IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO.: A220/2024
REPORTABLE
In the matter between:
PETER GOLIATH FIRST APPELLANT
MOEGAMAT ZIDANE GOMAS SECOND APPELLANT
CAMERON FOSTER THIRD APPELLANT
RICARDO DANIELS FOURTH APPELLANT
DUWAYNE GALAND FIFTH APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Goliath and Others v S (case no A220/2024) [2025] ZAWCHC
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
Coram: DA SILVA-SALIE J et MOOSA AJ
Heard: 8 August 2025
Delivered: 13 October 2025 (delivered via email to the respective Counsel)
Summary: Criminal law – appeal – gang rape – single witness – contradiction
between testimony and police statement – no bodily injury – rape
proved – accused watching – male dominance – common purpose.
ORDER
On appeal from the Regional Court in Mitchells Plain, the following is ordered:
1. The appeal against conviction and sentence is dismissed.
JUDGMENT
Moosa AJ (Da Silva-Salie J concurring)
Introduction
[1] In this appeal, t he appellants (sometimes referred to collectively herein as “the
accused”) are seeking to have their convictions and sentences set aside. On 25 April
2023, they were each convicted in the Regional Court at Mitchells Plain for two counts
of rape and one count of kidnapping. They were each sentenced to life imprisonment for
rape (as per the minimum sentence regime under the Criminal Law Amendment Act 105
of 1997) [“the CLAA, 1997”], and to five years imprisonment for kidnapping. In terms of
s 280(2) of the Criminal Procedure Act 51 of 1977 (“the CPA”), the sentences on count
two (for rape) and count three (for kidnapping) runs concurrently with the sentence on
count one (for rape) . Each appellant w as declared unfit to possess a firearm in
accordance with the Firearms Control Act 60 of 2000.
[2] The appellants exercised their automatic right of appeal against their conviction s
and sentences with respect to the two counts for rape. Leave to appeal was granted by
the court a quo against the conviction and sentence pertaining to the count f or
kidnapping.
[3] On 26 July 2022, e ach of the appellants pleaded not guilty to the following
charges which were put to them in a trial held in camera:
(a) Count 1 (rape) alleged that the accused (now the appellants) contravened
s 3 (read with related provisions) of the Sexual Offences Act 32 of 2007 (“the SOA,
2007”) in that on or about 6 to 7 February 2021, and at or near Mitchell’s Plain, the
accused unlawfully and intentionally com mitted an act of sexual penetration with an
adult female person (“the complainant”) by inserting his/their penis(es) into her vagina
without the complainant’s consent.1
(b) Count 2 (rape) alleged that the accused, all being members of a group
acting with common purpose for the furtherance of a crime, contravened s 3
(read with related provisions) of the SOA, 2007 in that on or about 6 February
2021, and at or near Mitchell’s Plain, the accused unlawfully and intentionally
committed an act of sexual penetration with the complainant by Mogamat Zidane
Gomas inserting his penis into the complainant’s mouth without her consent; and
1 The trial was held in camera to protect the complainant’s identity. This judgment will do likewise.
(c) Count 3 alleged that the accused are guilty o f kidnapping in that on or
about 6 February 2021, and at or near Mitchell’s Plain, the y unlawfully and
intentionally deprived the complainant of her freedom of movement by placing
her in a motor vehicle and drove her to Wolfgat and tied her up till the eve ning of
7 February 2021.
[4] It was further alleged that s 51 and part 1 Schedule 2 of the CLAA, 1997 applied
in view of the fact that the a ppellants, as the accused persons, acted with common
purpose and the complainant was raped more than once and/or by more than one
person.
[5] The argument advanced before us by Mr M Calitz for the appellants is that the
magistrate erred by convicting them on a single witness’s testimony. Relying on S v Van
der Meyden 1999 (1) SACR 447 (W), he contended that her evidence did not establish
their guilt beyond reasonable doubt . In his heads, he argued that this can only be
proved ‘if at the same time there is no reasonable possibility that his [the appellants’]
innocent explanation may be true’ (para 7) . Mr Calitz also argued that the magistrate
committed a material misdirection by not d eviating from the prescribed minimum
sentence for rape . Relying on S v Vilakazi 2009 (1) SACR 552 (SCA) para 21, h e
argued that the sentences imposed are excessive. For the State, Ms EA Kortje argued
that the appeal is meritless.
Issues for adjudication
[6] The issues before us are two-fold. First, whether the appellants proved that the
magistrate erred by finding that the State proved its case beyond reasonable doubt
against each appellant on all three counts . If this onus is not discharged , then the
second issue to be determined is whether the appellants established justifiable grounds
to conclude that the magistrate failed to exercise his discretion on sentence judicially
and properly; or that the sentences imposed is vitiated by a material misdirection, or the
sentences are disturbingly inappropriate. See S v Rabie 1975 (4) SA 855 (A) at 857D-F.
[7] Answering the twin questions forming the subject of this appeal necessitates that
the salient facts distilled from the appeal record comprising the State’s case and the
defence case at trial be narrated. I do so under the next heading. Thereafter, counsels’
submissions before us are summarised. Then its cogency as regards the appellants’
convictions and sentences is assessed in the light of the applicable legal principles.
Relevant factual matrix
[8] The primary evidence led by the State against the appellants , and on which they
were convicted, was that of the complainant. In the ensuing paragraphs, I summarise
the essence of her evidence, including her testimony pertaining to the identification of
the appellants as the perpetrators of the serious offences committed against her over 2
days.
