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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: A269/18
DATE: 27-08-2024
DATE 08 October 2025
In the matter between
PATRIC K SIPHO THWANE Applicant
and
THE STATE Respondent
EX TEMPORE JUDGMENT
KUNY , J
: This is judgment in the matter of Patrick Sipho
Thwane versus the state. The judgment will be delivered in
paragraph format.
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) REVISED AND CORRECTED
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[1] The appellant, Patrick Sipho Thwane, was charged in
the Regional Court of Pretoria with contravening
Section 3 of the Criminal Law (Sexual Offences and
Related Matters) Act 32 of 2007, as amended (read
with related provisions), and Section 51, Schedule 2,
Part 1, of Act 105 of 1997.
[2] The State alleged that during or about June 2015 at
or near Windmill Park, Gauteng, the appellant,
unlawfully and intentionally committed an act of
sexual penetration with the c omplainant, G […] M[…],
by inserting his penis in her vagina without the her
consent. The state alleged that the minimum
sentencing provisions apply because the complainant
was nine years old at the time the alleged rape was
committed.
[3] The proceedings were held in camera. On 17 October
2017, the appellant pleaded not guilty. He was
convicted on 5 April 2018 as charged, and on 13 April
2018, he was sentenced to life imprisonment. The
appellant was legally represented throughout the
proceedings. He appeals against his conviction and
sentence.
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[4] The following witnesses gave evidence. G […] M[…],
the complainant, a minor, who testified through an
intermediary via CCTV using the court's TV system.
She was nine years of age at the time the alleged
offence was committed.
[4.2] N[...]
N[...] K[…], a minor who testified via an
intermediary.
[4.3] J[…] M[…], the mother of the complainant.
[4.4] E[…] N[…], the complainant's aunt.
[4.5] Ms Mokwena, a nurse who examined the
complainant and who gave evidence in relation to
the J88 medical form.
[4.6] Thuli Ma shele.
[4.7] The appellant testified in his defence.
[5] The alleged rape was described by the complainant
in her evidence in the following terms :
[5.1] In June 2015, she was playing with her friends
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in the evening in the ve ld near to her parents'
house.
[5.2] She saw another child by the name of D […]
sitting around a fire near the place where they
were playing. Whilst sitting with other children,
the appellant arrived. He was familiar to her
because she had seen him around the area
where she lived.
[5.3] The complainant went with the appellant into
the bush on the promise of the receipt of R2 .
They were near the fire and also to houses in
the vicinity.
[5.4] The appellant instructed her to undress. He
took off her panties. She did not remove her
whole dress. He took off his trousers and
underwear.
[5.5] The complainant took his penis and put it in her
vagina. She used the following words to
describe the act of sexual penetration - “He
took his peepee, and put it inside my cookie.”
She then testified that he was “ bumping” on top
of her. After that, the appellant put on his
clothes and left. She also collected her clothes
and left.
[5.6] The complainant did not see her friend N[...]
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after she came out of the bushes after the rape
had taken place.
[5.7] The complainant did not tell anybody about the
incident. However, upon inquiry from Thul i, the
complainant told her that the appellant raped
her.
[5.8] The complainant entered the courtroom and
identified the appellant as the person who
raped her. During cross -examination, she said
she was scared to tell her mother for fear of
being beaten.
[6] Nkwondo Keso testified about an incident that
happened in June 2015:
[6.1] They were all sitting around the fire with other
children. She could not remember the exact
time, but it was already getting dark when they
were seated there.
[6.2] The appellant was amongst them. When the
complainant went to fetch firewood, the
appellant then followed her and made as if he
was going to the Bangladesh shops. At that
stage, she and others went home, and she did
not see the complainant and the appellant when
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they came back.
[6.3] Keso knew the appellant and would see him
often. The appellant is also familiar with her
from her parental home. The following day,
Keso was visiting a friend when she came
across the appellant and a person by the name
of Simpeh le. She greeted them and was about
to pass when the appellant stopped her and
told her that he had “messed up” , and that he
had raped the complainant. Keso testified she
did not believe him and she told him he was
lying. The appellant said he was not lying, and
told her to ask Simpeh le. The latter person
confirmed that the appellant was speaking the
truth.
[6.4] The following day, she spoke to the
complainant about the incident. Initially, the
complainant kept quiet , and when she asked
the complainant a second time, the complainant
confirmed that the appellant had raped her .
[6.5] The complainant informed her that she was
scared to tell her mother for fear of getting a
hiding.
