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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 370/2023
In the matter between:
CHARLES PHOGOLE APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Phogol e v The State (370/2023) [2024] ZASCA 54 (9 May
2025)
Coram: MAKGOKA , MOKGOHLOA and M OTHLE JJA
Heard : 20 Ma y 2024
Delivered : 9 May 2025
Summary: Criminal law and procedure – evidence of a single witness in a
rape case – whether evidence was sufficient to sustain conviction despite
contradict ions in the testimony of a single witness – whether there are
substantial and compelling circumstanc es justifying the imposition of a lesser
sentence than life imprisonment.
2
ORDER
__ ___
On appeal from: Gauteng Division of the High Court, Johannesburg (Khumalo
J and Matthys AJ sitting as court of appeal):
1 The appeal against conviction is dismissed.
2 The appeal against sentence is upheld.
3 The order of the full bench in respect of sentence is set aside and replaced
with the following:
‘(a) The appeal against sentence is upheld.
(b) The sentence imposed by the trial court is set aside and replaced with the
following:
“The accused is sentence d to 10 years’ imprisonment ”.’
4 The sentence in paragraph 3 (b) is antedated to 12 February 2015 in terms of
s 282 of the Criminal Procedure Act 51 of 1977.
JUDGMENT
__ ___
Mokgohloa JA (Mothle concurring) :
Introduction
[1] This appeal concerns the rape of an 8-year-old girl, wh ich occurred in
2010 or 2011 , in a toilet at a tavern. The rape occurred during the day whilst she
was playing with her friends.
[2] The appellant was convicted in the Regional Court Johannesburg, hel d in
Alexandra (the trial court) on 26 November 2014. The conviction was for rape ,
in contravention of s 3 of the Sexual and Related Matters Amendment Act 32 of
2007 (the Ac t). He was sentenced to life imprisonment on 12 February 2015 . In
3
terms of s 309(1) of the Criminal Procedure Act 51 of 1977 (the CPA), read
with s 10 and s 43(2) of the Judicial Matters Amendment Act 42 of 2013, once
the regional court imposes a sentence of life imprisonment, the appellant was
entitled to an automatic right of appeal to a full bench of the high court. The
Gauteng Division of the High Court, Johannesburg , per Khumalo J and Matthys
AJ (the full bench ), dismissed the appeal on both conviction and sentence. The
appeal before us is against the judgment of the high court, with special leave of
this Court.
[3] Counsel for the appellant contended that the State did not prove its case
beyond reasonable doubt; that the trial court failed to apply the cautionary rule
in evaluating the evidence of a single child witness; and that the evidence of the
complainant was not satisfactory and reliable and was inconsistent. Counsel
contended further , that it was improbable in that the complainant was raped in
light of the delay in her reporting of the incident; that she could be r aped in the
toilet at a tavern with no eyewitness ; that she did not initially indicate that the
appellant lifted her up during the rape ; and that she informed her grandmother
that she was bleeding and the grandmother did nothing. According to counsel,
the trial court misdirected itself by not accepting the evidence of the appellant
as being reasonably and probably true in that the mother of the complainant
influenced the complainant to falsely implicate him.
[4] The issues for determination before this Court are whether the appellant
was properly convicted on the evidence of a chil d single witness; whether the
trial court was correct to reject the evidence of the appellant as not being
reasonably and probably true ; and whether the sentence of life impris onment
imposed on the appellant was shockingly inappropriate.
4
[5] In the trial, the state led evidence of three witnesses , the now 11-year-old
complain ant, her mother Ms S[...] P[...] (Ms P[...] ), and Ms Mashudu
Nemotanzila (Ms Nemotanzila), a forensic nurse who examined the
complainant. The appellant testified in his defence . It is common cause that the
appellant is well known to the complainant as her mother’s friend. It is further
common cause that the complainant was approximately eight year s old when
the incident occurred, and she testified about an incident that occurred four or
five years before.
The facts
[6] The facts of this case can be summarised as follows. During the year
2010 or 2011 , the complainant was playing a game of ‘hide and seek’ with her
friends outside her grandmother’s house. The appellant approached her at the
hiding place, pulled her away and took her to a toilet at a ne arby tavern. The
appellant undressed her , undressed himself and raped her. According to the
complainant, the appellant lifted her and pressed her against the wall and raped
her. This happened inside the toilet, and it was daylight. Thereafter, the
appellant ordered her to go home.
[7] She went home and did not tell her gra ndmother about the rape as she
was afraid that she will give her a hiding. She only revealed this incident to her
mother much later when there was another incident of children being raped in
her community .
[8] Ms P[...] , the complainant’s mother, testifi ed that , on 5 January 2014 , she
learnt about the rape of children who had been friends with the complainant .
She enquired from the complainant and her sibling if they were ever rape or
touched by the person accused of raping the other children. The complai nant
and her sibling denied being raped or touched. Ms P[...] indicated that she
5
would take them to the doctor to confirm that they were not raped. It was at that
point that the complainant started to cry and informed her mother that the
appellant had rap ed her. Ms P[...] reported the rape to the police and the
complainant was taken to the clinic for her to be examined.
[9] Ms Nemotanzila , confirmed that she examined the complainant on 6
January 2014. Upon her examination, she found that the complainant’ s hymen
was not in tact and had a cleft. She testified that her finding s were consistent
with a history of previous penetration. Ms Nemotanzila t estified that the
complainant reported to her that, during 2011 , a man known to her took her to a
toilet at a tavern where he undressed and did naughty things with her.
[10] The appellant testified in his defence and denied having raped the
complainant. His defence was that he had been in a secre t love relationship with
Ms P[...] for about ten years. The last time he saw Ms P[...] was on 31
December 2013 when they were at his house. Ms P[...] asked him for money.
He told her that the did not have money and this made her angry. The appellant
testified that he was arrested on 5 January 2014 . He believed that Ms P[...]
influenced the complainant to lay false charges against him and falsely
implicate him because he refused to give her money that she requested on 31
December 2013.
[11] Both the full bench and t he trial court accepted the evidence of the
complainant, Ms P[...] and Ms Nemotanzila and rejected that of the appellant.
