as child rape, retribution and
deterrence must come to the fore.10 It is in that regard that I am of the view that the trial
court exercised its discretion properly and judicially in imposing the sentence of life
imprisonment. Accordingly, there is no basis to interfere with the sentence, it reflects the
gravity of the crime and it also speaks to the plight of the victims and the society. In the result, I would make the following order:

Order

(1) The appeal against conviction and sentence is dismissed.

NS DANISO, J

I concur

S CHESIWE, J

On behalf of Appellant: Mr P van d er Merwe
Instructed by: Legal Aid South Africa

BLOEMFONTEIN

On behalf of respondent: Adv. L Mkhabela
Instructed by: The Director of Public Prosecutions

BLOEMFONTEIN


10 S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) at 519d- e.

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