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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG
Appeal No: AR468/2023
In the matter between:
X[…] P[…] M […] APPELLANT
and
THE STATE RESPONDENT
Coram : Chetty J and Mossop J
Heard: 16 May and 13 June 2025
Delivered: 20 June 2025
ORDER
On appeal from the Ulundi Regional Court (sitting as the court of first instance)
1. The appeal against conviction and sentence is dismissed.
JUDGMENT
MOSSOP J (CHETTY J concurring) :
2
Introduction [1] The appellant is presently serving a sentence of life imprisonment for the
multiple rapes of a young girl (the complainant) who was aged eight at the time that
she was violat ed. The appellant was described as the brother -in-law of the
complainant’s mother, he being involved in a relationship with the complainant’s mother’s sister.
[2] Following upon his conviction and sentence, t he appellant applied for leave to
appeal against both from the regional magistrate who heard his trial , but he failed to
persuade the court to grant him such leave. This court, on petition, granted him leave
to appeal against his conviction only. However, by virtue of the sentence imposed
upon him , the appellant is entitled to an automatic appeal against it in terms of s
309(1) (a) of the Criminal Procedure Act 51 of 1977.
1 I shall accordingly approach the
appeal on the basis that it is properly against both conviction and sentence.
The point in limine
[3] Counsel who prepared the original heads of argument for the appeal was not
the counsel who appeared to argue the appeal. Instead, Mr Chiliza appeared before
us. Having considered the record and the initial heads of argument, Mr Chiliza came
to the view that several important point s had been overlooked by his predecessor .
Mr Chiliza consequently delivered supplementary heads of argument intended to address the point s that he believed ought to have been advanced but had not been.
It is probably wise to deal with those point s now, before assessing the evidence led
at the trial .
1 Section 309(1) (a) reads as follows: ‘ Subject to section 84 of the Child Justice Act, 2008 (Act 75 of
2008), any person convicted of any offence by any lower court (including a person discharged after
conviction) may, subject to leave to appeal being granted in terms of section 309B or 309C, appeal
against such conviction and against any resultant sentence or order to the High Court having
jurisdiction: Provided that if that person was sentenced to imprisonment for life by a regional court
under section 51(1) of the Criminal Law Amendment Act, 1997 (Act 105 of 1997), he or she may note
such an appeal without having to apply for leave in terms of section 309B : Provided further that the
provisions of section 302(1)(b) shall apply in respect of a person who duly notes an appeal against a
conviction, sentence or order as contemplated in section 302(1)(a).’
3
[4] The first point taken focussed on the procedure adopted by the regional
magistrate for the reception of the evidence of the complainant, who at the time that
she testified was now nine years old. It was submitted by Mr Chiliza that the regional
magistrate had not conducted an inquiry to determine whether the complainant knew
and understood the nature and import of an oath. It was further submitted that the
regional magistrate failed to satisfy himself that the complainant could distinguish between truth and lies and therefore that she was not properly admonished to speak the truth and her evidence was, thus, inadmissible.
[5] To assess the validity of this criticism, it is only necessary to quote the
relevant portion of the record of what happened before the complainant commenced her evidence:
‘COURT : S[…], do you know what it means to take the oath? Have you
ever heard of that?
WITNESS: No, I do not ... [Indistinct - voice fades ], Your Worship.
COURT : How old are you? According to your parents, what do they say,
how old are you? WITNESS: Nine, Your Worship.
COURT : Now at school and at home, were you taught what the difference
is between telling lies and telling the truth?
WITNESS: Yes, Your Worship.
COURT : And what did your parents and what did the teacher say what
must one do? Must one tell lies or tell the truth? WITNESS: They say it is always better to speak the truth, Y our Worship,
because if you tell lies, you will get arrested.
COURT : Okay. Now everything you tell us here today, I want you to tell
us the truth only. O kay? We were not there. You must tell us what happened,
but only the truth. We do not want you to tell any lies. O kay?
WITNESS: Yes, Your Worship.’
[6] The complainant was then admonished to speak the truth and gave her
evidence.