While they found some inconsistencies with the evidence provided by the
complainant and Ms P[...] relating to the position the complainant was in when
she was raped, both courts were satisfied that the evidence of the complainant
was satisfactory and sufficient to convict the appellant of rape.
6
Conviction
[12] It is common cause that t he complainant was a sing le witness and a child.
For some years, the evidence of a chid witness, particularly as a single witness,
was treated with caution. This was because it was stated that a child witness
could be manipulated to falsely implicate a particular person as the per petrator
thereby substituting the accused person for the real perpetrator. In Woji v
Santam Insurance Co Ltd (Woji ),1 this Court stated that , to ensure that the
evidence of a child can be relied upon, a court must be satisfied that the
evidence is trustworthy. The Court noted factors which must be taken into
account to come to a conclusion that the evidence is trustworthy. In this regard ,
the C ourt held as follows :
‘Trustworthiness . . . depends on factors such as the child’s power of observation, his power
of recollection, and his power of narration on the specific matter to be testified. In each
instance the capacity of the particular child ha s to be investigated. 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
remember what occurs” wh ile 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” . . . There are other factors as well which the Court will take into accou nt
in assessing the child’s trustworthiness in the witness -box. Does he appear to be honest – is
there a consciousness of the duty to speak the truth? Then also
“the nature of the evidence given by the child may be of a simple kind and may relate to a
subject-matter clearly within the field of its understanding and interest and the circumstances
may be such as practically to exclude the risks arising from suggestibility” . . .
At the same time the danger of believing a child where evidence stands alone mu st not be
underrated.’2
[13] In terms of s 208 of the CPA , it is competent for a court to convict on the
evidence of a single witness. However, the evidence of a single witness must be
1 Woji v Santam Insurance Co Ltd [1980] ZASCA 134 ; 1981 (1) SA 1020 (A) at 1028B -D
2 Ibid.
7
clear and satisfactory in every material respect .3 This does not mean that such
evidence must be flawless and beyond criticism. In S v Saul (Saul),4 it was held
that:
‘There is no rule of thumb test or formula to apply when it comes to a consideration of the
single witness . . . The trial Judge will wei gh the evidence, will consider its merits and
demerits and, having done so, will decide whether it is trustworthy and whether, despite the
fact that there are shortcomings or defects or contradictions in the test imony, he is satisfied
that the truth has be en told. The cautionary rule referred to by De Villiers JP in 1932 may be
a guide to a right decision but it does not mean “that the appeal must succeed if any criticism,
however slender, of the witnesses’ evidence were well founded ” . . . It has been said more
than once that the exercise of caution must not be allowed to displace the exercise of common
sense.’
Section 60 of the Act prevents the use of caution in evaluating the evidence of a
complainant because the offence is sexual in nature. However, in r espect of a
child, the court should not convict unless the evidence is treated with caution
especially if the child is a single witness.
[14] With regard to the complainant’s age, this Court held as follows in ICM v
The State :5
‘[The] court considering the evidence of a child , must be satisfied that the child is credible
and reliable witness. The credibility ability relates to honesty and reliability to the child’s
cognitive ability or brain development. The child’s cognitive ability i s assessed having regard
to factors such as the ability to encode, retain, retrieve and recount information or an event.
The “intimidating and bewildering atmosphere ” under which the child testified and be
evaluated in light of the totality of the evidence .’
[15] There was no psychological evidence adduced relating to the
complainant’s brain development and the difficulty for such a young child to
stare and retrieve traumatic events in sequence. However, the complainant gave
3 R v Mokoena 1956 (3) SA 81 (A) at 85 quoting Rex v Mokoena 1932 OPD 79 at 80.
4 S v Saul 1981 (3) SA 172 (A) at 180E -G.
5 ICM v The State [2022] ZASCA 108 para 23.
8
her evidence in a coherent mann er. Although she could not recount the actual
date of the incident, she provided a detailed account of the events. The State
prosecutor’s guidance kept the complainant’s testimony focused and to the
point. Even during her cross -examination, which was adjou rned for almost five
month s, (cross -examination of the complainant was adjourned from 21 May
2014 until 23 October 2014) her version remained consistent.
[16] The complainant’s testimony was not beyond criticism. She testified that
she was standing with her back against the wall when the appellant raped her.
However, her mother testified that the complainant informed her that the
appellant penetrated her from behind. In, my view, this contradictio n is not
material. Rather, as the full bench stated, it is indicative that the complainant
and her mother did not collude with each other in provid ing their testimony in
court.
[17] As regards the position the complaina nt was when she was raped, she
testified that:
‘At the toilet he undressed me of all my clothes. He then put his thing and put it on me. The
thing was his penis and he placed it in my vagina. When he inserte d his penis into my vagina
I was standing with my back to the wall, and I was facin g Makhaya. As he inserted his penis
into my vagina he was making certain movements. At that stage, I felt pain in my vagina. He
didn’t use a condom. He was also totally naked .’
Under cross examination she stated :
‘Makhaya is much taller than you are, how can he rape you if he is also standing ? --- He
would lift me up and pressed me against the wall.
Why didn ’t you tell Mrs Reddy that he had lifted you up? --- Yes because she didn ’t ask me
that.’
[18] In this regard the tr ial court stated:
9
‘The court takes into account that the first State witness didn ’t testify in chief that the
accused, while raping her, threatened her, o r that he had picked her up and p ressed her
against the wall when he inserted his penis into her vagina.
The first witness explained h er failure to do so was because the prosecutor in chief did not
ask her those questions. It is this court’s opinion that the court must take into account that th e
child was only 12 or 13 years old, that she would not know that she was supposed to explain
in detail what had happened on the said date when the incident took place. Therefore, it is th is
court ’s opinion that it is not improbable that she would not volu nteer evidence if she was not
asked by the prosecutor to do so’.
I fully agree with the trial court.
[19] In my view , this was not a contradiction, but she was merely answering
the questions put to her by the prosecutor . Due to her age , and ‘the intimidating
and bewildering atmosphere ’ under which she testified , she could not have
formed an opinion that she ha d to tell the prosecutor or the court the details of
how she was ra ped. She did not know that she had to be precise about the
position s he was in when she was raped . It may well be that , when she stated
that ‘I was standing ’, she meant that she was not lying down as many rapes
occur .