[9] The complainant was 25 years of age when she testified . Her testimony is that
she was present at the residence of a friend in the evening of Saturday 6 February
2021. They were watching movies. Shortly after 22h00, t he complainant left for home.
She was unaccompanied. While walking home in Lost City, Mitchells Plain , she noticed
that a motor vehicle was following her. It was a white Volkswagen Golf. The vehicle
stopped next to her in the road. S he saw the First Appellant, who was known to her by
his nickname Pilo . His face was uncovered. He was seated in the back of the vehicle.
He enquired from the complainant as to where she was going . She responded by
saying that she was walking home.
[10] The complainant testified that the First Appellant suddenly exited the Volkswagen
Golf. He grabbed her and forced her into the backseat of the vehicle. He re -entered the
vehicle, and the driver proceeded to a nearby forested area, where she was gang -
raped.
[11] When the complainant was forced into the vehicle, it was occupied by the other
appellants as well. Their faces were unmasked. She identified them because they were
all well-known to her. Only the driver’s face was covered. For this reason , he could not
be identified. The Third Appellant, known to the complainant by his nickname Cammy,
sat in the passenger seat in the front of the vehicle (i.e., next to the unknown driver).
[12] The complainant testified that she was forced to sit in the back seat of the motor
vehicle. She was seated in between four male persons known to her. There were two on
her left and two on her right side. She identified the men on the backseat with her to be
the First Appellant (aka Pilo), the Second Appellant (whose nickname is Dan/Zidane) ,
the Fourth Appellant (whose nickname is Ricky) , and the Fifth Appellant (whose
nickname is Chucky) . As a result of their positioning in relation to the motor vehicle’s
door and Dan/Zidane holding the complainant tight , she was prevented from exiting the
vehicle. The complainant testified that she was trapped in the motor vehicle against her
will.
[13] The complainant testified that while in the motor vehicle, she enquired f rom the
appellants as to where they were taking her , to which the reply was that she ‘must just
remain silent’. She testified further that she was scared and feared for her life.
[14] The complainant testified that on arrival at the nearby bushy area called Wolfgat,
she was taken out of the motor vehicle and then blindfolded with a cloth. She was then
led deeper into the bush at Wolfgat. After walking for a while, she was stopped by the
appellants. Her blindfold was removed . Although it was dark, the complainant testified
that she could see her surroundings. She explained that there was bush all around her.
[15] The complainant testified that at this stage Ricky, being the Fourth Appellant,
threw her to the ground . He undressed her . When s he was naked , Ricky pulled his
pants down and, with the complainant on her back, he started to penetrate her. Ricky
penetrated the complainant by inserting his penis into her vagina. He did so without her
consent. She testified further that, during this time, the Second and Third Appellant were
standing there. They watched Ricky’s sexual assault on her.
[16] The complainant testified that she was kicking because she was trying to fight
with them, to break loose from them. As a result of her efforts to ward off the attack, Pilo
and Chucky , being the First and Fifth Appellant respectively, proceeded to hold the
complainant down. Pilo grabbed the complainant at her feet and he held it tight ,
preventing her from kicking. Chucky held her hands down tight. Pilo and Chucky held
the complainant in position when Ricky started to penetrate he r. Pilo and Chucky
continued to hold he r by her feet and hands respectively throughout the time during
which Ricky had his penis in her vagina. In this way, they actively facilitated the assault
on her.
[17] The complainant testified that when Ricky was done , Zidane [the Second
Appellant] got on top of her. Like Ricky, the Second Appellant too lowered his pants and
penetrated her by inserting his penis into her vagina. He did so without the
complainant’s consent. She testified further that while Zidane raped her, Pilo and
Chucky continued to hold her tight at her feet and hands r espectively, thereby actively
facilitating Zidane’s sexual assault. At that time, Cammy (Third Appellant) and Ricky
(Fourth Appellant) were just standing there and looking on.
[18] The complainant testified that when Zidane was done with her, Cameron [aka
Cammy] got on top of her. Cammy, unlike Ricky and Zidane, took off the T -shirt that he
was wearing and then he pulled his pants down. Cammy got on top of the complainant
while she lay with her back to the ground. He too penetrated her by inserting his penis
into her vagina without her consent. While Cammy did so, Pilo and Chucky continued to
hold her tight at her feet and hands respectively. The remaining appellants, being
Zidane and Ricky, just stood there and watched the assault.
[19] Cammy, being the Third Appellant, was the last one who vaginally penetrated the
complainant on 6 February 2021. Later, t he appellants tied the complainant to a tree
using rope . Chucky, being the Fifth Appellant, held the complainant’s hands so they
could be tied. The appellants then left. The complainant could not flee as she was tied
to a tree. She said: ‘I was there the whole night, screaming and crying, but no one could
help me.’
[20] In the evening on Sunday 7 February 2021, each of the appellants returned to
Wolfgat. Although it was dark, the complainant could see the ir faces. They were
unmasked. When they arrived, the complainant was still tied to the tree. The
complainant was hungry. She had not eaten all day.
[21] During evidence in chief, the complainant testified that , on the Sunday evening,
Zidane instructed her to suck his penis. He took his penis out and put it in her mouth.
She sucked Zidane’s penis as instructed. She did so without consent . While this was
going on, the other four appellants were standing there and looking on at Zidane.
[22] After sucking Zidane’s penis, the complainant was untied and freed. She testified
that b efore leaving the scene at Wolfgat , Zidane said to her that if she told anyone
about what happened, then he is going to hurt her and her family. The complainant ran
home. On arrival there, she bathed and went to bed. On the next day, being Monday 8
February 2021 , she could not take it anymore. She testified that she broke down in
tears and told her aunt J[...] about the incident. It was her aunt J[...] who encouraged the
complainant to report the matter to the police. The complainant did so , but only days
later. By the time the case went to trial, aunt J[...] was deceased. Th erefore, the
complainant was the State’s key witness.
