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IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]

CASE NO. CC22/2025

In the matter between:

THE STATE

Vs

THOBILIZWI MAQAM Accused
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA J

[1] The accused has been arraigned in this Court on six counts being housebreaking
with intent commit offences, kidnapping and the raping of three young women in
certain localities in Mount Ayliff between 2013 and 2014. The accused, who was
legally represented, pleaded not guilty to all the charges and elected not to disclose
the basis on which he pleaded not guilty. In two of the three rape charges, the State
invoked the provisions of section 51 read with Part 1, Schedule 2 of the Criminal Law
Amendment Act 105 of 1997. In in doing so, it indicated its intention to ask the court
for the imposition of t he applicable minimum sentences in the event of a conviction.
This was on the basis that the victim was under the age of sixteen years when she
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was raped and in the other matter, the rape was accompanied by the infliction of
grievous bodily harm.

[2] The summary of substantial facts which was provided to the accused in terms of
section 144(3)(a) of the Criminal Procedure Act 51 of 1977 (the CPA) was the
following. Between 2013 and 2014, the accused committed a range of offences of
rape around the district of Mount Ayliff in which he targeted female persons who
would be walking alone or who were staying with children in their homes. The
accused would attack them in their homesteads and or on their way home using the
same modus operandi. This was to break a nd enter their homesteads at night,
kidnapping and forcing them to have sexual intercourse with him against their will.
The accused was unknown to the victims until forensic DNA profiling was done
linking the accused to the swabs obtained from the victims. The DNA of the accused
matched the DNA found on the swabs obtained from the victims. The accused was
always wearing a balaclava or covered his face with a balaclava.

[3] The first complainant to testify was S[...] M[...]. Her evidence was that on 13
March 2013, she was fifteen years old. She was born on 19 February 1998. At the
time of the offence, she stayed with her great grandmother. However, she sadly
passed on in 2023. On 13 March 2013 she was at her homestead with her great
grandmother. She was as leep in her home in a bedroom she shared with her great
grandmother. They slept in separate beds. Her great grandmother would wake up at
12:00 midnight and pray. On this day, at about 12:00 midnight, her great
grandmother said that there was a bad odour an d requested her to check if she had
switched off the stove in which she had cooked tripe.

[4] She went to the kitchen to check and found that the stove was switched off. She
also checked the kitchen door and found it still secured with the pliers they us ed to
lock the door. She returned to the bedroom and reported to her great grandmother

lock the door. She returned to the bedroom and reported to her great grandmother
that everything was in order. They both went back to sleep. Because it was very hot
on that day, she slept wearing a top and an underwear only.

[5] She was still asleep when she felt someone waking her up by patting her on her
left arm. It was dark in the room as they always switched off the lights because

mosquitos were common during March. When she woke up, she saw a person
standing next to her. This person was wearing a balaclava and was carrying a
sword. There was an electric light outside their bedroom. This electric light was on
and it provided some light inside the room. This person told her to keep quiet and
wake up. Apparently, her great grandmother also woke u p. When the intruder
realized that her great grandmother was awake, he told her to keep quiet or he
would kill her.

[6] This person said that he had not come to do anything to her. He just wanted her
to knock at the neighbouring homestead where he wanted t o break in. He then
dragged her. She told this person that she was not dressed. This person took a bed
spread she had covered herself with when she slept and told her to cover herself
with it. Her great grandmother pleaded with him not to harm her. This pe rson
continued dragging her. She then started fighting this person. In the process she
managed to switch on the electric light inside the kitchen whose switch was next to
the kitchen door. This person overpowered her and dragged her out of the kitchen.
When they got to the veranda, she saw another young man who was also wearing a
balaclava. This young man said to her assailant that he did not tell him that they
were coming to Lholho’s homestead and then ran away.

[7] He continued dragging her and at some point, he instructed her to take off the
bed spread she had covered herself with. He tripped her and she fell down. He
forcibly took off her panty. He also took off his pants and raped her by forcefully
inserting his penis into her vagina. While he was copulating, she could hear her great
grandmother calling her aunt over the phone. When he finished raping her, he took
the bed spread and wiped his penis with it. He then took his sword, put it on her neck
and said that if she told anyone about the rape, he w ould kill her. He ordered her to

and said that if she told anyone about the rape, he w ould kill her. He ordered her to
put her panty back on and told her to go back into the house. When he was on the
veranda, he told her to take his back pack near the table in the kitchen and give it to
him. She did that and he then told her to lock the doo r. She locked the door after
which she just sat there in the kitchen.

[8] As she was sitting in the kitchen her great grandmother came into the kitchen.
She told her what the assailant had done to her. Her aunt and his boyfriend arrived.