[20] Counsel for the appellant argues that it is improbable that the complainant
was raped in a toilet , at a tavern yet there were no eyewitness. However, there
was no evidence regarding the distance between the toilet and the tavern and the
position of the toilet. There is no evidence that there were patrons at the tavern
or not ; whether or not the toilet had cubicles which have doors , such that a
person or persons would not be visible in the cubicle. In my view, nothing turns
on this argument.
[21] As regards the delay in reporting the rape, counsel for the appellant did
not, correctly so in my vie w, pursue this argument. This is because the offence
10
of rape has no prescription period. Furthermore, s 59 of the Act is specific that
no inference can be drawn from the delay between the commission and the
reporting of the rape. Therefore, the delay in reporting the rape could not be
decisive in the adjudication of the veracity of the allegation of the complainant.
[22] Applying the principles in Woji and Saul to this case, I find that the
complainant’s evidence is reliable and trustworthy and, thus, satisfactory in all
material respect s. Despite her age, her evidence was consistent and clear. She
was able to respond to questions appropriately. During cross -examination , the
complainant broke down in tears and the cross -examination was adjourned for
almost five months. Despite this, she resumed her testimony and remained
adamant and consistent that the appellant was the one who raped her.
[23] The complainant’s evidence was supported by independent medical
evidence. The forensic nurse who examined her noted that her hymen was not
intact and had a cleft. According to the forensic nurse, her finding was
consistent with a history of previous penetr ation. The forensic nurse further
found that the complainant had a vaginal discharge , and the complainant would
scratch her private parts. It was put to the forensic nurse during cross -
examination that the injury on the hymen could have been caused by the
complainant scratching herself. This, the forensic nurse disputed . According to
her, the hymen is deep in the vagina, and it is also protected by the labia minora
and therefore, the complainant could not scratch herself far or deep enough to
reach the hyme n and cause it to be injured.
[24] Coming to the appellant’s version, it is trite that the proper approach to
evidence is to look at the evidence holistically to determine whether the guilt of
11
the accused has been proved beyond reasonable doubt. In Tshiki v S ,6 this Court
explained this approach as follows:
‘In a criminal trial, a court’s approach in assessing evidence is to weigh up all the elements
that point towards the guilt of the accused against all that which is indicative of their
innocence taking proper account of inherent strengths and weaknesses, probabilities and
improbabilities on both sides and having done so, to deci de whether the balance weighs so
heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt. . .’
[25] The appellant’s suggestion that the complainant was couched by her
mother to falsely implicate him in the allegation of rape is improbable. To do
so, the complainant and her mother would have had to conspire about what they
would tell the court. The detail and consistency in the evidence of the
complainant disproves this contention. Furthermore, it is highly improbable that
the complainant’s mother would protect the real perpetrator and subject he r
child to police investigation, medical examination and testifying in court ,
merely to execute her intention to falsely implicate the appellant for R50.
Having regard hereto, the trial court was correct to reject the appellant’s
version.
[26] Having stat ed the above, I find, undoubtedly so, that the trial court was
correct to accept the evidence of the complainant as satisfactory in all material
respects to justify a conviction . And, thus, the appellant was properly convicted
on the evidence of a single w itness. As a result, and taking the evidence in its
totality, I am satisfied that the guilt of the appellant has been proved beyond
reasonable doubt.
Sentence
6 Tshiki v S [2020] ZASCA 92 para 23.
12
[27] It is trite that sentencing is pre -eminently a matter of discretion of the trial
court. An appeal court cannot, in the absence of a misdirection by the trial court
interfere with this discretion merely because it would have imposed a different
sentence. To do so would be to usurp the sentencing discretion of the trial court.
[28] The starting point regarding sentence in these circumstances is in the
Criminal Law Amendment Act 105 of 1997 (the CLAA) . Section 51 prescribes
a minimum sentence of life imprisonment on an accused who has been found
guilty o f an offence which falls under Part 1 of Schedule 2 . A court may deviate
from imposing such a sentence only when it finds that there exist s substantial
and compelling circumstances justifying the imposition of a lesser sentence.
Rape of a minor child falls within the offences under Part 1 o f Schedule 2.
[29] When considering the sentence imposed by the trial court, it appeared that
the trial court failed to warn the appellant of the applicability and the
consequence of the CLAA. Counsel were requested to file supplementary heads
of argument relating to, amongst others, this issue . Counsel complie d with this
request , for which we are grateful.
[30] In his supplementary heads of argument, c ounsel for the appellant
concede d to the submi ssion that the provisions of the minimum sentence were
mentioned in the charge sheet. He however argue d that the appellant’s right to a
fair trial was infringed in that he was not warned of the applicability of the
minimum sentence at the time when he tendered his p lea. This, a ccording to
counsel, resulted in a serious misdirection that vitiated the proceedings and
rendered the trial unfair in respect of sentence.
[31] Counsel for the respondent , on the other hand , submit ted that the record
of this appeal was recons tructed from the magistrate’s notes. The reconstructed
13
record was accepted by both the appellant and the respondent. She concede d
that there was no indication , on the reconstructed record , that the appellant was
warned of the applicability of the minimum s entence at a stage when he
tendered his plea. She however submit ted that this did not infringe the
appellant’s right to a fair trial as the provisions of the minimum sentence was
explained to him on his first appearance date in court.
[32] The rule that the accused person should be informed of the minimum
sentence that is applicable in the case, owes its genesis to S v Legoa ,7 where this
Court held that it was desirable that the facts which the State intended to prove
the sentencing jurisdi ction , under the CLAA , should be clearly set out in the
charge sheet. The Court concluded by stating that the matter is one of substance
and not form, and a general rule could not be laid down that the charge sheet in
every case had to recite either the sp ecific form of the scheduled offence with
which the accused was charged, or the facts the state intended to prove to
establish it.8
[33] In Khoza & Another v S,9 this Court stated:
‘As a general rule, fair -trial rights require that an accused person should be informed at the
outset of the trial of the provisions of the Minimum Sentence Act . . . that the state intends to
rely upon or which are applicable. The accused person should generally be so informed in the
indictment or charge she et; by notification by the presiding officer or in any other manner
that effectively conveys the applicable provisions to the accused before or at the
commencement of the trial.’
