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

CASE NO: CA&R 58/2024

In the matter between:

T[...] M[...] APPELLANT

And

THE STATE RESPONDENT
______________________________________________________________________

JUDGMENT
______________________________________________________________________
MHAMBI AJ

[1] This appeal, with leave of this Court on petition, emanates from the conviction
and sentence of the appellant on 09 May 2023 by the Mthatha Regional Court on one
count of rape. Since the appellant was convicted of raping a victim that was younger
than 16 years of age, the minimum sentence applicable on conviction was life
imprisonment. This is in terms of section 51 (1) of the Criminal Law Amendment Act 105

of 1997. The sentence now appealed against is 15 years’ imprisonment which the trial
court imposed on the appellant after it found that there were substantial and compell ing
circumstances which justified a deviation from the prescribed sentence of life
imprisonment.

THE APPEAL AGAINST CONVICTION

[2] The appellant contends, as the basis of his appeal that:

3.1 The court erred in concluding that the evidence of the complainant, who was
a single witness, passed muster of the principles that govern single witness
testimony.
3.2 The court erred in convicting the appellant on a charge of rape whereas the
State failed to establish beyond reasonable doubt that the appellant rap ed the
complainant.
3.3 The court erred in convicting the appellant on rape, whereas, at best for the
prosecution, the evidence tendered by the complainant, would, if proven to be
true, establish sexual assault.
3.4 The court erred in exercising its discr etion on the issue that required
expert evidence.
3.5 The court erred in finding that the version of the appellant was not
reasonably true, more in particular that it found corroboration from the State
witnesses. It ought to have found the appellant’s v ersion to be reasonably
possibly true.

APPEAL AGAINST SENTENCE

[3] The appellant challenges the sentence imposed by the court a quo on the basis
that the victim or complainant testified that she had no grudges against him, therefore
the appellant contends that a rehabilitative sentence ought to have been imposed
instead of direct imprisonment.

THE FACTUAL BACKGROUND

[4] In the court a quo, the appellant was charged with rape of his biological daughter.
The evidence led in the court a quo was to the effect that the appellant touched the
complainant on her breasts, as a result of which she was uncomfortable. He allegedly
hit, pulled and caused the complainant to lie on her back, and inserted his penis into her
vagina. The complainant’s description of the alleged act of sexual penetration by the
appellant was that ‘she felt something inside’, and her thighs were wet. It was further
her evidence that she first reported the incident to one Pamela, who appears to be her
mother’s friend. The record further indicates that, when reporting the alleged incident to
Pamela, the victim asked her how long it normally takes to open a sexu al assault case.
According to Pamela, the complainant did not tell her how the rape happened, except
that the appellant massaged her head and touched her back while she, her mother and
the appellant were lying in bed. Subsequently, the matter was reported by the
complainant at Mthatha Central police station as rape. Pamela accompanied the
complainant to have the matter reported.

[5] The court a quo accepted the version of the complainant and also accepted the
legal principle that such evidence has to be accepted with caution. In that regard, it
correctly cited authorities regarding the relevant cautionary rule. The court a quo
accepted as the undisputed fact that the victim and the appellant are father and
daughter. They were living together in a single r ented flat and they were together on the
day of the incident. It reasoned that there was no evidence before it that the
complainant had ever made false allegations against the appellant, further accepting the
complainant’s evidence that she has no reason t o lie about the appellant whom she
trusted.

[6] The court a quo rejected the submission on behalf of the appellant that, it is

trusted.

[6] The court a quo rejected the submission on behalf of the appellant that, it is
Pamela who persuaded the complainant to open a charge of rape instead of sexual
assault in keeping with what the complainant ask ed Pamela regarding the process of

reporting a case of ‘sexual assault’. It took into account the age of the victim, that she
was about fourteen years at the time of the alleged rape, and concluded that, from her
age, it was impossible for her to be influenced by a third person, in this regard Pamela.

[7] Dr. Linda Mtshulana, who completed the J88, testified. According to him, on his
observation of the victim, he observed a whitish discharge on the private parts of the
victim, he took a sample of that di scharge for DNA analysis. The DNA conclusions were
that “no semen was detected”. Dr Mtshulana’s conclusion in the J88 report was that
sexual assault probably occurred. The Dr was not called to give evidence that would
elucidate his conclusion in the light of the fact that the results of DNA analysis were that
no semen was detected from the vaginal samples that were obtained from the
complainant.