[23] At the trial, t he complainant had no doubt that the appellants kidnapped her and
raped her while she was in their captivity. She identified them because their faces were
not covered. She saw them in the motor vehicle and at Wolfgat on the Saturday and
Sunday evening. The complainant recognised each of the appellants because they are
all known to her. This is not in un disputed. Each reside in the same neighbourhood
where she lives, namely, in a suburb of Mitchells Plain. Each appellant resided in homes
close to the complainant ’s home at the time of her kidnapping and rape in February
2021.
[24] Zidane lived in a house next to the complainant. She knew him for all her life.
She knows Cammy for years. Ricky is a family friend whom she knew since childhood .
As for Chucky, the complainant said that she knew for about 5 years. Each of the
appellants was so well known to the complainant that she called them by their
nicknames. She testified , and Pilo confirmed, that the appellants are each members of
the Americans, a neighbourhood street gang.
[25] The First (aka Pilo) , Third (aka Cammy) , Fourth (aka Ricky) , and Fifth (aka
Chucky) Appellant each tendered a defence which is a bare denial. None of them were
able to provide substantiation or corroboration for their versions. Each denied that they
were present in the white Volkswagen Golf vehicle on Saturday evening, 6 February
2021. They all denied being at Wolfgat with the complainant on 6 and 7 February 2021 .
They all denied raping her. None of them could recall where they were on those days, or
what they did. The Second Appellant (aka Zidane) raised an alibi defence. His father, Mr
Fadiel Davids, testified that Zidane was home on the Saturday night when the offences
were perpetrated between 22h00 and 23h00.
[26] At the trial, the State intended to call Dr Ahmed Haffejee, being the medical
doctor who examined the complainant and completed the J88 medical form. However,
owing to Dr Haffejee suffering a stroke, he was unable to testify. The contents of the J88
report are hearsay. Its admissibility is subject to the prescripts of s 3 of the Law of
Evidence Amendment Act 45 of 1988. See Fortuin and Another v S (A17/2024) [2024]
ZAWCHC 244 (5 September 2024) para 52. Therefore, b y agreement between the
prosecutor and the defence attorneys, Mr Van Rooyen (for Zidane) and Mr Cupido (for
the rest of the accused), the J88 was admitted into evidence and marked Exhibit C.2
[27] Owing to the importance which the appellants’ counsel before us , Mr Calitz,
placed on aspects of the J88 in support of his submission that the trial magistrate
misdirected himself when he convicted the appellants, it is necessary to summarise key
notations recorded therein by Dr Haffejee. Part I records that the compl ainant was
examined on 16 February 2021 at 09h55 at Heideveld Community Health Centre. In
Part II, which details the ‘History of the alleged assault and/or rape’, Dr Haffejee wrote:
‘23 year old female alleges that she was sexually assaulted on 6/2/2021 around 23h00.
The alleged perpetrators are known to the patient.’
As for clinical findings, Dr Haffejee recorded that he observed no physical injuries (that
being, abrasion s, bruise s, cut s, or other injury) . As for the results of Dr Haffejee’s
gynaecological examination, he wrote that he observed no injuries or abnormalities. As
for the complainant’s hymen, Dr Haffejee recorded that there were ‘Clefts at 3:00; 5:00;
8:00; 9:00’ and ‘loss of hymen tissue between 6:00 and 7:00’.
[28] Dr Haffejee recorded his conclusions on the J88 form, based on history and all
findings, both positive and negative, as follows:
2 The consent by the defence to the admission of the J88 report into evidence obviated the need
for the trial magistrate to make a formal ruling, before closure of the State’s case, on the admissibility of
the report’s contents. For the approach to be adopted in determining admissibility in any such instance,
see S v Ndlovu and Others 2002 (6) SA 305 (SCA).
‘Possibility of forced vaginal penetration by penis / object cannot be excluded, despite
the absence of acute injuries. (The patient has been sexually active since the age of 18
years).’
[29] Before us , Mr Calitz relied heavily on Exhibits A and B . Exhibit A is the
complainant’s statement recorded in English by a police officer, Ms Du Bruyn. It was
recorded about a week after the incidents. Exhibit B is the statement made by
Samantha Pretorius, a sergeant stationed at Mitchells Plain Family Violence, Child
Protection and Sexual Offences Unit. This statement was in the docket at the
appellants’ bail hearing.
[30] The events recounted in Exhibits A and B differ in some respects from the
complainant’s testimony. First, whereas she testified that during her rape on 6 February
2021 she was held down by two assailants, paragraph 5 of Exhibit A records that she
was held down by four persons. Secondly, whereas the complainant testified that she
was forced to suck Zidane’s penis (being the Second Appellant), paragraph 6 of Exhibit
A records that she was forced to suck Chucky ’s penis (the Fifth Appellant) . She
answered likewise to a question from the court. Thirdly, whereas she testified that Pilo
(the First Appellant) grabbed her and forced her into the motor vehicle, paragraph 3 of
Exhibit A (and paragraph 4 of Exhibit B) records that Ricky (the Fourth Appellant) did
this. Fourthly, while the complainant testified that she was penetrated vaginally by three
persons on Saturday evening, paragraph 5 of Exhibit A records that she was penetrated
vaginally by all five of the appellants. Fi fthly, whereas she testified that the appellants
left Wolfgat after she was vaginally raped by three of the m on the Saturday evening,
paragraph 6 of Exhibit A records that she was raped by all the appellants for a second
time on that evening before they left. Sixthly, while the complainant testified that Zidane
raped her on the Sunday evening, paragraph 4 of Exhibit B records that Ricky raped her
on that evening. Seventhly, while the complainant testified that the appellants returned
to Wolfgat on the Sunday evening, paragraph 7 of Exhibit A records that they were there
the whole day.
