1
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Reportable/Not Reportable
Case No: AR335/23
In the matter between:
PHUMLANI NZEKE MNDAWENI APPELLANT
and
THE STATE RESPONDENT
ORDER
On appeal from: Regional Court, Vryheid (Mr L B Phoswa sitting as court of first
instance):
1. The appeal against conviction and sentence is dismissed.
JUDGMENT
Marion AJ (Poyo Dlwati JP concurring):
Introduction
2
[1] This is an appeal against the conviction and sentence of the appellant, who
was convicted of two counts of rape in the Regional Court, Vryheid. The appellant was
sentenced to life imprisonment on each count of rape after the court a quo found no
substantial and compelling circumstances to deviate from the prescribed minimum
sentence contemplated by s 51(1), read with Part 1 of Schedule 2 of the Criminal Law
Amendment Act 105 of 1997 (the CLAA). By virtue of the provisions of s 309(1) (a) of
the Criminal Procedure Act 51 of 1977, the appellant exercised his automatic right of
appeal to challenge both his conviction and sentence. The appellant is represented by
Ms Citera and the State is represented by Mr Sishi.
The facts
[2] The State called five witnesses and the defence called two witnesses. The
complainant was 10 years old at the time of the commission of the offences. The
complainant testified that on 25 October 2011 and 26 October 2011, the appellant,
known to her as Uncle Nzeke, raped her.
Ad count one
[3] On 25 October 2011, at approximately 18h30, the complainant was at the
Mndaweni homestead with her friend, N […]. This homestead is the home of the
appellant. The appellant called the complainant and gave her money to go to the shop
and buy tobacco for him. Upon her return, the appellant called her and told her to bring
the tobacco to him in his bedroom. The appellant was alone in his bedroom and there
was no one in the main house as ‘N […]’ her friend, had exited the house. The
appellant was standing next to the door, closed the door and ordered her to undress.
The complainant refused and the appellant pushed her onto the bed. She fell on the
bed onto her back.
[4] The appellant lowered his pants, removed her skirt and underwear and the
complainant cried. The appellant covered her mouth with his hand and pushed her
thighs apart. The appellant thereafter inserted his penis into her vagina. The
thighs apart. The appellant thereafter inserted his penis into her vagina. The
complainant testified that it was very painful. The appellant made up and down
movements and after some time stopped and told her to dress and go home. At this
stage, there were children present in the kitchen and he made the complainant exit
the house through the bedroom window. Prior to her leaving, the appellant threatened
3
the complainant that if she reported what happened, he would kill her. Upon returning
to her home, she found her grandmother asleep, and she did not report what had
happened to her aunt for fear of being beaten by her.
Ad count two
[5] On 26 October 2011, at approximately 19h00, the complainant was at her
home. N[…] and M[…] came to her home to inform her that the appellant was calling
her. Reluctantly, she went to the appellant’s homestead and found him in his
bedroom. The appellant closed the door and told her to go to the bed. For fear of being
killed, she obliged. The appellant ordered her to lie face down and lowered her jeans
and underwear to her feet. The appellant did the same with his pants and underwear.
The complainant was crying. The appellant got on top of her from behind and inserted
his penis into her anus. The complainant felt pain in her anus. The appellant made up
and down movements and after some time stopped and told the complainant to dress.
[6] As the appellant was trying to get the complainant to exit his house through
the window, the complainant’s friend, Ms N […] S[…] (Ms N[…]) who was standing
outside her home, saw the complainant. The appellant immediately pulled the
complainant back into the bedroom and closed the window. The appellant thereafter
told the complainant to leave his home via the kitchen. Upon her return home, she
was questioned by her grandmother about her whereabouts. The complainant lied to
her and responded that she was coming from S[…]’s home. At the time, Ms M[…]
M[…] S[…] (Ms S[…]), the grandmother of Ms N[…], entered the complainant’s
homestead and questioned her grandmother about the complainant’s whereabouts.
[7] The complainant’s grandmother responded that the complainant had
informed her that she was at S[…]’s homestead. Ms S[...] refuted this and stated that
the complainant was lying as she and Ms N[...] had seen the complainant by the
window at the appellant’s homestead. Her grandmother questioned her as to what she
window at the appellant’s homestead. Her grandmother questioned her as to what she
had been doing there. The complainant was afraid to respond to her grandmother
because the appellant had threatened to kill her. The complainant testified that whilst
exiting the bedroom window, she did want Ms N[...] and Ms S[...] to see her, and she
tried to call out to them, but the appellant pulled her back into the bedroom.