4
[7] A further point taken by Mr Chiliza was that the State had failed to establish
that the complainant was eight years old at the time that she was violated. There is
no merit in this point. When she commenced her testimony, the complainant was asked her age and gave it as being nine years. She was not challenged on this
evidence. Later, her biological mother was called to testify and was asked the following question by counsel for the appellant:
‘EXAMINATION BY MR MSUNGU: As it pleases the Court, Your
Worship. Ma’am at the time when you were in Johannesburg …[indistinct] how old was S[…]?
MS ZULU: She was 8 years.’
[8] The complainant’s mother was not challenged on her evidence of her
daughter’s age.
[9] I can accordingly conceive of no basis for upholding Mr Chiliza’s argument on
either of the two points that he raised. There is no prescribed formula for assessing
whether a witness should be required to take the oath or should simply be
admonished to tell the truth. The regional magistrate did what was required of him
and there can be no suggestion that he erred in any way. The age of the
complainant was never in issue before the trial court and cannot be a n issue now on
appeal . The point s identified by Mr Chiliza must therefore be dismissed.
The evidence for the State [10] The evidence presented by the State was largely that of several children, of
which the complainant was but one. This is because w hen the rapes of which the
appellant was convicted occurred, the complainant was in the company of other young children. T he complainant’s young companions were the witnesses upon
whom the State relied on to attempt to complete the picture sketched in outline, and
partially painted, by the complainant .
[11] The complainant could not be precise about when the act s of rape occurred,
and the best that she could do was to state that they occurred sometime in 2010.
5
According to her, she was raped on five separate occasions in that year . The first
rape occurred during the daylight hours and the remaining four all happened at night.
All the rapes occurred at the homestead at which the appellant resided.
[12] As regards the first incident of rape, t he complainant testified that she and two
other children, called S […]i (S[…]i) and S […]a (S[…]a), had gone to the Mbatha
homestead, located in an area called Sishwili, an area near Ulundi, to pay a visit to a
young child called Z[ …]. The appellant is the biological father of Z […], and he
physically resides at the homestead that bears his surname. Upon their arrival at the
Mbatha homes tead, t he complainant and her youthful companions did not find Z[ …]
there, but the appellant was there. At some stage he sent S[…]i off to a local shop to
purchase a loose cigarette for him. The fact of that instruction to S […]i, and her
errand to the local shop, was confirmed by S […]i when she testified at the trial .
[13] After S […]i departed to go to the shop, the complainant testified that the
appellant instructed her to go inside the dwelling and to brush her hair. She dutifully
obeyed the instruction of her elder and went inside, followed by the appellant. O nce
inside, the appellant closed the door to the bedroom that she had entered and
instructed her to pull down her skirt and panties. She again obeyed. The appellant
then removed his trousers and instructed her to lie down on the bed in the room. She did so, and the appellant than placed his penis into her vagina. She cried but was
warned by the appellant not to mention what he had done because if she did so, he would kill her. When he was finished, t he appellant then gave the complainant R1
and told her to use it to purchase ice lollies for herself and S […]i at the shop.
[14] There was further corroboration of aspects of the complainant’s evidence from
the evi dence of S […]i. She confirmed that the complainant w as in the bedroom with
the appellant . She knew this to be the case because upon her return from the local
shop, she went to the bedroom and pushed open the door, which remained
unlocked. As she did so, she was admonished by the appellant from within the
bedroom not to proceed further into the room. She did not enter the room, but having
already pushed open the door, she testified that she was able to observe the
appellant on top of the complainant on the bed. She testified that the appellant was
6
not wearing his trousers, as the complainant had stated, and she was able to see his
penis .
[15] There was further corroboration of what happened in the bedroom from S […]a
when he testified. He had been outside throughout , playing with a ball. He testified
that S […]i was looking for the complainant, presumably after returning from the local
shop, and so he had gone to the window of the bedroom and peeped into the room.
Using the exact words that S […]a employed, he stated that he saw the appellant
‘jumping on top of Senoti .’