[34] The charge sheet in this matter state s that ‘. . . the accused is guilt y of the
crime of contravening the provisions of Section 3 read with Sections 1, 56(1),
7 S v Legoa [2002] ZASCA 122 ; [2002] 4 All SA 373 (SCA); 2003 (1) SACR 13 (SCA) para 21.
8 Ibid.
9 Khoza and Another v S [2018] ZASCA 133 ; 2019 (1) SACR 251 (SCA) para 10.
14
57, 58, 59, 60 and 61 of Act 32 of 2007. Also read with Sections 256 and 261 of
the Criminal Procedure Act 51 of 1977 – RAPE (read with the provisions of
Sections 51 and Schedule 2 of the Criminal Law Amendment Act 105 of 1997,
as amended). It further states that ‘the said accused did unlawfully and
intentionally commit an act of sexual penetration with the complainant . . . (A
MINOR FEMALE by INSERTING HIS PENIS IN HER VAGINA . . .’ The
record of proceedings states that, on the appellant’s first appearance in court , the
‘minimum sentence legislation’ was explained to him.
[35] It is indeed desirable that the charge sheet refers to the relevant provisions
of the CLAA . Further desirable that this should also be explained to the accused
at the time when he tenders his plea. This would enable the accused to
appreciate and understand the nature and seriousness of the charge he is facing.
It is not sufficient to state that this was explained to the appellant, the record of
the proceedings has to show that he was indeed so warned. The reconstructed
record does not state that the appellant was warned of the penal provisions of
the minimum sentence. In my view , this is a serio us misdirection which
warrants this Court to interfer e and consider the sentence afresh.
[36] Rape is a serious, cruel and heinous offence. It is degrading, humiliating
and a brutal invasion of a person’s most intimate privacy. What I find more
aggravating is the fact that the appellant took advantage of the age and
vulnerability of the complainant . He abused the trust the complainant had in
him as her mother’s friend. His conduct , in my view , was sufficiently
reprehensible to fall within the category of offences calling for a sentence both
reflecting the court’s disapproval and hopefully acting as a deterrent to other
like-minded people who satisfy their canal desires with helpless children.
15
[37] I turn to personal circumstances of the appellant. There is nothing
exceptional about the appellant’s personal circumstance s. He is a first offender,
37 years old (in 2015) , single with two children. The appellant was self -
employed and enjoyed good healthy life. As Nugent JA stated in S v Vilakazi
(Vilakazi ),10 ‘[i]n cases of serious crime the personal circumstances of the
offender, by themselves , will necessarily recede into the background’. I agree.
In my view, the personal circumstances of the appellant pale into insignificance
when weighed against the seriousness of this offence.
In the result, the following order is granted:
1 The app eal against both conviction is dismissed.
2 The appeal against sentence is upheld.
3 The order of the full bench in respect of sentence is set aside and replaced
with the following:
‘(a) The appeal against sentence is upheld.
(b) The sentence imposed by the trial court is set aside and replaced with the
following:
“The accused is sentenced to 10 years’ imprisonment ”.’
4 The sentence in paragraph 3 (b) is antedated to 12 February 2015 in terms of
s 282 of the Criminal Procedure Act 51 of 1977.
____________________
F E MOKGOHLOA
JUDGE OF APPEAL
10 S v Vilakazi [2008] ZASCA 87; [2008] 4 All SA 396 (SCA); 2009 (1) SACR 552 (SCA); 2012 (6) SA 353
(SCA) para 58 (Vilakazi ).
16
Makgoka JA ( dissenting):
[38] I have read the judgment prepared by my Sister, Mokgohloa JA (the first
judgment). Regrettably , I disagree with the conclusion it reaches and the
reasoning underpinning it. In my view, the appeal against the conviction must
be upheld. Below , I set out my reasons for that conclusion. The first judgment
has summarised the basic facts. However, to give context to this judgment, I set
out the facts as follows.
[39] The complainant testified through an intermediary in terms of s 170A of
the Criminal Law Amendment Act.11 In chief, she testified that during the time
of the incident, she was living with her grandmother in a flat. Her mother did
not live with them but occupied a backroom shack in proximity of the flat. The
complainant had known the appellant for about 8 years as a person who often
visited her mother.
[40] On ‘on a certain day’, she was playing with three of her friends, whom
she identified by name. The appellant ‘pulled’ her away and took her to a toilet
situated at a tavern. Once inside the toilet, he undressed her completely naked,
and he also took off all his clothes. Thus, both were completely naked. He then
took out his penis and inserted it into her vagina and made certain movements.
They were both in a standing position facing each other. In her own words,
‘[w]hen he inserted his penis into my vagina I was standing with my back to the
wall and I was facing [the appellant]’. The complainant testified that the
appellant ‘didn’t use a condom’. After he had finished, he told her to go home.
She went home and did not tell anyone because she was afraid ‘ they will give
me a hiding ’. (Empha sis added.)
11 Section 170A(1) of the Criminal Law Amendment Act 135 of 1991 (as amended), provides:
‘(1) Whenever criminal proceedings are pending before any court and it appears to such court that it would
expose any witness under the age of eighteen years to undue mental stress or suffering if he testifies at such
proceedings, the court may, subject to subsection (4), appoint a competent person as an interme diary in order to
enable such witness to give his evidence through that intermediary.’
17
[41] Under cross -examination, the complainant testified that the distance
between where the appellant pulled her from and the tavern, was about 50
meters. When the appellant dragged her, she resisted, and was crying softly. She
did not scream as she was afraid because she ‘didn’t know what he was going to
do’. When it was put to her that, that was more the reason to scream, she
testified that the appellant had placed his hand over her mouth. Despite this, she
was still able to scream. She was a sked whether she had mentioned to the police
that the appellant had closed her mouth with his hand, which she confirmed. It
was then pointed out that this was not in her witness statement. She persisted in
her answer that she did inform the police.
[42] The evidence of the complainant’s mother mirrored that of the
complainant about the first report. However, she parted ways with the
complainant about what the latter told her about the alleged rape. She testified
that the complainant told her that the appe llant had made her face the wall and
penetrated her from the back. The forensic nurse who examined the complainant
completed the State’s case and testified about the clinical findings upon such
examination. I will revert to her evidence later.