4
[8] Ms S[...] and Ms N[...] corroborated the complainant’s version and each
other. Ms N[...] testified that she saw the complainant moving up and down in the
appellant’s bedroom. Thereafter, she saw the complainant at the window about to
5
jump out. The appellant was standing behind the complainant and she observed the
appellant pulling the complainant back. She could see clearly as the appellant’s
bedroom light was on. Under cross -examination, Ms N[...] confirmed that she saw
the appellant and the complainant clearly as nothing obstructed her view and her
home was close to the appellant’s.
[9] Ms S[...] testified that on 26 October 2011, at approximately 19h00, Ms N[...]
had gone outside to throw away water. She quickly entered the house and asked her
to come and see. Ms S[...] went out to the side of the house where Ms N[...] had
come from and saw the complainant at the appellant’s room wanting to come out of
the window. Ms S[...] stated that she went straight to the complainant’s home and
found the complainant with her grandmother. She further testified that she told the
complainant’s grandmother to enquire from the complainant as to where she had
been. The grandmother responded that she told her that she was coming from her
friend’s house where she went to fetch her exercise book. Ms S[...] told the
grandmother that the complainant should be chastised for lying as she saw her in the
appellant’s room attempting to jump out through the window.
[10] The complainant’s grandmother, Mrs L[…] E[…] J[...] (Mrs J[...]), testified that
on 26 October 2011, at about 19h30, she sent the children to look for the complainant
at the Mndaweni residence. A short while later, the complainant entered and told her
she was at the Sibisi house. Ms S[...] then entered and enquired where the
complainant was coming from. Ms S[...] informed her that she saw the complainant
trying to exit the window of the appellant’s home. Ms S[...] then left. On 27 October
2011, Mrs J[...] requested her neighbour, Mrs I[…] S[…] S[...] (Mrs S[...]) to question
the complainant about the truth of her whereabouts, as when she questioned the
complainant, the complainant only cried. Mrs J[...] was an unsophisticated witness.
complainant, the complainant only cried. Mrs J[...] was an unsophisticated witness.
Mrs S[...] confirmed to Mrs J[...] that the complainant was sexually assaulted by the
appellant. Mrs J[...] reacted by crying.
[11] Mrs S[...] testified that on 27 October 2011, as per the request of Mrs J[...] ,
she questioned the complainant as to what she was doing in the appellant’s room
and climbing out of the window. After some crying, the complainant reported that the
appellant had raped her by putting his penis into her vagina and she was afraid to tell
6
anyone as he had threatened to kill her. Mrs S[...] thereafter reported the rape to the
complainant’s family. The complainant did not report the first incident of rape to her.
The complainant had testified that she did not report to Mrs S[...] about the first
incident of rape nor the details of the second rape as she felt ashamed.
[12] The matter was thereafter reported to the police and statements were taken.
The complainant was also examined by a doctor whose name was not clear from the
record. Although the J88 medico legal report is not part of the record before us, it was
admitted into evidence by consent, and it was common cause at the trial that the
complainant had indeed been sexually penetrated. The doctor had recorded in the J88
form the extent of the complainant’s injuries, including tears in the hymen at three
o’clock and nine o’clock and a discharge. That, in essence, was the state’s case.
[13] The appellant testified that on 25 October 2011, at about 18h30, he was at
home with 12 family members. He denied raping the complainant and stated that her
testimony was all lies. The appellant said that on 26 October 2011, at 19h00, he was
at home with all his family members. He thus placed himself at his home where the
rapes of the complainant took place. He denied raping the complainant or calling for
her. As an afterthought, in his evidence in chief, he testified that Ms N[...] and Mrs
S[...] made the story up to get even with him for refusing to attend to a plastering job.
This was, however, never put to the witnesses. He further testified that the
relationship between the complainant’s family and him was not good, as they
considered him to be poor. He also testified that Ms S[...] was falsely incriminating him,
as for some time, they were not on speaking terms. These statements were never put
to the relevant witnesses. The appellant called Mr Njabulo Mkonsa as a witness, but
he could not recall the events of 25 October 2011.
Analysis
he could not recall the events of 25 October 2011.
Analysis
[14] In this appeal, the appellant contended that the court a quo erred in
convicting him, as the state had not proved beyond reasonable doubt that he had
raped the complainant on both occasions. The appellant submitted that the court a
quo failed to consider the cautionary rules when assessing the evidence of the
complainant as the complainant was a single witness in relation to the two incidents.