At some point pol ice and an ambulance arrived and she was taken to hospital. She
was told that a rape kit would utilized and an HIV test was done. She was asked if
she was aware that she was pregnant and she told the hospital staff that she was
aware. Thereafter the police took a statement from her.

[9] The next witness was S[...]2 M[…]2, one of the complainants. Her evidence was
that on 20 August 2014, she stayed at Lubaleko Locality in Mount Ayliff where she
rented a room as she was schooling there. She was 18 years old at the time and
was doing grade twelve. She shared her room with her friend Zimasa. In their
premises there was an old lady and the owner of the premises but both stayed on
the other side. On 20 August 2014 at about 03:00 in the morning, she was sleeping
alone in her room because Zimasa had gone home. She felt a sword hitting her at
her back as if she was being woken up. The electric light in the room was on
because she is unable to sleep when it is dark. She saw that this person was
carrying a sword and his face was covered with a balaclava. This person had a red
backpack on his shoulder. This person told her to get up. He told her that if she
screamed he would kill her.

[10] She tried to fight him and in the process, this person cut her below her left
eyebrow. As she tried to hold the knife which he was also carrying, she also
sustained a cut in her hand. He ordered her to take off her clothes and squat or
bend. He then took out his penis and tried to insert it into her vagina as she was
bending in a squatting position. He was trying to penetrate her vagina from the back.
He then asked her if she was still a virgin. She told him that she was not a virgin
because at that time, young men had an obsession with girls who were still virgins.
However, she was still a virgin when she was raped by this person. She told this
person that she was not a virgin hoping that he would stop raping her. He ultimately

person that she was not a virgin hoping that he would stop raping her. He ultimately
succeeded in forcefully inserting his penis into her vagina. When her was done
raping her, he told her not to scream. Thereafter he went to the door and asked her
to open it and left. She testified that she had locked the door before she slept. She
had also closed the windows but one window had a loose handle. When he was
leaving he told her to open the door fo r him and she did so and the door was still
locked. She therefore assumed that he had gained entry into her room through the
window.

[11] After this person had left she screamed thus raising the alarm. The people who
also stayed in those premises came and she told them what happened. She testified
that she did not know the person who raped her and she had never seen him before.
Ultimately her grandmother arrived and took her to hospital by public transport.
Specimen was taken from her and she was given some treatment.

[12] The next complainant was A[...] M[...]3. Her evidence was that on 31 August
2014 at about 09:00 in the morning, she was walking in an open veld on the way to
see her boyfriend. She saw a person approaching and she proceeded walking
without paying any attention. As she continued walking and when she was walking
towards a certain school, she heard a noise that sounded like the noise of an okapi
knife. When she turned, a person placed a knife in her neck. She immediately told
this person to take the phone but he said he did not want it. He then told her to walk
and led her to a secluded area down the slope past an ant hill. All along, he had
placed a knife on her and when they reached a certain area he told her lie down. He
placed a knif e close to her neck and told her not to look at him. This person was
covering his face with a balaclava.

[13] This person lifted up her dress and pulled down her panty. He then inserted his
penis into her vagina and thrusted in and out. This person then as ked her if she was
not M[...]4. She then wondered how this person knew her as her nickname is M[...]4.
He continued thrusting in and out. He then said that when he was done, he would
take a rock and crush her with it after which he would throw her into a river a nd no
one would know where she was. She then begged her not to kill her. When he
finished raping her, she begged her not to harm her. This person then walked away
quickly towards a side path. She continued walking and met her then boyfriend who
is now her husband. Her husband who was with his sisters and other people asked

is now her husband. Her husband who was with his sisters and other people asked
her what happened. She told them that she had been raped in the mealie fields by a
person she did not know. She was taken to hospital where she was examined and
some specimen was taken f rom her vagina and she was also given some tablets.
Police were called and took a statement from her. She testified that she was 19
years old when she was raped. Under cross -examination, it was put to her that the
accused denied raping her. It was further put to her that he would say that she was

a local girl far younger than him and he would never think of having a sexual
relationship with her.

[14]After the all the complainants had finished testifying, the State called a number of
witnesses whose evidence was mainly on the handling of the chain evidence. This
evidence related to the specimens that were taken or vaginal swabs that were taken
on all the three victims; their safe keeping; how there were handled and ultimately
taken to the forensic lab oratory in Gqeberha; as well as their safe receipt at the
forensic laboratory. Much of their evidence is either common cause or was not
seriously contested. I do not consider it necessary to detail it in this judgment as that
will not serve any purpose. Suffice it to mention that the accused was linked to all the
rape offences through DNA analysis subsequent to another matter which was dealt
with in Kokstad which indicated that the DNA in that matter was from the same
person as in these matters.