[43] In hi s defence, the appellant denied the charges against him and
speculated that the complainant was influenced by her mother who had
begrudged him because he had previously refused to give her money. The
regional court was satisfied with the State’s case, and accordingly, convicted the
appellant and subsequently sentenced him to imprisonment for life. On appeal,
the high court dismissed the appellant’s appeal on the basis that the factual
findings of the trial could not be faulted.
18
[44] In my view, the appeal should succeed because both the trial court and
the high court failed to consider adequately , or at all, issues which were crucial
in the determination as to whether the State had prove d its case against the
appellant beyond a reasonable doubt. The issues , which I consider in turn, are:
(a) evidence arising only in cross -examination;
(b) material contradictions in the evidence;
(c) the evidence of the forensic nurse;
(d) failure to call other witnesses and impact on corroboration;
(e) probabilities; and
(f) the cautionary approach to the evidence of a single and child witness.
The evidence which emerged during cross -examination
[45] In her evidence -in-chief, the complainant testified that when the alleged
rape took place, she and the appellant were stand ing face -to-face. In cross -
examination, it was pointed out to her that it was impossible for penetration to
occur in that position, given the appellant’s height and her small stature. Only
then, a very different version emerged. The complainant testified t hat the
appellant had lifted her up and pressed her against the wall. When confronted
with why she only mentioned this discrepancy in cross -examination, the
complainant said that she was not asked about it by the prosecutor, and that she
did not know that she was expected to give a detailed explanation.
[46] The trial court accepted the complainant’s explanation. In addition, the
court reasoned that because of her age, the complainant would not know that
she was supposed to explain in detail what had happ ened to her. On that basis,
the court concluded that ‘it [was] not improbable that she would not volunteer
evidence if she was not asked by the prosecutor to do so’. The first judgment
agrees with the trial court, and adds that ‘this was not a contradictio n, but she
was merely answering the questions put to her by the prosecutor’.
19
[47] I disagree. A careful analysis of her evidence -in-chief shows that the
prosecutor asked her only two questions, one in chief and another in re -
examination. In her evidence -in-chief, she asked the complainant whether she
knew why she was in court. The complainant then narrated her evidence
without any interruption whatsoever, during which she volunteered detailed
information. No one asked her about how: (a) she was pulled away from where
she was playing ; (b) she was forced into the tavern toilet ; (c) she was undressed
by the appellant . Similarly, she testified without prompting that (a) both she and
the appellant were completely naked; (b) she was standing a gainst the wall
facing the appellant; and t he appellant did not use a condom.
[48] Viewed in this light, the court’s acceptance of her explanation that she
did not mention those issues because she was not asked about them, does not
bear scrutiny. She did provide detailed information without being asked. The
first judgment concludes that the complainant ‘could not have formed an
opinion that she has to tell the prosecutor or the court the details of how she was
raped. She did not know that she had to be precise about the position she was in
when she was raped. . .’ . The question is: how did she know she had to provide
the details she provided in the first place, eg the position she was penetrated in;
the fact that they were both naked; the fact that he did not use a condom? The
trial court and the high court overlooked these issues, and so , with respect, does
the first judgment .
[49] What is more, the first judgment concludes that the discrepancy might
have been due to ‘. . . “the intimidating and bewildering atmosphere”’ under
which the complainant testified’. The complainant testified through an
intermediary. There is no evidence on record that she found the environment
20
‘intimidating and bewildering’. That assertion would more readily apply to a
child who testifies in an open court , and not through an intermediary.
[50] This Court has drawn a negative inference from the fact that some of the
points in a complainant’s evidence arose only in cross -examination. In S v Smit
(Smit),12 it was held that had the events occurred as the complainant alleged in
cross -examination, it was surprising that she only volunteered this information
at that stage. Her failure to testify about them in her evidence -in chief , said the
Court, ‘smacks heavily of an attempt t o gild the lily’.13 In S v Gentle ,14 as is the
case here, there was an attempt to explain such discrepancy. This Court had this
to say about it:
‘[T]he complainant did not give more detail in cross -examination, nor did she clarify what
she had said in her evidence in chief. She gave contradictory versions. These contradictions
in the complainant ’s evidence were simply ignored by the magistrate.’15
[51] This is an apt observation in relation to the present case because the
complainant’s version that she had been picked up during the alleged rape, as
opposed being in a standing position face -to-face with the appellant, was not an
explanation of the latter, but a deviation from it. The trial court’s failure to give
due weight to the contradiction amounts t o a material misdirection.
[52] Equally not borne by the evidence, is the reasoning by the trial court that
because of her age, the complainant could not have known that she would be
expected to give a detailed explanation. This is especially so of her un solicited
evidence that the appellant ‘didn’t use a condom’ during the alleged rape. The
complainant would have been about 7 or 8 years old then, and 11 years old
when she testified. Ordinarily, the use of condoms would be beyond the
12 S v Smit [2010] ZASCA 84; 2010 (2) SACR 467 (SCA) (Smit).
13 Ibid para 15.
14 S v Gentle [2005] ZASCA 26; 2005 (1) SACR 420 (SCA).
15 Ibid para 16.
21
comprehension and gras p of a child of that age. This explains why, in many
cases of child rape, a child witness would be carefully led and guided by the
prosecutor with age -appropriate questions. But not this child witness. Thus, in
the light of this unsolicited evidence , the r easoning by the trial court loses its
force.
[53] The first judgment also posits that the discrepancy in the position the
complainant was in when she was penetrated, ‘may well be that when she stated
that “I was standing” she meant that she was not lying down as many rapes
occur’. We do not know . We would not be in an invidious position to resort to
speculation had this been clarified with the complainant . This is typical of the
many issues left hanging in the air in the evidence of the complainant . Had the
prosecutor done her job by seeking clarity from t he child on this issue in re -
examination, this speculation would not arise.