2 He testified that h e saw the complainant and the
appellant lying on the bed in the bedroom , as had S […]i.
[16] All the further counts of rape occurred at night, when the complainant was
required to stay at the Mbatha homestead while her grandmother, with whom she
would ordinarily stay, was away. The four young children present at the Mbatha homestead would then sleep the night together in a single room. The evidence
adduced by the complainant was that the appellant would enter the bedroom in the
dead of night and get onto the bed i n which she was sleeping. He would then place
his penis within her vagina and have intercourse with her, all this whilst she, in fact,
was sharing a bed with another child. All of this occurred in the darkness. Asked how
she could be sure that the person who violated her was the appellant, the
complainant gave the eminently logical answer that he was the only adult in the locked house and, thus, it could only be him .
[17] On first consideration , this modus operandi would seem to be questionable.
Would there not be a noise that would wake one or more of the other children in the room and thus expose the appellant? Would the complainant herself not cry out, with the same effect? According to the State case, there was , however, a witness who
confirmed the complainant’s version of events. That witness was the child who had peeped into the bedroom through the window during the daytime rape of the
complainant, namely S[…]a. He testified that on one occasion when all the children
shared a bedroom, he had not fallen asleep and was awake when he observed the
appellant do precisely what the complainant said that he did, namely, enter the
2 This was not the complainant’s name but was an appellation by which she was also known.
7
bedroom, get into the bed in which she slept and get on top o f the complainant .
Despite the darkness, he testified that he recognised the appellant because he wore
the same white T -shirt that he ordinarily wore when he was fixing motor vehicles.
Significantly, S[…]a was not cross -examined by the appellant’s legal representative.
[18] The complainant did not immediately report what had happened to her to an
adult. She explained that she was fearful that the appellant would carry out his threat
if she told anyone what he had done to her. She only reported the appellant’s
conduct about a year later, when she was watching a Digital Versatile Disc ( DVD )
where the issue of sex was alluded to. She was with the other children, who
mentioned loudly that the complainant knew something about sex , which comments
were overheard by the complainant ’s mother who then made further inquiries about
what was meant by this, and the full story then came out. The complainant was
thereafter examined by a doctor who completed a J88 document recording her
observations and findings. [19] In that J88 document, the examining doctor, Dr Salona Prahladh, made the
following notes of her observations of the complainant’s genitalia:
‘On genital examination, hymen tear @ 8’clock (sic) seen + - 5mm – healed
tear 7 months old.’
[20] In a further recordal, the examining doctor recorded the following:
‘The above person was allegedly raped by a known person more than five times. Last sexual assault was more than a year ago. On examination, old hymenal tear seen at 8 o’clock in keeping with penetration.’
The appellant’s case [21] No case at all was presented by the appellant. He chose to close his case
without himself testifying or calling the evidence of any witnesses. All that was put to the witnesses called by the State by his legal representative was that the appellant would deny raping the complainant. Yet, he did not do that under oath.
Analysis of the evidence on conviction
8
[22] The evidence on the first incident of rape narrated by the complainant was
clear and compelling. The evidence on the other counts was slightly foggier and lacking in detail. This, perhaps, is understandable because the complainant had
described in granular detail what had occurred to her during the daylight rape and did not go into the same detail when narrating what had happened to her during the nighttime rapes . Nonetheless, a prima facie case of multiple rapes had been made
out by the evidence adduced by the State that simply went unanswered by the
appellant.
[23] What is the effect of remaining silent in the face of a prima facie case? The
appellant in this matter, no doubt, was within his rights n ot to enter the witness box.
He could not be compelled to give evidence, less so if that evidence would tend to incriminate himself.
3 But his decision not to take to the witness box was not made in
a vacuum and consequences would naturally flow from it . What the consequences of
that decision could be was considered by Cameron JA in S v Tandwa and others ,4
when he observed that exercising the right to remain silent:
‘… does not suspend the operation of ordinary rational processes. The choice
to remain silent in the face of evidence suggestive of complicity must in an
appropriate case lead to an inference of guilt.’
