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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: A021/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
In the matter between:
M[…] P[…] S[…] Appellant
and
THE STATE Respondent
JUDGMENT
MALINDI J
Introduction
[1] The appellant was charged with rape in terms of Section 3 of the Criminal
Law Amendment Act
1, read with the provisions of Section 51(1) of the Criminal Law
1 Act 32 of 2007.
2
Amendment Act 2 (“the Minimum Sentences Act”) , in the Regional Court held at
Pretoria
[2] The State alleges that on or about 24 June 2019 at or near White City in
Soweto, the appellant did unlawfully and intentionally commit an act of sexual
penetration with a minor female person, NMT by inserting his penis or an unknown
object into her vagina without her consent. The minor child was six years old at the
time.
[3] He pleaded not guilty and tendered no plea explanation in terms of
Section 115 of the Criminal Procedure Act.
[4] On 21 August 2023, the appellant was found guilty as charged. On
1 September 2023 he was sentenced as follows: twenty (20) years imprisonment of
which five (5) years are suspended for a period of five (5) years on condition that the
accused is not again convicted of rape, attempted rape, or sexual assault committed
during the period of suspension. He appeals against conviction only.
[5] The appellant has an automatic right to appeal against his conviction and
sentence as he was sentenced after 31 December 2007, being the date of coming
into effect of the Minimum Sentences Act.
Background
[6] The following are common cause facts:
[7] It is common cause that the complainant was born on February 13, 2013,
and was therefore aged 6 at the time of the alleged incident. It is also common cause
that at the time of the alleged incident the complainant was visiting her grandmother,
referred to M[...], who was also in a romantic relationship with the accused. It is also
common cause that on the date of the incident, the grandmother M[...] had gone to
do her odd jobs, leaving the complainant, her sibling and the complainant’s cousin in
2 Act 105 of 1997.
3
the care of the accused. It is also common cause that on the evening in question the
complainant had reported some discomfort to her mother when she arrived at the
accused’s home and that she was only taken for medical attention at Stratford Clinic
in Orange Farm the following day.
[8] The complainant’s mother reported the matter to the police.
Evidence
[9] The complainant was taken to the Stratford Clinic at Orange Farm, where
she was examined by Dr Venkatesh on 25 June 2019. The J88 that she completed
as part of her examination was handed in without objection. Dr Santana was called to
explain the findings.
[10] The examining doctor recorded his medical findings as contained in the
medical form J88 which was admitted as Exhibit A.
10.1. The J88 records that:
10.1.1. It was completed on June 25, 2019, at 15h25 at Orange
Farm Stratford Clinic. According to this doctor, in the medical J88.
10.1.2. The complainant had been born prematurely and was
aged six at the time of examination.
10.1.3. During the medical examination the child’s panty was
collected for forensic examination.
10.1.4. During the medical examination the treating doctor had
utilised the services of a chaperone and Zulu and Sesotho languages
were used during the consultation.
10.1.5. The child had reported that M khulu (grandpa) had placed
induku (a stick) in her private part while she was in his bedroom in
White City.
10.1.6. The child was crying during the medical examination and
there was no evidence of drugs or alcohol in her system.
10.1.7. There was some discharge that was observed in her
genitalia during the medical examination.
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10.1.8. The urethra was observed to be swollen and the clinical
conclusion was that the said injuries are consistent with vaginal
penetration.
10.1.9. The child was also referred to social workers for further
intervention.
10.1.10. There was no anal examination conducted on the child
during the medical examination.
10.1.11. There were no external physical injuries noted during her
medical examination.
[11] Doctor Santana, who testified on behalf of the examining doctor who was no
longer available, was not cross-examined on the contents of the J88.
[12] Ms I[…] T[...] (Ms T[...]), the complainant’s mother testified that the appellant
and her aunt were in a love relationship, and they lived together in White City. She
testified that at the time of the incident, the complainant and her brother, Jabula, had
been visiting her aunt (who was referred to as grandma or M[...] ) for a period of 2
weeks.