Contradictions
[54] The complainant’s evidence was contradicted by her mother’s. It also
suffered internal contradictions. I set out those instances below, and how they
were treat ed by the trial court. The complainant’s evidence contradicted that of
her mother as regards how the appellant allegedly penetrated her. According to
her, she was penetrated from the front, irrespective of whether in standing
position (as she testified in chief) or in a lifted position (as testified in cross -
examination). However, the complainant’s mother testified that the complainant
had told her that the appellant had made her face the wall and penetrated her
from behind . This is how the trial court deal t with this material contradiction:
‘[The complainant] testified that when she was raped her back was facing the wall, and
according to what she told her mother, the accused penetrated her from behind. In the light
that the third state witness confirmed th at there was penetration, it is this court’s opinion that
the contradiction is not sufficient to reject her evidence as false.’
22
[55] With respect to the learned regional magistrate, this is circular reasoning.
It begs the question: how was the complainan t penetrated? Was it from the front
or from behind ? By glossing over an i ssue which it had identified as a
contradiction, the trial court committed a material misdirection. The first
judgment, with respect, commits a similar error, by holding that ‘t his
contradiction is not material’. In my view it is material. The first judgment also
holds that this contradiction is indicative that the complainant and her mother
did not collude with each other in providing their testimony in court. With
respect, this does not resolve the material difference in their evidence.
[56] A court faced with a contradiction between the evidence of two witnesses
must resolve it by critically examining the differences, with a view to
establishing whether the complainant ’s evidence w as reliable.16 If the court
prefers one version, it must explain why that version is preferable to the other,
and what impact the contradiction has on the overall evidence. Simply put, the
two versions cannot live side by side.
[57] In addition, the complainant’s evid ence suffered two internal material
contradictions. First, she testified in -chief that when she was dragged to the
tavern toilet, she was crying softly. She did not scream because she was afraid
as she did not know what the appellant was going to do. In cr oss-examination, it
was put to her that, that was more the reason for her to scream. She changed
tune and proffered a new reason: she, in fact, screamed, but the appellant had
closed her mouth by putting his hand over it, to mute her screams. In my view,
this amounted to the tailoring of her evidence by the complainant under cross -
examination.
16 Ibid para 18.
23
[58] Second, the complainant testified she went home after the alleged rape.
Her grandmother asked her where she was. She told her that she had been out
playing. Sh e was afraid to tell her grandmother about her ordeal as the appellant
had ‘threatened her not to tell anybody’. This contradicted the reason she
proffered in -chief. There, she gave as a reason for not informing her
grandmother and her mother about the all eged rape, the fact that she feared
getting a hiding. This part of the complainant’s evidence is troubling. I t escapes
me why she would be given a hiding for having been raped. That is, unless in
her mind, the real reason for where she had been that evenin g would call for a
hiding. This is one of the issues which were never investigated during the trial .
It was simply left hanging.
The evidence of the forensic nurse
[59] The trial court placed much store on the evidence of the forensic nurse as
corroborati on of the complainant’s evidence about being penetrated. As I
demonstrate below, such evidence is far from satisfactory. The forensic nurse
testified that all was normal upon the examination of the child, except for two
things: there was a cleft in the chi ld’s hymen, and a vaginal discharge. The cleft
was an old injury which was consistent with previous vaginal penetration by a
blunt object like a penis or finger. She could not indicate how old the injury
was.
[60] In cross -examination , it turned out that the nurse did not ask the
complainant whether she had been aware of the discharge before the
examination, and if so, when the discharge started. The witness fairly conceded
that she ‘made a mistake’ in failing to ask this of the child. When pressed why
she did not do so, her answer elicited something she had not stated in her
evidence -in-chief. This is what the record reflects:
24
‘[Legal representative]: [D]id you also ask her whether she was aware of this discharge
before the day you examined her?
[Witness]: I didn’t record [it] here, because she said she was scrat ching, scratching,
scratching on the private parts. I didn’t document it here.’
[61] Further , in cross -examination a proposition was put to her that since a
finger was one of the blunt objects she had identified as having penetrated the
child, it could we ll be the child’s own finger which had caused the cleft. This
was relevant in the light of her evidence that the child told her that she had been
scratching her private parts. She answered that the hymen was too far to be
reached by a finger. It was pointe d to her that this was a material deviation from
her earlier testimony in which she testified that a finger could be a possible
cause of the cleft.
[62] The record is not clear in this regard, but it seems that the witness
suggested that only the finger of ‘the suspect’ could have caused the cleft, and
not of the complainant. When pressed to explain this, she immediately withdrew
her absurd proposition. Having correctly done so, one would have expected that
it would follow that the complainant’s own fing er could not be ruled out as a
possible cause of the cleft in the hymen. But that was not to be. When that
proposition was put to her, the nurse obstinately refused to concede the point.
[63] Apart from these difficulties, some of the nurse’s answers wer e plainly
nonsensical. For example, when asked by the court what could have caused the
discharge, she answered:
‘There [are] a lots of things, My Worship, that can cause the discharge in the child.
According to my examination, I find the cleft to the child , and the child didn’t tell the mother
what happened, that can also cause the discharge to the child.’ (Emphasis added.)
25
[64] How a failure to inform the mother about the alleged rape could be the
cause of the discharge is difficult to fathom. Again, no o ne asked her to clarify
this glaringly ludicrous statement. Overall, one gets an impression that the nurse
was bent on ensuring a conviction against whomever the child accused of rape,
instead of assisting the court as an independent forensic witness. This is
demonstrated in her illogical reasoning that while a finger could be a possible
cause of the clef on the hymen, this excluded the complainant’s own finger but
included a suspect’s finger.
[65] There are rarely cases with similar facts. Maemu v S (Maem u),17 comes
eerily close to the present case. There, the appellant had been convicted of rape
of a child. The latter had alleged that she was walking home, after playing with
the other children, when the appellant grabbed her and dragged her into the
house where he raped her. The medical examination, made after two months
after the alleged rape, indicated that there was a small cleft on the upper edge of
the vaginal wall and that there was possible penetration with an object. This
Court held that the p resence of a cleft did not corroborate the child’s version,
observing as follows : ‘If anything the medical report shows inadequate proof of
penetration at best the evidence of penetration is neutral. The doctor who testified was
unable, to say whether the cleft was old or fresh, natural or inflicted. The child was taken to a
doctor for examination about two months after the event. Her mother did not examine her
private parts after she arrived home.’18
[66] The situation in the present case is worse as the medical examination on
the child was done after three or four years after the alleged event. In my view,
this case is not d istinguishable from Maemu , and we are bound by the latter
case. As pointed out in Patmar Explorations (Pty) Ltd and Others v Limpopo
17 Maemu v S [2011] ZASCA 175.
18 Ibid para 13.
26
Development Tribunal and Others ,19 this Court does not depart from its own
previous judgments unless it is satisfied that the y are clearly wrong. There is no
suggestion that Maemu is clearly wrong. We are thus bo und by it.