Submissions by counsel
[31] The core submissions advanced by Mr Calitz before us are outlined in paragraph
[5] above. He posited several strands in support of his main ground that the magistrate
erred by convicting the appellants on the complainant’s testimony. I now summarise
them.
[32] First, Mr Ca litz p ointed to the differences highlighted in paragraph [30] above .
Relying on S v Muhlaba and Others 1973 (3) SA 141 (R), he argued that the differences
constitute serious contradictions showing not only that the complainant’s version was
inconsistent in material respects , but also that she was prone to giving misleading ,
unreliable information about key events pertaining to the offences . On this basis, Mr
Calitz submitted that the magistrate erred in not approaching the complainant ’s
evidence with more caution. If he did, so the argument proceeded, the n the magistrate
would have concluded that the complainant was neither credible nor reliable, and that
her evidence was neither clear nor satisfactory in every material respect for purposes of
sustaining convictions on single witness testimony as envisaged by s 208 of the CPA.3
3 Section 208 of the CPA reads: ‘ An accused may be convicted of any offence on the single
evidence of any competent witness.’
[33] The second string in Mr Calitz’s bow is the information recorded by Dr Haffejee in
the J88 form. He argued that the magistrate erred by failing to give proper weight to the
fact that there were no injuries on the complainant’ s body. Mr Calitz submitted that this
fact casts serious doubt on the truthfulness of the complainant’s version that (i) her
hands and legs were held down tight by Chucky and Pilo respectively to enable her
being raped by the others ; (ii) her vagina was repeatedly penetrated by some of the
appellants; and (iii) her hands were tied by the appellants from Saturday night until
Sunday evening.
[34] Mr Calitz also contended that the magistrate erred by placing no weight on the
fact that the disclosures made to Dr Haffejee differ in material respects from the
complainant’s oral testimony. Mr Calitz pointed to the fact that the J88 makes no
mention of: (a) the kidnapping on 6 February 2021; (b) that the complainant was tied to
a tree at Wolfgat from 6 to 7 February 2021; and (c) that the complainant was raped on
7 February 2021. Mr Calitz reasoned that if any of these key events occurred, then the
complainant would have mentioned it to Dr Haffejee who, in turn, would have recorded
them in the J88.
[35] Mr Calitz submitted that when the J88 is viewed objectively and considered in its
proper context, then it casts serious doubt on the veracity of the complainant’s assertion
that she was the victim of a kidnapping and gang rape. He argue d that the J88 adds
weight to the contention that the appellants’ denials of guilt are reasonably possibly true.
[36] A third string in Mr Calitz’s bow is his argument that, based on S v Safatsa and
Others 1988 (1) SA 868 (A) and S v Mgedezi and Others 1989 (1) SA 687 (A), the
evidence to the effect that while one of the appella nts raped the complainant the rest
stood around, does not establish the pre-requisites for rape by common purpose.
[37] Before us, Mr Calitz contended that the life sentences imposed are not mitigated
with any degree of mercy or compassion. He argued that the sentences are retributive
in nature and /or effect, as well as disproportionate, having regard to the appellants’
respective personal circumstances, the gravity of the offence s, and society ’s interests.
Mr Calitz contended that the magist rate erred in failing to consider the different roles
played by each appellant in the offences, and erred in not finding that there w ere
substantial and compelling circumstances present for all the appellants, or for any
among them.
[38] Ms Kortje, for the State, contended that the appeal ought to b e dismissed. She
conceded that the inconsistencies enumerated in paragraph [30] above existed. Relying
on S v Bruiners en ‘n Ander 1998 (2) SACR 432 (SE) at 437F, she submitted, however,
that the trial court was correct in its approach when dealing with the inconsistencies,
namely, the magistrate considered the nature and cause of the inconsistencies, and
viewed them in the light of the totality of the trial evidence. Ms Kortje submitted that the
magistrate correctly concluded that the incon sistencies were, in context, not of a
material nature, nor had the effect of destroying the complainant’s credibility , nor her
evidence implicating the appellants in the commission of the offences.
[39] Ms Kortje contended that the absence of injuries on the complainant’s body as
per the J88 does not mean that she was not raped in the manner described by her. Ms
Kortje pointed out that the medical examination took place on 16 February 2021, being
10 days after the vaginal rapes on 6 February 2021. Ms Kortj e argued that this lapse of
time allows for healing to occur. She also pointed to Dr Haffejee’s conclusion that
‘forced vaginal penetration by penis/object cannot be excluded, despite the absence of
acute injuries’.
[40] In reply to Mr Calitz’s common purpose argument, Ms Kortje relied on Tshabalala
v S; Ntuli v S 2020 (5) SA 1 (CC) to substantiate her submission that the trial court
correctly found that the evidence proved that the complainant was raped on consecutive
evenings by a gang . She submitted that the complainant was clear and unequivocal in
her identification of each appellant, and in her evidence that each was present at
Wolfgat on Saturday and Sunday evening, and each acted in concert with the requisite
mens rea.
[41] On se ntencing, Ms Kortje pointed out, with reference to S v Musingadi and
Others 2005 (1) SACR 395 (SCA) para 52, that a conviction based on common purpose
may, together with other relevant mitigating factors, constitute grounds for deviating
from a prescribed minimum sentence. However, she argued that the facts of this case
and the personal circumstances of the appellants do not merit a deviation.
Consequently, so she submitted, the appellants failed to show a material misdirection
on the magistrate’s part.