7
[15] The appellant in his heads of argument stated that the complainant had
failed to report the rapes and that she had lied to her grandmother. This argument
was also canvassed by Ms Citera during argument. In South African Criminal Law
and Procedure,1 the following is stated:
‘It is not mandatory that there should be evidence that the woman has
complained that she has been raped. However, if she has, such complaint is
admitted in evidence to show consistency and to negative a defence of
consent, but not as proof of their contents nor to corroborate the complainant.
But it is not essential that consent should be in issue; the complainant may,
for instance, be a girl of under 12 years of age.
The purpose of admitting evidence of a complaint is that it serves to rebut any
suspicion that the woman has lied about being raped. The corollary is, of course, that
should a woman not complain, or not complain timeously, the conclusion may be
drawn that she is lying in her evidence that she was raped. The conclusion may well
be unfair to the victim, since women may hesitate to complain of rape for reasons of
shame, embarrassment or fear.’ (Footnotes omitted.)
The appellant’s arguments are baseless in light of the fact that the complainant was
10 years old at the time of these offences and that the appellant had threatened to kill
her if she reported his actions.
[16] In S v Vilakazi, 2 the court stated that ‘reluctance on the part of rape
survivors, or some of them, to report the rape at the first opportunity is a firmly
recognised fact. It is also generally accepted that with young children the reluctance
is compounded’. Mr Sishi correctly pointed out that the complainant respected the
appellant who she considered an ‘uncle’. That would have been the reason that she
returned when called by the appellant to come to his home the next day. It was also
clear from her evidence that she was afraid of the appellant, as he had threatened to
kill her.
[17] In S v Dyira,3 the court held that:
kill her.
[17] In S v Dyira,3 the court held that:
‘The requirement in such a case is, as always, proof of guilt beyond reasonable
1 J R L Milton South African Criminal Law and Procedure - Volume II Common-law crimes 3 ed (1996)
at 461.
2 S v Vilakazi [2016] ZASCA 103; 2016 (2) SACR 365 (SCA) para 19.
3 S v Dyira 2010 (1) SACR 78 (ECG) (Dyira) para 6.
8
doubt, and, to assist the courts in determining whether the onus is discharged,
they have developed a rule of practice that requires the evidence of a single
witness to be approached with special caution (R v Mokoena 1956 (3) SA 81
(A) at 85, 86). This means that the courts must be alive to the danger of
relying on the evidence of only one witness, because it cannot be checked
against other evidence. Similarly, the courts have developed a cautionary rule
which is to be applied to the evidence of small children (R v Manda 1951 (3)
SA 158 (A) at 162E - 163E). The courts should be aware of the danger of
accepting the evidence of a little child because of potential unreliability or
untrustworthiness, as a result of lack of judgment, immaturity, inexperience,
imaginativeness, susceptibility to influence and suggestion, and the beguiling
capacity of a child to convince itself of the truth of a statement which may not
be true or entirely true, particularly where the allegation is of sexual
misconduct, which is normally beyond the experience of small children who
cannot be expected to have an understanding of the physical, social and
moral implications of sexual activity (S v Viveiros [2000] 2 All SA 86 (SCA) para
2). Here, more than one cautionary rule applies to the complainant as a
witness. She is both a single witness and a child witness. In such a case the
court must have proper regard to the danger of an uncritical acceptance of the
evidence of both a single witness and a child witness (Schmidt Law of
Evidence 4-7).’
[18] In my view, the court a quo correctly cited the principles from the applicable
case law relating to both a single witness and a child witness. It was aware of the
dangers of convicting on the evidence of a single witness, as this appears from the
judgment. In Dyira
4 the court stated:
‘In the ordinary course:
(a) a court will articulate the warning in the judgment, and also the reasons
(a) a court will articulate the warning in the judgment, and also the reasons
for the need for caution in general, and with reference to the particular
circumstances of the case;
(b) a court will examine the evidence in order to satisfy itself that the
evidence given by the witness is clear and substantially satisfactory in all
4 Dyira para 10.
9
material respects. Here the delay of 17 weeks in making a complaint must be
regarded as a material defect in the evidence;
(c) although corroboration is not a prerequisite for a conviction, a court will
sometimes, in appropriate circumstances, seek corroboration which implicates
the accused before it will convict beyond reasonable doubt. Here there was
no corroboration;
(d) failing corroboration, a court will look for some feature in the evidence
which gives the implication by a single child witness enough of a hallmark of
trustworthiness to reduce substantially the risk of a wrong reliance upon her
evidence (S v Artman 1968 (3) SA 339 (A) at 340H). This is the route which
the State must take to support this conviction.’