[13] She testified that on the day of the incident she had finished work and
proceeded to White City to fetch the complainant and her younger brother so that
they could go to Orange Farm to visit relatives. She testified that she was in a hurry
and packed the complainant’s and her younger brother’s clothes . Her cousin, R[…],
asked her to wait for her boyfriend who is an Uber driver who will take them to
Orange Farm.
[14] Ms T[...] testified that while they waited for the Uber driver the complainant
reported that she had pains i n her private part. She testified that she smeared
Vaseline on the complainant’s private parts and in between her thighs as she thought
it was a skin irritation.
[15] Ms T[...] testified that she was about to check the complainant, but the
complainant’s grandmother dismissed the complainant’s complaint as that of a “spoilt
5
brat”. She testified that she eventually left with her children and their cousin, her
cousin, R[…], and her aunt, to Orange Farm.
[16] The complainant persistently complained about the pain in her vagina on the
following morning at Orange Farm. She also appeared very restless.
[17] It was because of the complainant’s restlessness while they were in Orange
Farm that she only at this stage decided to check up on the complainant as to what
was the problem . Ms T[...] observed that the complainant had a gaping hole in her
vagina that a child of her age should not have.
[18] When questioning the complainant, she reported that the appellant had
placed “indoco in her genitalia while they were in his bedroom”. She further testified
that the complainant reported to her that she had informed her grandma who
threatened to slap the complainant.
[19] The mother testified that she immediately took the complainant to Dr
Vinketesh, and thereafter reported the matter to the police. The appellant was
subsequently arrested.
[20] Dr Vinketesh examined the complainant at the Orange Farm Stratford Clinic
on 25 June 2019 and compiled the J88 medical report. Dr Vinketesh has since retired
from the service of the State. Dr Vinketesh’s J88 medical report was handed in as
Exhibit “A”. Its contents were testified to by Dr A Santana as set out above.
[21] The complainant testified that the appellant is her grandpa. She was visiting
him at White City during 2019 when the incident occurred. She testified that on the
day of the incident her grandma was at work and they were left in the care of the
appellant (grandpa).
[22] The complainant testified that she was playing outside on the street with her
cousin and sibling brother when the appellant called her to come inside the house.
She testified that she asked the appellant why he had called her, and he responded
by saying “not to worry why”.
6
[23] She testified that she was under the impression that the appellant wanted to
send her somewhere as he had done so on other occasions.
[24] The complainant testified that once she was inside the bedroom , the
appellant went outside to collect a stick and he returned to the bedroom. When she
was left in the bedroom, the appellant had closed the door but it was not locked. She
further testified that while she was left alone in the bedroom she was scared to leave
as she thought the appellant would see her sneak out or leave. The appellant did not
tell her that he was going to get a stick, he left the bedroom and closed the door.
[25] The complainant testified that when the appellant returned to the bedroom he
lifted her and placed her on the bed and undressed her of her trousers and panty.
She testified that the appellant placed the stick in her “bambasi” (a colloquial
reference to a vagina) while she was seated on the bed. She testified that when the
stick was inserted in her genitalia she was in a sitting position lying slightly on her
back with her thighs set apart. She estimated that the stick was approximated 60 cm
in length.
[26] When the appellant inserted the stick into her genitalia, this caused her to
scream, and the appellant told her to keep quiet . The appellant did not inform her
why he had inserted the stick into her genitalia. After he stopped inserting the stick
she kept quiet as instructed.
[27] The complainant testified that her sibling and cousin returned to the house as
it was getting late, and at that stage she was already dressed and seated in the
sitting/living room but crying. The complainant testified that her cousin told her that
they had seen the appellant when he took the stick from the tree, and they thought
that he was going to chastise her.
[28] The complainant testified that later on her grandmother had returned home
and asked her why she was crying. She told her that the appellant had inserted a
stick into her vagina.