Evaluation of the ground of appeal in re conviction
[42] It is common cause that inconsistencies exist between the complainant’s viva
voce testimony and some contents recorded in Exhibits A and B. The nature and extent
of the differences appear in paragraph [30] above. They need not be repeated here. The
trial record shows that the complainant was subjected to rigorous cross-examination by
counsel for the defence . The complainant was also questioned by the magistrate and
the prosecutor on certain inconsistencies.
[43] The reasons for the differences were explained by the complainant. Her explanation
was consistent throughout . The complainant testified that she was still traumatised
when she reported the events to SAPS. Sergeant Pretorius confirmed that the
complainant was still traumatised when she spoke to her at a later time. The
complainant spoke in Afrikaans when she reported the incidents. She spoke to Ms Du
Bruyn who was Xhosa-speaking. The complainant said that a language barrier existed
between her and this police officer. She explained that her fragile state of mind coupled
with the language barrier with Ms Du Bruyn accounted for the differences between facts
in Exhibit A and her oral testimony, the latter of which occurred more than a year after
the incidents in February 2021.
[44] The trial magistrate was mindful of the contradictions. He referred to them in his
judgment. The magistrate recorded that , as a result thereof, he re-read the
complainant’s statement and considered her explanation for the differences. He found it
to be plausible. I agree. For the applicable test in this regard, see S v Xaba 1983 (3) SA
717 (A) at 730B-G; S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA) at 593E-594H.
[45] Differences between oral testimony and a prior statement to the police is a
common occurrence. Statements made to, and written down by, police officers are
notoriously not recorded with the degree of care, skill, accuracy, and/or completeness
that they require (and deserve). See S v Rhode [2019] 1 All SA 740 (WCC) para 16.9.
Various factors contribute to this daily reality. The factors include, but are not limited to,
inadequate writing skills; poor listening skills; and/or communication challenges caused
by, amongst others, enunciation, speech, and differences in, for e.g., language and/or
culture.
[46] Communication related challenges may well result in the precise meaning
intended by a statement’s signatory to be lost in the process of a police officer’s mental
translation, resulting in the statement not necessarily being a fair or accurate reflection
of the details imparted by the witness. Therefore, the existence of differences between a
witness’s testimony and a prior police statement is, per se, no justification for rejecting
the former in favour of the version recorded in the latter; nor does it justify a conclusion
that the witness is unreliable or lacks credibility.
[47] More is required for any such outcome to be merited. No hard and fast rules can
be laid down in advance as to the circumstances when viva voce evidence wi ll prevail
over the contents of a police statement ( or vice versa). This is a factual enquiry to be
undertaken in every instance.
[48] In th e case before us , the complainant ’s home language is Afrikaans (not
English). She narrated her ordeal to the police in Afrikaans.
[49] In his heads (at para 59), the appellants’ counsel argued that, owing to the police
officer’s surname (i.e. Du Bruyn), the probabilities favour an inference that she was ‘an
Afrikaans speaking person’. This submission is dangerous, and misses the point . First,
to draw a factual inference from a surname runs counter to the rules of evidence. Doing
so would also promote judicial stereotyping of persons based on , for e.g., surname.
Judicial officers should resist a ny temptation to do so. Secondly, the issue is not
whether Ms Du Bruyn could speak Afrikaans, but rather whether Exhibit A accurately
reflects the material information imparted to Ms Du Bruyn by the complainant.
[50] The magistrate considered the inconsistencies mentioned in pa ragraph [30]
above and evaluated them against the evidence viewed in its totality. The magistrate
concluded that the inconsistencies were not of a material nature.
[51] It does not make a material difference in casu whether it was Pilo or Ricky who
grabbed the complainant and forced her into the motor vehicle. She identified both men
as part of the group who kidnapped her and kept her captive. She placed them both in
the backseat of the vehicle en route to Wolfgat; and she placed them both at Wolfgat on
the Sunday evening when she was set free . It also makes no material difference
whether the complainant’s vagina was penetrated on the Saturday evening by all five
appellants, or only by three of them (while others made common purpose with th ose
acts).
[52] Similarly, i t makes no material difference that Exhibit A records that the
complainant was raped the whole of Sunday 7 February 2021. The appellants were
never charged with, nor convicted for, repeatedly raping the c omplainant on that day.
Count 2 was for a single act of rape . It was committed in the evening o n Sunday 7
February 2021. On any version of the facts, the complainant placed all the appellants at
Wolfgat on th at evening. Furthermore, in the light of the doc trine of common purpose
applied in relation to count 2, it makes no material difference whether the complainant
sucked Zidane’s penis on the Sunday evening while all the other appellants stood
watching, or whether she sucked Ricky’s penis while all the other appellants stood by
and watched.
[53] Having regard to the consistency and cl arity of the complainant’s testimony
throughout her time in the witness box as appears from the trial record, I conclude that
the magistrate’s findings that the differences noted in paragraph [30] above did not
undermine her credibility, cannot be faulted. This is more so whe n consideration is
given to the fact that the magistrate was steeped in the trial’s atmosphere. See S v
Dhlumayo 1948 (2) SA 677 (A). As such, the magistrate was able to observe the
complainant, and is best-suited to determine her demeanour while she testified about
her trauma and about the humiliating , dehumanising experiences suffered at the
appellants’ hands.
[54] In his judgment, t he magistrate commented that the complainant did not
exaggerate nor embellish her testimony, even though she had opportunity to do so. She
testified that only one of the appellants raped her on the Sunday evening , while the
others stood watching. If she intended to mislead the court by implicating all of them,
then her testimony wou ld have been tailored accordingly. That the complainant did not
do so is telling – it supports a finding of her credibility and reliability as a single witness.