Holmes JA went on to say in S v Artman and Another that ‘the exercise of
caution must not be allowed to displace the exercise of common sense’
5
[19] In most rape and sexual assault cases, the complainant is a single witness.
In Stevens v S6 the court stated:
‘In terms of section 208 of the Criminal Procedure Act 51 of 1977, an accused
can be convicted of any offence on the single evidence of any competent
witness. It is, however, a well - established judicial practice that the evidence
of a single witness should be approached with caution, his or her merits as a
witness being weighed against factors which militate against his or her
credibility.’
In the present case, the court a quo correctly found that the complainant answered all
the questions put to her without hesitation and with ease. In my view, she was an
honest and reliable witness.
[20] Corroboration in matters like these is not a strict requirement. However, in
casu the complainant’s version is corroborated in material respects by Ms N[...] and
Mrs S[...]. I am of the view that the complainant testified in a satisfactory manner in
all material respects. The court a quo correctly found that the cautionary rule was
applicable in assessing the complainant’s and Ms N[...]’s evidence. The court a quo
applicable in assessing the complainant’s and Ms N[...]’s evidence. The court a quo
carefully scrutinised the complainant’s evidence which was given in detail. The
5 S v Artman and Another 1968 (3) SA 339 (A) at 341C-D.
6 Stevens v S [2005] 1 All SA 1 (SCA) para 17.
10
complainant’s evidence in respect of the incident on 26 October 2011 was further
corroborated by Ms N[...] and Ms S[...], who saw the complainant attempting to exit
the appellant’s bedroom through the window. The evidence of the first report, Ms
S[...], was honest and reliable. She answered all questions in a satisfactory manner.
The injuries on the J88 form further corroborated the complainant’s evidence of being
raped.
[21] The evidence tendered by the defence witness, Mr Mkonsa, did not assist
the appellant in any way. The appellant’s version was far -fetched, made up and was
correctly rejected as false. Having regard to the totality of the evidence, I am of the
view that the court a quo correctly rejected the appellant’s version. The appeal against
conviction on counts 1 and 2 must accordingly fail.
Ad sentence
[22] The appellant submitted that the court a quo erred in finding that no
substantial and compelling circumstances existed to impose a lesser sentence than
the minimum prescribed by the legislature. The appellant further submitted that the
court a quo ought to have placed greater emphasis on the following facts namely,
that the appellant was a 42- year-old first offender, he had no history of violence, he
did odd jobs earning the sum of R750 every two weeks, and that he had spent 19
months in custody awaiting finalisation of his trial. Ms Citera argued that the
appellant’s previous conviction in 2005 for abuse of dependence-producing
substance was unrelated. She submitted that the court a quo failed to attach due
weight to the appellant’s personal circumstances. In the appellant’s heads of
argument, it was argued that the fact that the appellant spent 19 months awaiting
trial, taken together with his personal circumstances, constituted substantial and
compelling circumstances to deviate from the minimum sentence.
[23] The respondent argued that the court a quo had carefully considered the
[23] The respondent argued that the court a quo had carefully considered the
appellant’s personal circumstances. Mr Sishi also contended that the time spent in
custody is not a factor to be regarded as substantial and compelling for a court to
11
deviate from the minimum sentence. He referred the court to S v Ludidi and Others ,7
where the court stated:
‘A court cannot approach a life sentence as anything other than a sentence
which is imposed for the rest of that person’s life. It cannot be “reduced” by the
period spent in custody awaiting trial and it would be improper for a court to
take into account the possibility of parole.’ (Footnote omitted.)
Mr Sishi argued that the court a quo correctly found that there were no factors before
it to justify a departure from the prescribed minimum sentence.
[24] Section 51(1) of the CLAA requires a prescribed sentence of life
imprisonment to be imposed for a conviction of rape where the complainant is raped
more than once or where the complainant is a child under the age of 16 years,8
unless in terms of s 51(3)(a)of the CLAA, substantial and compelling circumstances
exist that justify a lesser sentence. The complainant in this matter was 10 years old
and raped on two occasions.