[24] Murray v DPP ,
5 a matter that had its origin in Northern Ireland, but which
found its way to the United Kingdom’s House of Lords ,6 was a matter that dealt wit h
the issue of what inferences could be drawn from the silence of an accused person when faced with a prima facie case. In the House of Lords, Lord Slynn observed
that:
‘… if aspects of the evidence taken alone or in combination with other facts
clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation may as a
3 Constitution of the Republic of South Africa, section 35(3)(j).
4 S v Tandwa and others [2007] ZASCA 34; [2007] SCA 34 (RSA); 2008 (1) SACR 613 ( SCA) para 53
(Tandwa).
5 Murray v DPP [1994] 1 WLR 1 (HL) 11G.
6 The matter, thereafter, also proceeded to the European Commission on Human Rights.
9
matter of common sense allow the drawing of an inference that there is no
explanation and that the accused is guilty.’
Cameron JA endorsed Lord Slynn’s reasoning in Tandwa.
[25] The fact that a prima facie case has been made out by the State that goes
unanswered by an accused person obviously does not automatically result in the
onus borne by the State of proving the guilt of the accused beyond doubt being discharged. But a failure to provide evidence in rebuttal of a prima facie case where
the facts reveal that it was within the exclusive power of the accused person to demonstrate what the true facts were, and the accused person fails to take
advantage of that opportunity to give that explanation, may result in the prima facie
case established becoming conclusively established.
7 The reason for that is that
there is simply no evidence to gainsay the case made out against the accused person and there is therefore no reason to doubt the credibility or reliability of that
case.
[26] It appears to me that this is an instance where the appellant ought to have
explained what actually transpired with the complainant in the various bedroom s
about which evidence was led. This became more clamant in the light of the
unchallenged evidence of the medical practitioner who examined the complainant.
The obvious reason why t he appellant did not testify , and perhaps could not testify ,
was that to do so he would have to be cross examined, a prospect that perhaps did
not appeal to him , for, as John Henry Wigmore stated:
‘Cross -examination is the greatest legal engine ever invented for the
discovery of truth.’
8
The inference to be drawn is that cross- examination of the appellant would have
unequivocally established his culpability on the offences for which he was
charged.
[27] It is so that the evidence of the witnesses who implicated the appellant were
child witness es, as previously mentioned, and the evidence of such witnesses must
7 S v Boesak [2000] ZASCA 112; 2000 (1) SACR 633 (SCA)
8 J H Wigmore, J H Chadbourn, and WA Reiser : ‘Evidence in Trials at Common Law,’ 1974 ,
published by Little, Brown USA in 1974, page 32.
10
be approached with some caution. While the regional magistrate did not specifically
make reference to the cautionary rule by name when considering the evidence of
those children in his judgment , there is no doubt that he, in fact , applied such rule: he
acknowledged the youthfulness of the witnesses in his judgment , he c arefully and
critically scrutinised their evidence, and he sought corroboration for their evidence.
[28] The proper approach to the assessment of the evidence of children was
addressed by the Appellate Division in Woji v Santam Insurance Company
9 1981 (1)
SA 1021 when it stated the following:
‘The question which the trial court must ask itself is whether the young
witness’ evidence is trustworthy. Trustworthiness , as is pointed out by
Wigmore in his Code of Evidence para 568 at 128, 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 is 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 ” while the capacity of narration
or communication raises the question whether the child has “ the capacity to
understand questions put, and to frame and express intelligent answers ”
(Wigmore on Evidence vol II para 506 at 596) . There are other factors as well
which the Court will take into account 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?’
[29] The regional magistrate considered the abovementioned factors . He criticised
some of the child witnesses, more particularly the evidence of S […]a in certain
respects . As may be expected when the evidence of young children is heard, there
were contradictions between what they individually remembered and said. Those
contradictions are acknowledged. But they largely related to insignificant or superfluous issues that did nothing to detract from the collective power of their
evidence seen as a whole. The variations in their evidence did not diminish the
9 Woji v Santam Insurance Company 1981 (1) SA 1021
11
cogency of that evidence or suggest that they had conspired to falsely secure the
conviction of the appellant. On the contrary, that evidence, replete with its
imperfections , simply served to establish that such manipulated conduct did not
occur here.