[55] As for the J88 form, the magistrate held that the absence of vaginal injuries is
immaterial. This finding too is unassailable on the facts. While the presence of vaginal
injuries as recorded in a J88 form would provide some measure of corroboration for the
complainant’s version (see Lotter v S [2025] ZAWCHC 370 (21 August 2025) para 37) ,
the converse does not hold true. In other words, the absence of vaginal injuries does
not, per se, justify a finding that vaginal penetration did not occur.
[56] The vagina is known to be a forgiving organ . In a woman’s anatomy , a vagina
has the capacity to endure and to heal. This is a relevant consideration here because
the examination by Dr Haffejee occurred, as appears from the J88, ten days after the
incidents on 6 February 2021. As appears from paragraph [28] above, Dr Haffejee
concluded that the absence of noticeable acute injuries did not exclude the possibility
that forced vaginal penetration of the complainant’s vagina by a penis occurred (as was
reported to Dr Haffejee).
[57] Another relevant consideration in the present context is, as recorded in
paragraph [43] above, the indisputable psychological damage which manifested in the
complainant. What caused it? Rape is more than a mere physical a ssault which may
cause a physical scar. It causes mental scarring too. While the physical scars heal, the
mental scars remain. See S v Kearns 2009 (2) SACR 684 (GSJ) para 15. Accordingly,
the complainant’s psychological trauma is evidence consistent with her having been
raped.
[58] The absence from the J88 of any mention of certain events which the
complainant testified occurred on the Saturday and Sunday evening (see paragraph
[34] above) is immaterial in casu. Their omission does not, per se, serve as evidence
that the complainant fabricated a version while she was in the witness box. Dr Haffejee
did not testify. There is nothing in the trial record which indicates what questions he
posed to the complainant which elicited the answers recorded in the J88. Accordingly,
an ad verse inference cannot be drawn against the complainant based on omissions
from the J88.
[59] I now turn to the issue o f rape by common purpose (see paragraph [36] above).
The highwater mark of the submission that the State failed to establish guilt by common
purpose in relation to the multiple rapes at Wolfgat on the Saturday and Sunday
evening appears at paragraph 16 of Mr Calitz’s heads of argument. It reads:
‘When asked about what the other Appellants did, she responded “They were just
standing there, Your Worship, looking at him” and “They were present” and doing
“Nothing”’.
[60] Before us, the appellants’ counsel submitted that the complainant’s testimony
that some of the appellants did “nothing” indicat es that they did not actively participate
in, nor acted in furtherance of, the rapes perpetrated by the others. Consequently, so he
reasoned, the magistrate erred in finding that Pilo and Chucky were guilty of rape by
common purpose with the rest of the appellants (Ricky, Zidane, and Cammy) who were
held to have vaginally penetrated the complainant without her consent on 6 February
2021. On the same basis, it is argued that the magistrate wrongly convicted Pilo,
Cammy, Ricky, and Chucky for rape by common purpose with Zidane who was found to
have had oral sex with the complainant without her consent on 7 February 2021. These
submissions are unmeritorious.
[61] The complainant’s testimony on this score must be viewed in context. It must be
understood against the mosaic of her evidence in its totality . If not, then a skewed
picture would emerge. The complainant said that while being raped by Ricky, then
Zidane, and finally Cammy on 6 February 2021 , the others looked on and did nothing .
By this she meant that they did nothing to stop the rape s. While Zidane and Cammy
stood waiting for their turn to rape t he complainant, she was emphatic about the active,
supporting roles played by Pilo and Chucky. They enabled vaginal penetration to occur
by reason that Pilo held the complainant’s legs down, while Chucky held her hands
tight. Both Pilo and Chucky acted as they did in reaction to the complainant f ighting
back to ward off her rap ists, and in concert with the other perpetrators . See paragraphs
[16] to [19] above.
[62] In these circumstances, the finding cannot be faulted that Pilo and Chuck y were
guilty of rape by common purpose. To this end, the eviden ce, viewed in its totality,
shows that Pilo and Chucky : (a) were at Wolfgat when the r apes were committed by
Ricky, Zidane, and Cammy, all acting in concert as a group; (b) were each positively
identified by the complainant as being at Wolfgat when she was raped by the remaining
appellants acting in concert as a group; (c) each knew of the group’s mode of operation
to commit the crime of rape and each intended for the complainant to be raped ; and (d)
each associated themselves with the actions of the group by holding down the
complainant to enable the remaining members of the group to penetrate her vaginally,
one by one. Joint criminal liability must ensue for Pilo and Chucky as perpetrators - they
actively associated and participat ed in a common criminal design with Ricky, Zidane,
and Cammy, a ll of whom acted in concert as a group with the requisite blameworthy
state of mind. See Tshabalala v S; Ntuli v S supra para 48.
[63] Furthermore, I hold that t he magistrate did not misdirect himself when he
concluded that Pilo, Cammy, Ricky, and Chucky were guilty of rape by common purpose
perpetrated on the Sunday evening. In instances of group rape, ‘the mere presence of a
group of men results in power and domina nce being exerted over women victims ’
(Tshabalala v S; Ntuli v S supra para 51). When dealing with rape perpetrated by a
group of men, it must be remembered that ‘rape can be committed by more than one
person for as long as the others have the intention of exerting power and dominance
over the women, just by their presence in the room ’ (Tshabalala v S; Ntuli v S supra
para 54).
[64] The evidence shows that the appellants were all complicit and acted in cahoots.
They kidnapped the complainant and kept her captive. They instilled fear by intimidation
and brutality. When they arrived at Wolfgat on the Sunday evening, the y had all the
power over the complainant. She was their hostage. They left her unfed for the entire
Sunday. She was at the mercy of a group who the complainant knew are members of
the feared Americans gang.