7
[29] After her report to her grandma, her mother arrived and instructed her to
pack her clothes so that they could get to Orange Farm for a pre -arranged visit with
all the children. She told her mother that her private parts were sore without
explaining why.
[30] The complainant testified that when they (her mother , sibling, grandmother
and Amahle’s mother ) were in Orange Farm they all slept on the floor. She further
testified that she only reported to her mother what the appellant had done the next
day, and her mother took her to the clinic. She further testified that no one else had
inserted anything into her genitalia while she was at Orange Farm.
[31] This constitutes the evidence in respect of the facts surrounding the incident.
The appellant’s evidence
[32] The appellant denied the allegations against him and proffered the following
version.
[33] The appellant admits that he lived in White City at the time of the incident
with his girlfriend (also known as M[...]) as well as her grandchildren. However this
relationship ended in 2020.
[34] The appellant testified that he, and the complainant’s mother had a good
relationship.
[35] He testified that he had displayed a grandfatherly attitude to the child, and
that he would babysit her and the other children when his girlfriend was at work, and
he would prepare food for them.
[36] On 24 June 2019 his girlfriend “ M[...]” went to work, and he had the duty to
look after the children. At all material times he remained outside in the sun, as it was
winter, and they had no electricity. He further testified that at no point did he call the
complainant inside the house. She played outside in the disused car with her friends.
8
[37] The appellant testified that M[...] called whilst at work to check up on the
children and on her return from work she boiled water to bath the children. After her
bath the complainant never complained or made any report. She continued playing
with the other children.
[38] The appellant testified at approximately 19h00 the complainant’s mother
arrived with her boyfriend.
[39] The appellant testified that he does not know why the complainant would
accuse him of rape instead of the grandfather from Diepkloof whom M[...] told him is
the culprit. He testified that he believes that the complainant was influenced to lie
about him and make false accusations.
[40] After the close of the State’s case and M[...] was made available to the
defence, the appellant indicated his intention to call M[...] as a defence witness. After
many postponements occasioned by her non- appearances she eventually arrived at
Court. However, when she was called to testify, she had left and the defence closed
their case.
The Court Below’s findings
[41] The Learned Magistrate considered the issues for determination and held as
follows in respect of each.
Single witness and cautionary rule
[42] The Learned Magistrate considered that the complainant is a single witness
to the incident and her evidence was evaluated with the necessary caution.
3
[43] A court is entitled to convict an accused person on the evidence of a single
witness.4
3 R v Mokoena 1932 CPO 79; S v Stevens 2004 JDR 0505 (SCA).
4 Section 208 of Act 51 of 1977.
9
[44] It was submitted on behalf of the appellant that a Court should not easily
convict upon the evidence of a single witness unless the evidence is substantially
satisfactory in all material respects or unless it is corroborated.5
[45] The rule laid down in R v Mokoena is not an arbitrarily rule. Even when a
single witness has an interest or bias adverse to the accused it does not necessarily
mean that the witness should not be a credible witness.
6
[46] In S v Webber Rumpff JA held that it is not possible to prescribe a formula in
terms whereof every single witness’ credibility can be determined, but it is essential
to approach the evidence of a single witness with caution and to weigh up the good
qualities of such a witness against all the factors which may diminish the credibility of
the witness.
7
[47] Whilst it is trite law that the evidence of children and single witnesses should
be approached with necessary caution due to the inherent dangers therein8, the
exercise of the cautionary rule must also not be allowed to displace the exercise of
common sense.9 Even though a single witness’ evidence might be criticised in some
aspects, it still does not exclude the fact that a Court might despite the criticism
levelled against the witness, find the witness a credible witness.
10 Corroboration that
implicates an accused or corroboration in material aspects strengthens the evidence
of a child or single witness even though subject to criticism.
Corroboration
[48] The evidence of the complainant was corroborated by the evidence of the
State witnesses to the effect that:
48.1. The complainant and her siblings were playing under the watch of
the appellant who was the only adult present on the day in question.