[25] Malgas v S 9 is the locus classicus of what constitutes substantial and
compelling circumstances warranting a deviation from the prescribed minimum
sentence. The court stated the following:
‘If the sentencing court on consideration of the circumstances of the particular
case is satisfied that they render the prescribed sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of society,
so that an injustice would be done by imposing that sentence, it is entitled to
impose a lesser sentence.’
[26] In Malgas,10 the court further stated:
‘[8] … a court was not to be given a clean slate on which to inscribe whatever
sentence it thought fit. Instead, it was required to approach that question
conscious of the fact that the legislature has ordained life imprisonment or the
particular prescribed period of imprisonment as the sentence which should
7 S v Ludidi and Others [2024] ZASCA 162; 2025 (1) SACR 225 (SCA) para 14.
7 S v Ludidi and Others [2024] ZASCA 162; 2025 (1) SACR 225 (SCA) para 14.
8 This was the stated age in the CLAA at the time when the offence was committed. The age has now
been increased to 18 years following amendments by the Criminal and Related Matters Amendment
Act 12 of 2021.
9 Malgas v S [2001] 3 All SA 220 (A) (Malgas) para 25.
10 Malgas paras 8 and 9.
12
ordinarily be imposed for the commission of the listed crimes in the specified
circumstances. In short, the legislature aimed at ensuring a severe,
standardised, and consistent response from the courts to the commission of
such crimes unless there were, and could be seen to be, truly convincing
reasons for a different response. When considering sentence, the emphasis
was to be shifted to the objective gravity of the type of crime and the public’s
need for effective sanctions against it...
[9] …The specified sentences were not to be departed from lightly and for flimsy
reasons which could not withstand scrutiny. Speculative hypotheses
favourable to the offender, maudlin sympathy, aversion to imprisoning first
offenders, personal doubts as to the efficacy of the policy implicit in the
amending legislation, and like considerations were equally obviously not
intended to qualify as substantial and compelling circumstances. Nor were
marginal differences in the personal circumstances or degrees of participation
of co- offenders which, but for the provisions, might have justified
differentiating between them. But for the rest I can see no warrant for deducing
that the legislature intended a court to exclude from consideration, ante omnia
as it were, any or all of the many factors traditionally and rightly taken into
account by courts when sentencing offenders.’
[27] It is trite that a court of appeal can only interfere with a sentence handed
down by the court a quo, if there was a material misdirection by the trial court or if
the sentence was shocking or disturbingly inappropriate.
11
[28] In S v Jansen,12 the court stated the following:
‘Rape of a child is an appalling and perverse abuse of male power. It strikes a
blow at the very core of our claim to be a civilised society. . . It is utterly
terrifying that we live in a society where children cannot play in the streets in
any safety; where children are unable to grow up in the kind of climate which
any safety; where children are unable to grow up in the kind of climate which
they should be able to demand in any decent society, namely in freedom and
without fear. In short, our children must be able to develop their lives in an
atmosphere which behoves any society which aspires to be an open and
11 Malgas para 12.
12 S v Jansen 1999 (2) SACR 368 (C) at 378g-379b.
13
democratic one based on freedom, dignity and equality, the very touchstones
of our Constitution.’
In this case, the complainant was 10 years old, and the appellant was someone she
respected and looked up to as an ‘uncle’. The appellant took advantage of his position
when he raped the complainant twice, and this was an aggravating factor.
[29] I can find no reason to interfere with the sentence imposed by the court a
quo as there is no misdirection on its part. I am of the view that the time spent by the
appellant awaiting trial is not a substantial and compelling circumstance to allow the
court to deviate from the prescribed minimum sentence. The prescribed minimum
sentence imposed in this case does not result in an injustice to the appellant. The
sentence of life imprisonment in the circumstances of this case is not ‘shocking’,
‘startling’ or ‘disturbingly inappropriate’. The court a quo further fulfilled the objectives
of sentencing namely, retribution, deterrence, prevention and rehabilitation in its
evaluation on sentence. This type of sentence will prevent and deter the appellant from
committing such an offence again and will send a clear message to all like -minded
people wanting to commit offences like these against children.
Order
[30] In the result:
1. The appeal against conviction and sentence is dismissed.
MARION AJ
POYO DLWATI JP
Date of Hearing: 15 August 2025
Judgment: 22 August 2025 Appearance:
Applicant: Ms TM Citera
Instructed by: Legal Aid South Africa
Pietermaritzburg
Respondent: Mr M Sishi
14
Instructed by: Director of Public Prosecutions Pietermaritzburg