[65] By tying her to a tree located deep in the bush where her screams could not be
heard, the group intended to, and did, ensure that escape was impossible and help was
inaccessible. The group intended to, and did, exert their power and dominance over the
complainant when Zidane instructed that she suck his penis . None in the group uttered
a word of obje ction, nor did anything to disassociat e from Zidane’s actions. Out of fear,
the complainant sucked Zidane’s penis.
[66] As a mark of their association with Zidane’s actions , all the remaining group
members stood and watched the complainant being humiliated and de humanised
through rape. The requirements for j oint c riminal liability are proved . Pilo, Zidane,
Cammy, and Chucky actively associated and participated in a common criminal design
with Zidane. They each had the requisite blameworthy mindset.
[67] The submission that the complainant’s evidence, as a single witness, was neither
clear nor satisfactory in every material respect is not borne out by the record before us.
The cautionary rule should not displace common sense. See S v Sauls 1981 (3) SA 172
(A) at 180E -G. The complainant’s evidence on the critical events of 6 and 7 February
2021 was clear and consistent in every respect material to the indictments . In the face
of rigorous cross-examination, her evidence remained coherent throughout, and it did
not suffer from internal contradictions or defects of any material nature (or effect). In the
circumstances, the magistrate was, understandably so, satisfied that the complainant
told the truth. As such, her evidence was credible and reliable to sustain a conviction for
all.
[68] Save for the appellants’ reliance on inconsistencies with the complainant’s prior
police statement, an issue discussed earlier in this judgment (see paragraphs [42] to
[53] above), I am unable to find any justifiable basis to criticise the magistrate’s rejection
of the appellants’ defence s. Consequently, I find no basis to conclude that the
magistrate misdirected himself by convicting the appellants on the evidence of a single
witness. I am fortified in this view by reason that the complainant clearly and
unequivocally identified the appellants as the perpetrators of the heinous crimes
committed against her.
[69] In casu, there is no dispute that the complainant knew the appellants before 6
February 2021; nor is it disputed that she was acquainted with each of them sufficiently
well to be able to identify them; nor is it argued that this is a case of mistaken identity;
nor is it argued that she could not have made a proper identification due to , amongst
other things, proximity, length of time, lack of opportunity, and/or poor lighting or
visibility. See Moodley and Another v S (475/2023) [2024] ZASCA 102 (20 June 2024)
para 15.
[70] Owing to our courts recognising ‘the fallibility of human observation’ (S v Mthetwa
1972 (3) SA 766 (A) at 768A) , evidence of identification is approached with some
caution. However, this ‘must not be allowed to displace the exercise of common sense’
(R v Bellingham 1955 (2) SA 566 (A) at 569). It is not enough for an identifying witness
to be honest. The reliability of an identification must be tested against other relevant
factors too ( such as , lighting, visibility, proximity of the witness , and opportunity for
observation). See S v Mthetwa supra at 768A - C.
[71] In casu, the complainant was kidnapped and sat in the motor vehicle in between
four of the appellants. Cammy sat in the front seat. The complainant was in very close
proximity to each of the appellants . Thus, she was able to see and identify them. This
continued at Wolfgat. Ricky, Zidane, and Cammy were all on top of the complainant
when they raped her. Pilo and Chucky held the complainant by her feet and hands
respectively. The complainant watched as they all left on the Saturday evening , and
then had ample time and opportunity to observe them again on the Sunday evening
before she was freed.
[72] As regards identification, th e following dictum was endorsed in Arendse v S
(089/2015) [2015] ZASCA 131 (28 September 2015) para 10:
‘one of the factors which in our view is of greatest importance in a case of identification,
is the witness’ previous knowledge of the person sought to be identified. If the witness
knows the person well or has seen him frequently before, the probability th at his
identification will be accurate is substantially increased … In a case where the witness
has known the person previously, questions of identification …, of facial characteristics,
and of clothing are in our view of much less importance than in cases where there was
no previous acquaintance with the person sought to be identified. What is important is to
test the degree of previous knowledge and the opportunity for a correct identification,
having regard to the circumstances in which it was made” .’ (footnotes omitted) (my
emphasis)
[73] In Abdullah v S (134/2021) [2022] ZASCA 33 (31 March 2022) para 13, the SCA
pointed out that when an eyewitness identifies a person known to him, then ‘ it is not a
process of observation that takes place but rather one of recognition. This is a different
cognitive process which plays a vital role in our everyday social interaction. ’ The SCA
went further and held ‘that where a witness knows the person sought to be identified, or
has seen him frequently, the identification is likely to be accurate’ . This is instructive
here.
[74] For all these reasons, I would dismiss the appeal against the appellants’
convictions. I now turn to deal with the appeal against the sentences imposed a quo.
Evaluation of the ground of appeal against sentence
[75] Appellate courts may not usurp the sentencing discretion of a trial court. See S v
Malgas 2001 (2) SA 1222 (SCA) para 12. There are instances where an appellate court
may interfere with a sentence . See Nabolisa v S 2013 (2) SACR 221 (CC) para 22.
Various tests have been formulated to assess if interference may occur. These include,
determining if the reasoning of a trial court is vitia ted by misdirection ; or determining if
the sentence imposed is startlingly inappropriate or induce s a sense of shock ; or
determining whether there is a striking disparity between the sentence imposed and the
sentence the court of appeal would have imposed.
[76] Regardless of which formulation is used, the true objective of the enquiry on
appeal remains constant. The enquiry seeks to assess whether there was a proper and
reasonable exercise of the discretion bestowed upon the court which imposed
sentence. See Kgosimore v S 1999 (2) SACR 238 (SCA) para 10. A trial court either
exercises its sentencing discretion judicially and properly, or it does not. If it does, then
a court of appeal has no power to interfere; if it does not, then interference is justified.