[30] In the circumstances I am satisfied that the regional magistrate correctly
determined the guilt of the appellant and his appeal against conviction must
consequently fail.
Considerations on sentence
[31] Rape is always a serious matter . And it is a scandalously common offence.
Disturbingly, the rape of children is unacceptably commonplace. In S v Jansen,
10 the
court stated that:
‘Rape of a child is an appalling and perverse abuse of male power. ’
[32] Our society claims to be civilised, and we frequently extoll the importance,
and virtue, of ubuntu, but the conduct of an increasing number of men ignores this
important societal value. Children are not to be viewed as sex objects nor are they to
be viewed as easy and convenient targets for those who are not able to control their
sexual urges. Sexual attacks upon our children violate not only their bodily and
psychological integrity but it also forces them out of the idyll of childhood into the
adult world that they should not be required to face until they are equipped to do so.
[33] The complainant in this matter went to the Mbatha homestead for an entirely
innocent purpose. But her decision to go there had calamitous consequences for
her. The place where she no doubt thought that she would be safe turned out to be a place of immense danger to her. The person who she was entitled to believe that
she would be safe with, the appellant, turned out to be a predator intent on abusing her. Citizens are very quick to claim their constitutional rights but seem less inclined to acknowledge that children, too, have constitutional rights. Those rights must be
protected with the same vigour as the rights of adults .
10 S v Jansen 1999 (2) SACR 368 (C) at 378G -379B.
12
[34] The regional magistrate delivered a thorough and considered judgment on
sentence. He considered the well -known triad of interests formulated in S v Zinn ,11
and correctly applied the approach proposed in S v Malgas ,12 namely that the
minimum sentence required by the law to be imposed should not be departed from
for insignificant or flimsy reasons. There is a minimum sentence applicable to the facts of this matter, namely life imprisonment. The regional magistrate, correctly in
my view, found that there were no substantial and compelling reasons to depart from the imposition of the prescribed minimum sentence.
[35] In S v Bogaards ,
13 the Constitutional Court, observed that:
‘… sentencing is within the discretion of the trial court. An appellate court’s
power to interfere with sentences imposed by courts below is circumscribed. It can only do so where there has been an irregularity that results in a failure of justice; the court below misdirected itself to such an extent that its decision on sentence is vitiated; or the sentence is so disproportionate or shocking that no reasonable court could have imposed it. ’ (Footnotes omitted.)
[36] For an appellate court to interfere with a sentence, there must ordinarily be a
material misdirection by the sentencing court. Absent any such misdirection, an appellate court may not approach the issue of sentence:
‘… as if it were the trial court and then substitute the sentence arrived at by it
simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate court is of course entitled to consider the question of sentence afresh … ’
14
[37] I discern no misdirections in the judgment of the regional magistrate. He
appears to have properly exercised his discretion when considering the question of
sentence. That being the case, there is no scope for this court to interfere with the
sentence imposed upon the appellant.
11 S v Zinn 1969 (2) SA 537 (A).
12 S v Malgas 2001 (1) SACR 469 (SCA) (Malgas ).
13 S v Bogaards [2012] ZACC 23; 2013 (1) SACR 1 (CC) par 41.
14 S v Malgas 2001 (1) SACR 469 (SCA) para 12 (‘ Malgas ’).
13
The order
[38] I would acc ordingly propose the following order:
The appeal against conviction and sentence is dismissed.
MOSSOP J
I agree and it is so ordered:
CHETTY J
APPEARANCES
Counsel for the appellant : Mr E M Chiliza
Instructed by: Legal Aid South Africa
Ground Floor, The Marine
22 Dorothy Nyembe Street
Durban
Counsel for the respondent : Mr K M Shah
Instructed by: Director of Public Prosecutions
4
th Floor, Southern Life Building
88 Field Street
Durban