[15] Formal admissions in terms of section 220 of the CPA 1 were entered into the
record. In those admissions, the medico -legal examination reports of all three
victims were admitted as well as the clinical findings and conclusions of the doctors
who examined the complainants. Furthermore, the DNA results in resp ect of each
complainant were admitted. In respect of all three complainants, the conclusions of
the forensic analysts who conducted the DNA analysis of the vaginal swabs of the
complainants and the reference sample obtained from the accused matched. That
was also admitted. After these admissions, the State closed its case.

[16] The accused testified in his defence. With regard to S[...] and S[...]2, the
evidence of the accused was just a bare denial which in effect was that it was not
him who raped the two complainants. In respect of A[...], the accused confirmed that
she knew her from Sipolweni Locality. It is common cause that A[...] is also from that

she knew her from Sipolweni Locality. It is common cause that A[...] is also from that
locality. He testified that he once had consensual sexual intercourse with her in 2014
but he coul d not remember the date in relation to the 31 August 2014, the date on
which A[...] was raped. He, however, testified that he knew A[...]’s nickname as

1 Section 220 of the Criminal Procedure Act reads thus: an accused or his or her legal adviser or the
prosecutor may in criminal proceedings admit any fact placed in issue at such proceedings and any
such admission shall be sufficient proof of such fact.

M[...]4 but he testified that on 31 August 2014 he never met anyone or asked anyone
if she was M[...]4. He further testified that he thought that the DNA that linked him to
the alleged rape of A[...] was from the sexual intercourse she had with her
previously. Under cross -examination, he testified that the consensual sexual
intercourse he had with A[...] was on 16 June 2014 as there was a June 16 youth
celebration on that day in their locality. When they met on the road in the locality,
they ended up going to another homestead where they had consensual sexual
intercourse after which they left that homestead and parted ways. All this evidence of
the accused was never put to A[...] and he also never gave some of it during his
evidence in chief. Other than its incoherence and nonsensical nature, it is all clearly
lies that did not even make sense. I do not th ink that I need to spend much time on it
as the accused himself was just making a bare denial, like he did in respect of his
other victims, S[...] and S[...]2.

[17] The evidence of the State that the complainants were raped was not disputed.
The eviden ce of the State was not seriously contested and some of it was
incontrovertible. For instance, the evidence of the complainants, though it was
evidence of single witnesses, was, even considered with the necessary caution,
highly credible and without any internal contradictions. The chain evidence as well as
the biology reports were very detailed and could not be challenged, at least not
cogently. All that the accused said was that in respect of S[...] and S[...]2, he was
not the person who raped them. As for A[...], his evidence was that he had sexual
intercourse by consent with her on 16 June 2014. Therefore, his DNA that was found
on her would have come from that consensual sexual intercourse, so he testified.
This evidence of the accused was clearl y false and illogical, to put it mildly, as was
his bare denials in much the same way as in respect of S[...] and S[...]2.

his bare denials in much the same way as in respect of S[...] and S[...]2.

[18] Most, if not all the evidence against the accused is common cause or was not
seriously disputed. It could, in any event, no t be disputed with any cogency. The
less said about the accused’s evidence the better as, if anything, it also served to
show that he raped the three complainants. In Van der Meyden2 the court stated the
legal position with regard to evidence in a criminal trial as follows:

2 S v Van der Meyden 1999 (2) SA 79 (WLD)

“The onus of proof in a criminal case is discharged by the state if the evidence
establishes the guilt of the accused beyond reasonable doubt. The corollary
is that he is entitled to be acquitted if it is reasonably possible that he might be
innocent. These are not separate and independent tests but the expression
of the same test viewed from opposite perspectives. In order to convict, the
evidence must establish the guilt of the accused beyond reasonable doubt,
which will be so only if there is at the same time no reasonable possibility that
an innocent explanation which has been put forward might be true. The two
are inseparable, each being the logical corollary of the other. In which ever
form the test is expressed, it must be sat isfied upon consideration of all the
evidence. A court does not look at the evidence implicating the accused in
isolation in order to determine whether there is proof beyond reasonable
doubt and so too does it look at the exculpatory evidence in isolation in order
to determine whether it is reasonably possible that it might be true.”

[19] Not only was the DNA of the accused found in the vaginal swabs that were
taken from the complainants on the date on which each one of them was raped. But,
also, his own evidence was that the three localities in which the complainants were
raped are within a walking distance from his own residential areas both in Kokstad
and his locality of Sipolweni. On all the evidence that was tendered by the State, the
admissions made and the accused’s own evidence, I am satisfied that the State has
proved the guilt of the accused beyond reasonable doubt.