[8] In the appeal before this Court, the appellant contends that the trial court ought to
have exercised ca ution in considering the young witness’s evidence on two grounds,
namely, on the ground of being a child witness and secondly, on the ground of being a
single witness. Further according to the appellant, the fact that victim reported the
incident to Pamela as that of sexual assault, but later, a charge of rape was laid, ought
to have been considered by the trial court as a ground for casting doubt in the case for
the prosecution.

THE LEGAL PRINCIPLES

[9] The law is trite that a court of appeal will interfere with the factual findings made
by the trial court where the trial court materially misdirected itself insofar as its factual
and credibility findings are concerned. 1 It has also been held that in the absence of
demonstrable and material misdirec tion by the trial court, its findings of fact are

1 R v Dhlumayo and another 1948 (2) SA 677 (A).

presumed to be correct and will only be disregarded if the recorded evidence shows
them to be clearly wrong.2

[10] I now turn to deal with what the law requires in the consideration of the
evidence of a s ingle witness, specifically when that witness is a child. This Court is
mindful that in the appeal before it, the issue of competence and reliability of the
complainant’s evidence as a child was not canvassed as basis of this appeal, therefore
no finding need be made in that regard. I will proceed on the basis that the victim was a
competent witness.

[11] In S v Sauls and Others 3, the court laid down the principles to be applied in
assessing the evidence of a single witness when it said:

‘There is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see the remarks of Pumpff
JA in S v Webber 1971 (3) SA 754(A) at 758). The trial Judge will weigh his
evidence, will consider it s 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 testimony, he is satisfied that the
truth has been told.’

[12] With regard to the evidence of a single witness, section 208 of the CPA states
that an accused may be convicted of any offence on the single evidence of a competent
witness. It is apparent from the record that the trial court was alive to the need to apply
caution in ass essing the complainant’s evidence as a single witness, hence its
reference to the cautionary rule. It also considered the totality of that evidence while
being mindful of the fact that firstly, the State was saddled with the burden to prove the
guilt of th e appellant beyond reasonable doubt while simultaneously bearing in mind
that if the version of the appellant is reasonably possible true, he is entitled to an

2 S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645e -f. See also: S v Monyane and Others 2008

(1) SACR 543 (SCA) at para 15; S v Francis 1991 (1) SACR 198 (A) at 204e.
3 1991 (3) SA 172 (A), at 180E.

acquittal. In the end, the court a quo found that the evidence of the complainant was
satisfactory in material respects.

[12] In Woij v Santam Insurance Co. Ltd4, the court said the following:

‘The question which the trial court must ask itself is whether the young witness’
evidence is trustworthy. Trustworthiness … depends on factors such as the child
powers of observation, his power of recollection, and his power of narration on
specific matters to be testified on. In each particular case the capacity of each
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 chi ld has capacity to understand the question put, and
to frame and express intelligent answers’.

[13] However, a different approach was suggested in S v M 5, where Shakenovsky
AJ held that the correct approach is to not to apply the general cautionary rule, but to
look at the evidence as a whole and the reliability of what had been placed before the
court. I agree with this approach.

[14] The essential question in any criminal matter is whether the State has proven its
case beyond reasonable doubt. The cautionary rule should not be allowed to be a
substitute for the test of proof beyond a reasonable doubt. The court is in any event
enjoined to weigh trustworthy and unreliable evidence before it makes its determination
or finding.

[15] There is only on e test in a criminal case, and that is whether the evidence
establishes guilt of the accused beyond a reasonable doubt. The accused is acquitted

4 1981(1) SA 1020 (A) at 1027 H-1028A.
5 1999 (2) SACR 548 (A) at 501.

only if there is a reasonable possibility that an innocent explanation which has been
proffered by the accused might be reasonably true.

[16] The approach to be followed in order to determine whether the accused version
is reasonably true, was laid down by the SCA in State v Trainor 6 where it stated that: -

‘A conspectus of all evidence is required. Evidence th at is reliable should be
weighed alongside such evidence as may be found to be false. Independently
variable evidence, if any, should be weighed to see if it supports any evidence
tendered. In considering whether evidence is reliable, the quality of that
evidence must of necessity, be evaluated, as must corroborative evidence, if any.
Evidence, of course, must be evaluated against the onus on any particular issue
or in respect of the case in it’s entirely’.