[6.6] Keso reported the incident to the complainant's
mother that evening. However, the mother
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ignored her and she left. She confirmed that
the following day , the children were singing at
the complainant's gate a song with the words
“what you are doing is not good” . She was sent
to buy bread and she came across Thul i to
whom she reported the rape of the complainant.
[7] Nurse Mokwena gave evidence that she examined
the complainant in July 2015. She established from
an internal examination that the complainant had
scar tissue in her vagina at 9 o'clock , a nd she
confirmed that this was a result of vaginal
penetration with a blunt object.
[8] The appellant testified as follows :
[8.1] He confirmed that he knew the complainant as
he used to see her around play ing .
[8.2] He denied that he at any stage told
N[...] or
admitted to N[...] that he raped the
complainant.
[8.3] He confirmed that a meeting was held where
the allegation was brought up. He was asked if
he knew about the problem. He responded that
he had heard of the allegations but he denied
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them. He confirmed that the complainant
pointed him out as the person who raped her
and that he was passing by Thul i's house when
the children were singing.
[8.4] Under cross -examination, he testified that he
knew about the other children who were playing
with
N[...] , a nd he also knew about the fire
where these children s at near the v el d around
June. He used to go there. However, after the
allegations surfaced, he stopped going there.
He had no bad blood with the complainant or
N[...] .
[8.5] He could not say why the complainant pointed
him out as the person who raped her.
Alleged contradictions in the state's evidence
[9] Coun se l for the appellant in argument relied heavily
on submissions that there were contradictions in the
evidence of the complainant
N[...] . On this basis , he
submitted that the court could not rely on their
evidence. The contradictions were said to be the
following :
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[9.1] The complainant did not mention that N[...] was
present on the day of the alleged rape.
[9.2] The complainant testified that N[...] saw the
appellant raping her. However, N[...] testified
that she did not see the alleged rape.
[9.3] It was submitted that the complainant's
evidence was contradicted by the evidence of
Thul i Ma shele, who testified that N[...] told her
that she ( N[...]) had witnessed the rape.
[9.4] N[...] testified that the appellant had informed
her of the rape. However, this aspect of N[...] 's
testimony was not confirmed by the
complainant.
[10] A close analysis of the evidence shows that these
so -called contradictions were in fact more apparent
than real :
[10.1] The complainant did not , in her evidence,
exclude the presence of N[...] at the fire she
sat around with the other children.
[10.2] She testified that X[…], F […] and N […] had
departed after they had played together, not
after they had been sitting around the fire.
[10.3] The complainant's testimony that
N[...] saw her
being raped implies that N[...] was also sitting
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around the fire or was in the near vicinity when
the appellant took the complainant into the
bushes. This confirms N[...] 's evidence that she
was present at the time that the appellant took
the complainant into the bushes.
[10.4] The complainant's evidence that she did not
see
N[...] when she came out of the bushes
suggests that she was there before she went
into the bushes. This again is consistent with
N[...] 's evidence that she was present when the
complainant left the fire with the appellant and
that she had not seen the complainant return
because she had already gone home.
[11] The discrepancy in the evidence of the complainant ,
who said that
N[...] had seen the rape, and N[...] 's
testimony that she had not witnessed the rape, in my
view, is not material. N[...] 's testimony substantially
corroborated the evidence of the complainant in
relation to the fact that the appellant had been sitting
around the fire and had taken the complainant into
the bushes. It also corroborated the complainant's
evidence in relation to the complainant's subsequent
report that the appellant had raped her. Finally, the
appellant's admission to
N[...] that he had messed up
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by raping the complainant corroborated the
complainant's evidence as regards the rape.
[12] A further issue taken by the appellant was that the
complainant testified that she had reported the
incident five days after it happened. The medical
report showed that the scars had healed. Nurse
Mokwena, who examined the complainant , testified
that injuries caused by forced penetration take
between 7 and 21 days to heal. On this basis , it was
argued that the evidence of the complainant could not
be relied upon.
[13] The complainant testified that she told Thuli about
the rape five days after it happened. Thuli testified
that after the report, she discussed the matter with
the complainant's mother. The complainant was first
taken to the clinic. E[…] testified that after they
returned from the clinic, they called the appellant's
mother and informed her of the allegations against
her son. At that stage, the complainant pointed out
the appellant as having been the person who raped
her. The appellant's mother gave them R100 to take
the complainant to the hospital the following morning.
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[14] The evidence was that the complainant was taken to
the OR Tambo Memorial Hospital and then to Bertha
Go xowa Hospital in Germiston, where the complainant
was examined by Nurse Mokwena on 5 July 2015.