Failure to call other witnesses and lack of corroboration
[67] There were four potential witnesses whom the State could have called,
namely the three friends she was playing with when she was allegedly dragged
to the tavern toilet, and the complainant’s grandmother. Her friends could have
been called to testify, not n ecessarily that they had seen her being dragged, but
that she suddenly disappeared while they were playing with her on the day of
the alleged rape. This would have corroborated her evidence about being
dragged away, and in a crucial manner, added weight to her evidence that she
was taken into a tavern toilet where she was raped.
[68] The complainant’s grandmother was the first person to encounter the
complainant shortly when she arrived home after the alleged rape. She would
have given her own impression about the complainant’s emotional state when
she arrived home. Evidence of the victim’s distressed condition can, in
appropriate cases, serve as corroboration. See, for example, S v S20 and S v
Hammond.21 In the latter case, this Court cons idered the distressed
condition of the complainant as capable of amounting to corroboration where
this was required, and such evidence was also admissible to show that sexual
contact had taken place where this was denied.22
[69] Therefore, by failing to c all the grandmother as a witness to testify about
the complainant’s emotional state when she arrived home, the State denied itself
19 Patmar Explorations (Pty) Ltd and Others v Limpopo Development Tribunal and Others [2018] ZASCA 19;
2018 (4) SA 107 (SCA) para 3.
20 S v S 1990 (1) SACR 5 (A) at 11 A–C.
21 S v Hammond [2004] ZASCA 71; [2004] 4 All SA 5 (SCA); 2004 (2) SACR 303 (SCA).
22 Ibid paras 21 and 22.
27
a crucial building block in its case against the appellant. Tellingly, and in any
event, the complainant did not say in her t estimony that she was in a distressed
condition when she arrived home. There is also nothing in her testimony that
her grandmother noticed that there was something amiss about her emotional
state. On the contrary, it appears that she had a normal conversat ion with her
grandmother, who merely asked her where she had been.
[70] For these reasons, one cannot exclude the possibility that the prosecutor
had considered that the grandmother would not have testified that the
complainant was in a distressed conditi on when she arrived home. Hence, she
was not called. In Smit,23 this Court considered , among other things, the fact
that the complainant showed no signs of distress at school the next day.
[71] There was a more compelling reason to call the complainant’s
grandmother. The complainant testified that later the night of the alleged rape,
she was bleeding. She told her grandmo ther about it, who kept quiet and did
nothing about it. This was crucial because, had the grandmother testified and
confirmed the complainant’s evidence that she was bleeding, it would have
added potent credence to her testimony about the ordeal she had al legedly gone
through earlier that evening. It must be borne in mind that , where there is a
measure of corroboration, even if it is small, one is no longer dealing with a
single witness on the issue.24
[72] The prosecutor placed nothing on record as to whether the grandmother
was available, and the reason why she was not called. Such conduct was
deprecated in S v Kubeka .25 The court remarked that it was an ‘unsatisfactory
state of affairs for matters simply to be left in the air without any material being
23 Smit para 22.
24 S v Letsedi 1963 (2) SA 471 (A) at 473F.
25 S v Kubeka 1982 (1) SA 534 (W).
28
placed before the [c]ourt, whether by way of testimony from the investigating
officer or otherwise, indicating whether a ny efforts were made by the police to
find these witnesses’.26 In S v Teixeira ,27 it was held that where the State’s case
rested on the evidence of a single witness, the failure of the State to call other
witnesses – who had been identified and were availa ble, justified the inference
that in State counsel’s opinion their evidence could have given rise to
contradictions adversely affecting the credibility of the single witness. This
must be the case here.
Probabilities
[73] In evaluating the evidence of a single witness, a final evaluation can
hardly be made without considering whether such evidence is consistent with
the probabilities. In the present case, I identify the five improbabilities in the
evidence of the complainant. First, that she was dragged for about 50 meters,
crying, with her mouth closed, without a member of the public noticing such a
suspicious and strange conduct. Second, I find it highly improbable that the
complainant’s grandmother kept quiet and did nothing when she infor med her
that she was bleeding the night of the alleged rape.
[74] Third, like Leach JA in Smit,28 I find the complainant’s description of the
sex act itself unconvincing and improbable. In the first version, she mentioned
that she was standing face-to-face with the appellant during the alleged rape.
This is almost impossible , as the complainant conceded in cross -examination ,
and suggested a new version, which is similarly improbable. It is difficult to
comprehend how the appellant would lift her up, press her against the wall,
manage the penetration, and rape her, especially for as long as the complainant
testified the alleged rape lasted. According to the appellant, the rape took ‘a
26 Ibid at 538F-G.
27 S v Teixeira 1980 (3) SA 755 (A) at 763D -764B.
28 Smit para 20.
29
long time, because when he took me [it was] during the day and when I lef t it
was night’.
[75] Fourth, i t is highly improbable that a rape could take place in a toilet of a
tavern for as long as the complainant testified it took, without someone noticing
the extra -ordinary length the toilet would have been occupied. Ordinarily , one
would expect a toilet of a tavern to be a busy place. With patrons drinking, they
would need to frequent it. The first judgment says that nothing turns on this
argument. It holds so because there was neither evidence regarding the distance
between th e toilet and the tavern and the position of the toilet, nor that there
were patrons at the tavern or not. That is correct. But that is a weakness in the
State’s case, rather than a difficulty for the appellant. The answers to the
questions raised in the fi rst judgment could simply have been elicited from the
one and only witness who was able to provide them, namely, the complainant.
Yet the prosecutor failed to do so. The result is these lingering questions. In a
criminal trial, any doubt in the evidence must redound to an accused.