[17] The trial court, in its assessment of evidence and application of caution relating
to the evidence of the complainant failed to consider two crucial aspects. Firstly, that the
victim gave evidence as a single witness and a child, her evidence should have b een
analyzed with caution. It overlooked the fact that on Pamela’s showing, no details were
given to her by the complainant regarding how the rape took place. It further
disregarded the fact that Pamela recommended that a charge of rape be laid when on
her version she was asked by the complainant how long it took to report sexual assault,
not rape.

[18] Had the magistrate carefully considered the complainant’s evidence against the
conspectus of the evidence that was adduced at trial, he would have recognized that
the complainant’s evidence does not find support from that evidence, at least not to the
standard of proof beyond reasonable doubt that the law requires in criminal case. He
would have recognized that Dr Mtshulana’s conclusions on whether there was rape did
not as much relate to the offence of rape but to ‘sexual assault’ and even so, they were

not as much relate to the offence of rape but to ‘sexual assault’ and even so, they were
inconclusive. For this reasons, Dr Mtshulana ought to have been called to elucidate the

6 2003 (1) SACR 35 (SCA) at 9.

conclusion made in the J88, that ‘sexual assault’ probably occurred. I may add that
section 5 of the Sexual Offences and Related Matters Amendment Act 32 of 2007
provides that the offence of sexual assault is committed when a person unlawfully and
intentionally violates the complainant without their consent. Significantly, the definition of
‘sexual violation’ explicitly excludes sexual penetration which is an element of th e
charge of rape that the appellant faced in the court a quo. Furthermore, the DNA
results which manifestly excluded the existence of semen in the vaginal swabs that
were obtained from the complainant ought to have been a weighty indicator in the
magistrate’s assessment of evidence, that the complainant’s version that she was
sexually penetrated hence ‘her thighs were wet,’ could not be the truth.

[19] All of these factors, ought to have been considered in the light of the fact that it
was Pamela who suggested to the complainant that she needed to open a case of rape
in circumstances where the complainant enquired from her how long it would take ‘to
report sexual assault. This was an example of the suggestibility of a child which is a part
of the rational e behind the cautionary rule applicable to child testimony. Furthermore,
Pamela told the trial court that at the time of her interaction with the complainant, she
did not know the difference between “sexual assault” and “rape”. During the hearing of
this a ppeal, Mr Mfihlo, who appeared for the respondent conceded that the DNA
findings and the J88 report do not support the allegations of rape.

[20] I find it strange that, even though the trial court accepted that the DNA results
were negative as far as d etection of the semen in the complainant’s vaginal swabs, it
proceeded and commented that, ‘somebody failed to do his duty’ as a way of justifying
its disregard of this crucial aspect of the evidence and the effect it ought to have had on

its disregard of this crucial aspect of the evidence and the effect it ought to have had on
the case for th e prosecution. The trial court erred and misdirected itself on this aspect
too.

[21] The law is settled as far as the approach to be applied in evaluation of evidence
in a criminal matter is concerned. In S v Van der Meyden7, Nugent J said:

7 1997 (2) SA 79, 2001 (2) SACR 97 at 80 H-81B.

‘The onus of proof in a criminal case is discharged by the State if evidence
establishes the guilt of the accused beyond reasonable doubt. The collar is that
he is entitled to be acquitted if it is reasonably possible that he might be innocent,
(see, for example, R v Difford 1937 AD 370 especially at 373,383). 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. . . 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
not look at the exculpatory evidence in isolation in order to determine whether it
is reasonably possible that it might be true’.

[22] Having considered the record of this appeal, it is clear that the trial court
misdirected itself and erred in convicting the appellant. In this case, the State failed t o
prove the guilt of the appellant beyond any reasonable doubt. This Court is at liberty to
interfere with the findings of the trial court. In the circumstances, this appeal against
conviction should succeed. The sentence imposed on the appellant axiomatic ally falls
away.

ORDER:

[23] In the result, I would make the following order:

1. The appeal is upheld.
2. The conviction and sentence imposed on the appellant are set aside.
3. The appellant shall be released from incarceration forthwith.


________________________
M. MHAMBI

JUDGE OF THE HIGH COURT (ACTING)

I agree

_______________________
L. RUSI
JUDGE OF THE HIGH COURT


Appearances:

For the appellant : Adv. S Sintwa
Instructed by : Siphumeze Khwaza Inc.
Mthatha

For the respondent : Adv. S Mfihlo
The Office of the Director of Public
Prosecutions
Mthatha

Date heard : 19 February 2025
Date delivered : 19 August 2025