[15] The evidence shows that there would have been a
delay of at least a day from the time when the
complainant first made her report until she was
examined by Nurse Mokwena. It is reasonably
possible that by the time the complainant was
examined, the injuries she had sustained had healed
sufficiently for them to be noted as clefts. It is also
quite conceivable that a young child giving evidence
in relation to time may not have been accurate in her
estimate. In my view, the complainant's time estimate
falls well within the parameters of the medical
evidence led by the state, and there is no substance
in the argument that the evidence as to time
discredited the complainant's evidence.
[16] As has been pointed out in many cases,
contradictions per se do not lead to the rejection of a
witness's evidence. They may be simply indicative of
an error, and not every error made by a witness
affects his or her credibility. See S v Mkohle 1990
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(1) SACR 95 (SCA).
[17] There were two material contradictions between the
evidence given by the appellant and the version that
was put to the state witnesses. First, it was put to
N[...] that the appellant would deny sitting around the
fire because he was not friendly with her. In his
evidence , he admitted sitting around the fire because
it was not far from his place. Secondly, it was put to
Thuli that the appellant denied that the girls were
singing a song when he passed by. In his evidence
the appellant admitted that the children were singing
when he passed by the gate. He, however, testified
that he did not know what message they were driving
home. It is true that there is no onus on the appellant
to prove his defence. He is entitled to an acquittal if
the evidence that he gives is reasonably possibly
true.
[18] The court must also take into consideration that the
complainant is a young child who is a single witness
insofar as the actual rape was concerned. However, I
am satisfied that the magistrate took all of this into
account when he weighed up the evidence. The
appellant conceded that there was no animosity
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between him and the complainant and N[...] , and he
could offer no reason why they would falsely
implicate him. In my view, therefore, he was correctly
convicted of the charges against him.
SENTENCE
[19] In mitigation of sentence, the appellant's legal
representative submitted that the appellant was 22
years of age. This was in 2018, some three years
after the rape. The court accepted that this was his
age. A ccordingly , he would have been approximately
19 years of age at the time of the rape.
[20] No pre- sentencing report was called for in respect of
the appellant. A short victim impact statement dated
21 April 2017 was produced in respect of the
complainant. However, no full victim impact report
was produced after the appellant had been convicted.
[21] Our courts have repeatedly emphasi sed the need for
pre- sentencing reports in the case of young
offenders. See, for example, S v M and Another 2005
(1) SACR 481 (E), Ravele v S (20079/ 14) [2014]
ZASCA 118 (19 September 2014) , S v Siebert
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(214/1996) [1996] ZASCA 135 (27 November 1996) , S
v Matyityi 2011 (1) SACR 40 (SCA) , S v Manka 2003
(2) SACR 515 (O), S v Gagu and Another 2006 (1)
SACR 547 (SCA) , S v Phulwane and Others 2003 (1)
SACR 631 (T.
[22] The Criminal Law Amendment Act , 105 of 1997
requires the court to impose a life sentence if no
substantial and compelling circumstances warrant a
lesser sentence. In these circumstances, when
dealing with a young offender, it was essential that a
pre- sentencing report be obtained, even if it was not
called for by the defence. In my view, there was a
material misdirection in not obtaining this report. The
age of the appellant should also have been
independently verified. It would also have been
appropriate for the court to obtain a victim impact
report comprising a more detailed investigation
conducted by a social worker pertaining to the
physical and psychological effects of the rape upon
the complainant.
[23] Accordingly, I am of the view that this court is at
liberty to and should interfere with the sentence
imposed upon the appellant. However, this can only
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be done once proper sentencing reports are obtained.
In my view, no purpose would be served by referring
the matter back to the M agistrate's Court for such
reports to be obtained. This court has the power to
call for the reports needed to impose an appropriate
sentence. In the circumstances, I make the following
order :
1. The conviction of the appellant is confirmed.
2. The appeal on sentence is postponed sine d ie .
3. The court directs the following reports shall be
obtained :
3. 1 A victim impact assessment report in
respect of the complainant, G […] M[…].
3.2 A sentencing report from a probation
officer /social worker in relation to the re-
sentencing of the appellant.
4 Once the aforesaid reports have been obtained,
the registrar is directed to set the appeal down
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for further consideration.
5 Pending the reconsideration of the ap pellant's
sentence, he shall remain in detention as a
sentenced prisoner.
…………………………
KUNY J
JUDGE OF THE HIGH COURT
GAUTENG HIGH COURT
MATHUNZI, AJ : I agree.
PP
…………………………
MATHUNZI, AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION
Judgment delivered in open court on 27 August 2024
Judgment corrected and signed on 08 October 2025