5 S v Ganie 1967 (4) SA 203 (N).
6 S v Webber 1997 (3) SA 754 (A); S v Kubeka 1982 (1) SA 534 (W).
7 S v V 2000 (1) SACR 453 (SCA); Maema v S 2011 2A SAC 175; S v Rugunan 2013 (1) SACR 389
SCA).
8 Woji v Santam Insurance Company Ltd 1981 (1) SA 1020 (A).
SCA).
8 Woji v Santam Insurance Company Ltd 1981 (1) SA 1020 (A).
9 S v Sauls & Others 1981 (3) SA 172 (A) at 180E-G; S v Artman & Another 1968 (3) SA 339 (SCA).
10 S v Abdoorham 1954 (3) SA 163 (N); S v Sauls & Others (supra).
10
48.2. The complainant testified that her cousin told her that they saw the
appellant when he took the stick from the tree.
48.3. The complainant reported to her mother the evening in question that
she had pains in her genitalia and she reported that she was raped by the
appellant the following morning at Orange Farm. The complainant further
reported to her mother that she told M[...] who said that she will slap her.
48.4. The medical evidence (J88) records swelling of the vulva which is
consistent with vaginal penetration.
48.5. The complainant’s behaviour at Orange Farm of being restless, not
playing and crying indicated discomfort, if not pain.
48.6. The complainant’s evidence was corroborated by her mother’s
evidence on the pain and discomfort the complainant was in.
Credibility of witnesses
[49] The state submits that the credibility of a witness’ evidence was based upon
the presiding officer ’s assessment of the full conspectus of the evidence, who
concluded that the complainant made a very good impression on the Court . She
came across as an intelligent and honest witness. There was nothing improbable
about her evidence and there was nothing to indicate that she made up her evidence.
[50] I agree with the state’s submissions that the contradictions in the evidence of
the State witnesses are not material to the extent that it vitiates the State’s case in its
totality.
11 Not every contradiction a ffects the credibility of a witness . The Court looks
at all the evidence to see if even with the contradictions it is satisfied that the truth
has been told. The Court a quo found that the issue whether the other children c ame
in the house while the complainant was in the bedroom while being raped by the
appellant or afterwards when she was already in the dining room area was not a
material contradiction. This is not a misdirection in the assessment of the evidence
where the evidence as a whole points to the conclusion reached.
where the evidence as a whole points to the conclusion reached.
11 S v Mafaladiso & Andere 2003 (1) SACR 583 (SCA).
11
[51] The court below rejected the appellant’s evidence and proceeded to assess
whether the state had proved its case beyond any reasonable date. The Court may
only reject the evidence of the appellant if it is satisfied that in the light of all the
evidence before it their evidence is so untrue and so improbable that there is no
reasonable possibility of it being true. Viewed holistically and taking into account
probabilities and improbabilities, the Court below was accordingly correct in finding
that the appellant’s version is false and not reasonably possibly true.
12
Powers of the Appeal Court
[52] An Appeal Court’s powers to interfere on appeal with the findings of fact of
the Trial Court are limited. In the absence of demonstrable and material misdirection
by the Trial Court, its findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly wrong.
13
[53] The following order is made:
1. The appeal is dismissed.
MALINDI J
JUDGE OF THE HIGH COURT
JOHANNESBURG
I agree
MIA J
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Appellant: Adv S Hlazo instructed by Legal Aid South
Africa
For the Respondent: Adv L R Surendra instructed by Office of the
12 S v Chabalala 2003 (1) SACR 134 (SCA) 142D-J.
13 R v Dhlumayo 1948 (2) SA 677 (A) at 705-706; S v Manyane & Others 1997 (2) SACR 641 (SCA).
12
Director of Public Prosecutions
Date of Hearing: 26 August 2024
Date of Judgment: 21 July 2025