[20] With that being said, there are two issues that this Court must deal with relating
to the two counts of rape in respect of which section 51(1) of the Act was invoked. In
respect of the complainant in count 4, the rape of S[...], it is common cause that she
was 15 years old at the time she was raped. Therefore, nothing further needs to be

was 15 years old at the time she was raped. Therefore, nothing further needs to be
said about her age as her age was within the purview of the age specifically referred
to in section 51(1) read with Part 1 of Schedule 2 of the Act.

[21] Similarly with count 5, the rape of S[...]2, section 51(1) of the Act has been
invoked. However, in respect of this count, this section has b een raised on the basis
that the rape of the complainant involved the infliction of grievous bodily harm. The

evidence of S[...]2 was that she sustained a cut on her hand and below the left
eyebrow. She testified that the scar that was caused that resulte d from the wound
she sustained on that day is still visible. This evidence finds corroboration from the
medico- legal report of Dr Mohomu who examined her and compiled her medico -
legal examination report. This begs the question, what does the infliction of grievous
bodily harm mean. There is no closed list of the injuries that must be sustained which
applies for all cases in all situations. Therefore, this, in my view, can only be
answered on a case by case basis.

[22] In Rabako3, Musi J (as he then was), writing for the majority, expressed himself
as follows:

“There is nothing in the Act of Schedule that indicates that the words should
be interpreted restrictively or widely. In my judgment the words should be
given their ordinary, natural meaning. I agree with the words of Viscount
Kilmuir L.C. that they only mean really serious. The words “really serious”
should be illuminated lest it leads to confusion or overemphasis. The New
Shorter Oxford English Dictionary: Lesley Brown (Ed) 1993 defines the
word “really” as “In a real manner; actually. Used to emphasise the truth or
correctness of an epithet or statement: positively, decidedly, assuredly.” The
word therefore does not indicate degree of seriousness. In this context it only
serves to emphasise that the harm inflicted must actually be serious in
essence then if the injury inflicted by the accused on the body of the rape
survivor is serious then it involves the infliction of grievous bodily harm. A
serious injury on one extreme may may mean an injury so s erious as to
endanger life, necessitate hospitalisation or to result in permanent loss of
bodily or mental faculty at the other; it may include a wound that heals rapidly.
It should not be a trivial or insignificant injury. A serious injury therefore need

It should not be a trivial or insignificant injury. A serious injury therefore need
not necessarily be an injury that is permanent, life threatening, dangerous, or
disabling. Whether injuries are life -threatening, necessitated hospitalisation or
immediate medical attention will generally be relevant to determine the degree

3 Rabako v S 2010 (1) SACR 310 (O) paras 7 to 10.

of seriousness but not necessarily the seriousness itself. Whether an injury is
serious will depend on the facts and circumstances of every case.

In S v Fereira 1961 (3) SA 724 (E) at 725 F – G Cloete AJ albeit in another context
opined that:

‘ One must assess the questi on of whether the injuries are serious or
not directly with reference to the particular victim who has suffered
them and not some arbitrarily defined average human being.’ I agree.

In R v Jacobs supra Van Winsen AJA, as he then was, stated, at 485 B – D:

‘In deciding whether the Crown has proved the infliction of grievous bodily
harm by the accused, the injury would, in my opinion, be entitled to have
regard to the whole complex of objective factors involved in the appellant’s
assault upon the deceased. It could take into consideration the shock which
would inevitably result from the stabs in the face, their number, nature and
seriousness, as well as to the blows directed to the accused’s (sic) stomach,
their severity and the results which flowed from their infliction.’

It seems to me that in order to determine whether the injuries in a particular case are
serious one has to have regard to the actual injuries sustained, the instrument or
object used, the number of the wounds -if any – inflicted, their nature , their position
on the body, their seriousness and the results which flowed from their infliction. It
must be remembered that an injury can be serious without there, necessarily, being
an open wound. In order to determine this, the judicial officer will be guided by
medical evidence. It is therefore advisable that in all such cases - where a finding in
relation to infliction of grievous bodily harm is considered – medical evidence should
be presented. The absence of medical evidence however is not fatal. In this matter
we have the benefit of the undisputed evidence of the complainant in relation to the
injuries that she sustained as well as medical report (J88) the contents of which was

injuries that she sustained as well as medical report (J88) the contents of which was
admitted by the defence. Although the J88 form that was completed by the medical
practitioner who examined the complainant was not before us, it was before the
magistrate. She read the doctor’s relevant findings into the record. From those

findings, the doctor does not make mention of a wound on the complainant’s neck.
The complainant pertinently testified that she sustained an open wound at the back
of her neck which was sutured. The doctor did not testify. The correctness of what
he recorded was not tested. Her evidence in this regard ought to be accepted.”