[76] Fifth, the complainant is young and was allegedly a virgin when the
alleged rape occurred. She had just been raped for ‘a long time’, in a tavern
toilet. It must be assumed that she would have been extremely traumatised, and
in a distressed emotional state. She went straight home after the alleged rape,
and therefore while trauma was still raw. But it appears that when she arrived
home, she had a normal conversation with her grandmother, who merely asked
her w here she had been. Her evidence did not suggest that she was traumatised.
If she was not in a distressed emotional state upon her arrival home, it would be
highly improbable that she had, shortly prior to her arrival home, been raped.
Unfortunately, the pr osecutor failed to lead her on this normally crucial
question.
30
The cautionary rule
[77] The complainant was both a child witness, and a single witness. As a
single witness, the complainant’s evidence had to either be: (a) substantially
satisfactory in eve ry material respect,29 or (b) corroborated.30 Her evidence had
to be approached with caution. In its judgment, the trial court did not refer , at
all, to the cautionary rule and related authorities. Of course, the fact that
something was not mentioned in a judgment does not mean it was not
considered.31 But here, even a textual analysis of the judgment does not suggest
otherwise. Instead, the tr ial court slavishly accepted the evidence of the State
witnesses as satisfactory without any critical analysis. As I have demonstrated,
the complainant’s evidence was riddled with inconsistencies, improbabilities
and material contradictions. This calls to mind what this Court said in S v
Heslop :32
‘It is cause for concern to find laudatory epithets applied by a trial court to witnesses when
the record shows that their performance, judged by the written word, was obviously far from
satisfactory. In such a case an appeal [c]ourt will more readily interfere with the findings of
the trial court as to the weight to be attached to the witnesses’ evidence and its ultimate
conclusion based on such findings.’
[78] The high court did not fare any better. It miscons trued the application of
the cautionary rule. This is what it said:
‘Evidently the learned magistrate adopted a cautionary rule approach to the child’s witness’
single evidence (sic) with regard to her identification of the appellant as the perpetrator who
raped her. She observed that the complainant’s recognizing of the appellant as well as the
perpetrator was with clear certainty and without hesitation. The appellant was well known to
her for 8 years. The incident happened during the day and rape being an offence that involves
29 R v Mokoena 1932 OPD 79 at 80.
30 S v Gentle [2005] ZASCA 26; 2005 (1) SACR 420 (SCA) para 18. See further R v Mokoena 1956 (3) SA 81
(A) at 8 6; R v T 1958 (2) SA 676 (A) at 676; S v Sauls and Others 1981 (3) SA 172 (A) at 180E –H; and S v
Banana 2000 (2) SACR 12 (ZS); 2000 (3) SA 885 (ZS) at 892H -893A.
31 Mahlangu and Another v S [2011] ZASCA 64; 2011 (2) SACR 164 (SCA) paras 23 -24.
32 S v Heslop [2006] ZASCA 127; [2007] 4 All SA 955 (SCA); 2007 (4) SA 38 (SCA); 2007 (1) SACR 461
(SCA) para 13 .
31
contact and intimacy it could never have imposed any difficulty for the complainant to
recognise the perpetrator.’
[79] This is emblematic of the many defects in the high court’s judgment.
Identification was never an issue in the ca se. At the heart of the case was
whether it was the appellant who allegedly raped the complainant on the day. It
was that part of the complainant’s evidence which had to be approached with
caution, and not the complainant’s identification of the appellant.
Conclusion
[80] In view of these difficulties, I conclude that the appellant’s evidence ,
being that of a single witness, was not satisfactory in all material respects. I t
follows that the State had failed to discharge the onus resting upon it.
[81] As I conclude, it remains to observe how the tria l was handled. This
Court cautioned in Vilakazi :33
‘The prosecution of rape presents peculiar difficulties that always call for the greatest care to
be taken, and even more so where the complainant is young. From prosecutors it calls for
thoughtful preparation, patient and sensitive presentation of all the available evidence, and
meticulous attention to detail. From judicial officers w ho try such cases it calls for accurate
understanding and careful analysis of all evidence. For it is in the nature of such cases that the
available evidence is often scant and many prosecutions fail for that reason alone.’
[82] This caution was not heede d in the present matter. The prosecutor did not
demonstrate the necessary conscientiousness and forensic skill in presenting the
State’s case. She failed to properly lead the child complainant by canvassing
relevant and crucial issues. Most of them were le ft in the air or were canvased
on behalf of the appellant in cross -examination. I have demonstrated several
difficulties which arose in the cross -examination of the complainant, which
33 Vilakazi para 21; see also S v Stevens [2004] ZASCA 70; [2005] 1 All SA 1 (SCA) para 1.
32
called for clarification in re -examination. Surprisingly, the prosecutor did not
deem it necessary to do so. She asked only one tangential and peripheral
question in re -examination about where the complainant’s mother lived. But the
ultimate duty to see to it that justice is done, rests with the presiding officer. The
regional magistrate in the present case failed in this duty. She allowed issues to
hang without clarification. I have pointed out those instances in this judgment.
[83] Rape is a stubborn scourge in our country. It is an affront to the values we
hold as a nation. Its victims and survivors are, in the main, the vulnerable
members of our society – women and children. The natural inclination is
therefore one of sympathy for those who claim to have been sexually violated.
However, this does not lessen the onus resting on the State to prove the guilt of
those accused beyond reasonable doubt. This is especially in the light of the
heavy sentences prescribed in the Criminal Law Amendment Act 34 upon
conviction. The duty remains with trial courts to ensure, by proper evalu ation of
the evidence, and the application of proper forensic skills, that the onus which
rests on the State, is met before conviction. A wrong conviction, especially one
which results in a sentence as heavy as one of imprisonment for life, is the
highest form of injustice.
[84] Had I commanded the majority, I would have upheld the appeal against
the conviction, and set aside the sentence of life imprisonment.
__________________
34 Section 51(1) of the Criminal Law Amendment Act 105 of 1997 provides for the imposition of a minimum
sentence of life imprisonment for a conviction of rape of a person under the age of 16 years.
33
T MAKGOKA
JUDGE OF APPEAL
34
Appearances :
For the appellant: M P Malibu
Instructed by: Legal Aid, Johannesburg
Legal Aid, Bloemfontein
For the respondent: N Kowlas
Instructed by: Director of Public Prosecutions, Johannesburg
Director of Public Prosecutions, Bloemfontein .