[77] Owing to the applicable test as formulated in the preceding paragraph, the
starting point must be a consideration of the magist rate’s reasons for imposing the
sentences that he did. If his reasons are flawed to the extent that his sentencing
discretion can be said to have been exercised injudiciously, then interference on appeal
would be warranted. If not, then the appeals against each sentence imposed fall to be
dismissed.
[78] The magistrate’s judgment on sentence reveals that he considered the applicable
legal principles pertaining to sentencing an accused. He discussed various well -known
judgments on sentencing, as well as considered the statutory provisions pertaining to
minimum sentences for rape. On appeal before us, there was no suggestion that the
magistrate’s understanding or application of the applicable principles was flawed. The
kernel of the argument is simply that the magistrate exercised his discretion improperly
on the facts, including his decision that none of the appellants showed substantial and
compelling circumstances for purposes of deviating from the minimum sentence regime.
[79] I disagree with the submission that the sentenc es imposed are disproportionate
to the crimes, the criminal, and society’s interests . The punishment imposed fit the
crimes involved and the criminals who perpetrated them. In accordance with S v Malgas
supra para 25, the magistrate considered the traditional Zinn triad (namely, the personal
circumstances of each accused, the nature and gravity of the offences, and the interests
of society ). He then measured the cumulative effect of all relevant aggravating and
mitigating factors against the barometer of substantial and compelling circumstances .
He concluded that a deviation from the ordained prescribed minimum sentence is not
justified in relation to the appellants , or any among them . On the record before us, that
discretion was e xercised judiciously after relevant facts were considered. The
magistrate did not err.
[80] The appellants’ counsel urged us to remember the following sage words by the
apex court in S v Dodo 2001 (3) SA 382 (CC) para 38:
‘Human beings are not commodities to which a price can be attached; they are creatures
with inherent and infinite worth; they ought to be treated as ends in themselves, never
merely as means to an end.’ (footnotes omitted)
It is the appellants who ignored these s entiments and the spirit of humaneness
underlying them. The appellants preyed on the complainant. She was an object used to
satisfy their lust for sex, and to exert the power of a gang over a defenceless woman.
They targeted her while she walked alone down a street at night in her neighbourhood,
a place where she ought to feel safe. See S v Mahomot sa 2002 (2) SACR 435 (SCA)
para 16.
[81] On 6 to 7 February 2021, the appellants treated the complainant with utter
cruelty. After kidnapping her from the street , they drove her to a secluded place in the
bush specifically chosen by them where they could, undisturbed , have their way with
her as they saw fit . At Wolfgat, the complainant was thrown to the ground; stripped
naked; held down with force ; then her dignity, privacy, and bodily integrity was brutally
violated by gang who committed multiple acts of rape. T he complainant screamed, but
to no avail.
[82] To add considerable pain to the psychological injury, the complainant was then
tied to a tree like a dog ; left in the bush overnight , all alone , cold, scared, and without
any food to eat or water to drink. She went hungry for an entire Sunday. The
complainant cried and shouted, but no one heard her s creams. She was traumatised.
On the next evening, her captors returned ; and the nightmare of the previous evening
started all over again. The complainant was raped. She was forced to suck Zidane’s
penis (referred to by her as his ‘thing’) . The other appellants watched her suffer ing and
be degraded for their pleasure.
[83] The circumstances of this case fall squarely within the purv iew of the legislated
minimum sentence regime which should ordinarily be imposed . A minimum sentence
should not be departed from lightly , or for flimsy reasons which cannot withstand
scrutiny. See S v Malgas supra paras 8 -10; S v Dodo supra paras 11 and 40. The trial
court held that there were no factors which constitute substantial and compelling
circumstances that would justify deviating from the legislatively ordained minimum
sentence of life for any of the appellants. This decision is unassailable on the facts of
this case.
[84] The magistrate justifiably held that the aggravating considerations in casu merit a
life sentence . The appellants , acting in concert, did not display an iota of sympathy
towards the complainant. They abused their power over her . They humiliated and
dehumanised her in very gruesome and brutal ways.
[85] The multiple gang rape s suffered by the complainant rank among the worst
category of rape. See S v Mahomotsa supra para 17. To aggravate matters, the rapists
are not strangers. They are men from the complainant’s community whom she trusted.
Therefore, she spoke to Pilo when t he motor vehicle which followed her on a quiet road
late at night stopped beside her. The appellants betrayed the complainant’s trust when
they first kidnapped her, and later raped her.
[86] The appellants were cunning in their approach to the complainant . They
kidnapped her and then took her deep into the bush at Wolfgat. They held her captive
for about 24 hours ; and in appalling conditions . During her captivity, the complainant
suffered multiple rapes. She endured cruel, degrading, and dehumanising treatment.
[87] The complainant fought hard to protect her dignity and bodily integrity from being
violated by a gang. She fought so hard that it took Pilo and Chucky to restrain her. This
enabled the vaginal rapes to occur on 6 February 2021 – first by Ricky; then by Zidane;
and, finally, by Cammy.
Order
[88] In the result, I would make the following order:
“The appeal against the conviction and sentence is dismissed.”
_____________________
F. MOOSA
ACTING JUDGE OF THE HIGH COURT
I agree, and it is so ordered.
_____________________
G. DA SILVA-SALIE
JUDGE OF THE HIGH COURT
Appearances:
For appellants: M Calitz
Instructed by: Legal Aid South Africa, Cape Town Justice Centre
For respondent: EA Kortje
Instructed by: Office of the Director of Public Prosecutions, Cape Town.