[23] I would only add that in the case of sexual assault, it would be dangerous to
assess the grievousness of the injury sustained by the sexual assault victim based
on how deep and/or how wide the wound is. In this case, the victim was an 18 year
old young woman who was sleeping peacefully in her rented modest place of abode
by being hit with a sword by an assailant who was also carrying a knife. He used the
sword or the knife resulting in the wounds she described. This was done to subdue
her and force her into a kneeling or squatting position from which she was raped
while wounded both on her hand and below the eyebrow.

[24] She described the scar of the wound that was inflicted below her left eyebrow as
being still visible. This will forever be a constant rem inder of what was done to her in
the early hours of the 20 August 2014. On the consideration of the entire
circumstance of the injuries sustained; why they were inflicted; the weapon used in
inflicting them; the vulnerability of the complainant in relation to her attacker; the fact
that she was unarmed and having been woken in her sleep by being hit with the
sword which she clearly saw as she had the electric light on in her room, I have
come to the conclusion that the rape involved the infliction of grievous bodily harm.

[25] I turn now to consider counsel for the accused’s submission that the accused
should be acquitted on the charge of housebreaking with intent to commit an offence
and kidnapping in respect of the victim in count 1. With regard to housebr eaking, the
argument was that there is no evidence proffered by the State about the condition of

argument was that there is no evidence proffered by the State about the condition of
the door before and after the alleged housebreaking. As I understood counsel’s
argument in this regard, there was no evidence of how the assailant gained entry
into the house as the door was still intact after the break in. There is no merit in
counsel’s argument in this regard. The evidence of S[...] was clear. She had checked
the door before she went to bed after being woken up by her great grandmother to
check the bad odour in the kitchen. She testified that she also checked the door and
found it still secured with a pliers that was used to lock it. To expect victims of crime

to rise to the level of the skill of the criminals and their ingenuity in their c riminal
activities is to raise the bar so high that whenever there is no damage to the door,
the criminal should get away with his criminal activity of breaking in unlawfully and
entering somebody else’s home. The bottom line is, in my view, that nobody sh ould
get inside somebody else’s home uninvited. Whether the door was properly locked
or not is neither here nor there.

[26] In respect of the kidnapping charge, counsel’s argument was that the evidence
of the complainant was that she was not taken very far as she was taken outside and
raped within the same premises. The evidence of S[...] was very clear. She was
asleep when she felt being patted with a sword on her arm. She was then dragged
half naked from her bedroom, through to the kitchen and out of t he kitchen to a spot
near a widow where she was raped by her assailant. What then, is the definition of
kidnapping. The issue of kidnapping can easily be put to rest with reference to the
unreported judgment of the full bench of this Court in Salman4 in which Rugunanan
J defined it as follows:

“Kidnapping consists in the unlawful and intentional deprivation of the liberty
of movement of a person. The essential elements of the offence are (a)
unlawfulness; (b) deprivation of liberty or of custody ; (c) of a person; and (d)
intention.”

[26] The evidence of S[...] was that she was woken in her sleep and dragged at knife
or sword point from her bed to a spot outside the house. This brings what happened
to her within the parameters of kidnapping, the element s of this offence being all
satisfied. I might add that there is no requirement that a person must have been
taken to a place that is some distance away from where she or he was for him or her
to have been kidnapped as long as there was unlawful deprivation of freedom.

[20] In the result, the accused is found guilty of all the charges preferred against the

[20] In the result, the accused is found guilty of all the charges preferred against the
accused in respect of all the counts preferred against him beyond reasonable doubt.
Therefore, the accused is found guilty as follows:

4 S v Salman and Another (CA & R 69/2021) [2023] ZAECMHC 61 (14 November 2023) at para 19.

1. Count 1, housebreaking with intent to commit an offence.
2. Count 2, housebreaking with intent to commit an offence.
3. Count 3, the kidnapping of S[...] M[...].
4. Count 4, the rape of S[...] M[...].
5. Count 5, the rape of S[...]2 M[...]2.
6. Count 6, the rape of A[...] M[...]3.


____________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT


Appearances

Counsel for the State : C Mkentane
Instructed by : NDPP
Mthatha

Counsel for the accused : S.T. Kekana
Instructed by : Legal Aid South Africa
Mthatha

Date heard : 05 August 2025
Date Delivered : 06 August 2025