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: AR409/23
In the matter between:
VINCENT NDODO NDLOVU APPELLANT
and
THE STATE RESPONDENT
ORDER
On appeal from : Regional Court, Ulundi (Mr M E Xolo sitting as court of first
instance):
The appeal against sentence and conviction is dismissed.
JUDGMENT
Marion AJ (Nkosi AJP concurring):
Introduction
2
[1] This is an appeal against the conviction and sentence of the appellant who
was convicted of one (1) count of rape in the Regional Court Ulundi, by the learned
magistrate, Mr ME Xolo. The appellant was sentenced to life imprisonment after the
trial court 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 CLA A). By virtue of the
provisions of s 309(1) (a) of the Criminal Procedure Act 51 of 1977 (the CPA), 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
Ms Mlondo. The complainant, Ms TNN , was 1 0 years old at the time of the
commission of the offence. The appellant pleaded not guilty and raised an alibi
defence. His version was that he was at work on the day of the incident and
therefore could not have raped the complainant. The appellant was the uncle of the
complainant, being her mother’s brother whom she referred to as uncle ‘Ndodo’. The
appellant, the complainant’s mother and the complainant once stayed together in the
same homestead. In June 2013 the complainant and her mother moved out of that
homestead.
The evidence
[2] On 2 August 2013, before 8.00 am, the complainant was on her way to school
with her youngest sister. She took the foot path that she always used. At some stage
along the way, her sister waited for her friends whilst the complainant continued to
walk to school. As the complainant passed a stream in a bushy area, she bent down
to pull up her socks. The appellant grabbed her from behind and pulled her out of the
footpath to a concealed spot. He made her lie down on her back and pulled up her
tunic dress. He re moved her underwear and undressed himself by removing his
trouser and underwear. The appellant thereafter raped the complainant penetrating
trouser and underwear. The appellant thereafter raped the complainant penetrating
her vagina with his penis. After he finished, he left the complainant at the scene. The
complainant dressed up and went to school. The complainant testified that the rape
was painful, and she cried. At school the complainant was uneasy because of what
had happened however, she did not report the incident to anyone. She felt ashamed.
[3] After school, she reported the incident to her mother . However, it transpired
that her mother did not hear her and sent her to call L[...]. Soon after the incident the
3
complainant experienced pain in her private parts and could not w alk properly. She
also fell ill with the flu. Due to being ill in school , she was taken to the local clinic.
Nurse Jeffrey Vilakazi treated the complainant and testified that she was brought to
the clinic by her teacher, Ms Gumede. The complainant informed the nurse that her
vagina was painful and thereafter disclosed that her uncle had raped her on Friday.
The matter was reported to the police and the complainant’s mother testified that she
only found out about the rape when the police brought h er home on 7 August 2013.
The complainant at that stage confirmed to her mother that the appellant had raped
her. The complainant was thereafter taken to the Nkonjeni Hospital to be examined.
[4] The complainant was examined by Dr Mhlongo. The J88 was handed in by
consent. Under ‘History’ the doctor noted that the complainant had notified him that
she was raped by her uncle on 2 August 2013.The doctor’s findings recorded vaginal
tears at 6 o’ clock and 9 o’ clock. There were no signs of bleeding.
[5] The appellant testified in his defenc e and called his sister, Ms Thabisile
Dladla, as a witness. T he State objected to her evidence on the basis that it was
hearsay evidence. The magistrate ruled that her evidence was hearsay and
inadmissible. The magistrate did not attach any weight to Ms Dladla’s evidence when
evaluating the evidence. The appellant denied that he raped the complainant and
insisted that he was at work on the day in question. He denied that he met the
complainant on the morning of 2 August 2013. The appellant was unable to give
details of what transpired on the day of the rape aside from testifying about what he
usually did commuting to and from work. At the time of the incident the appellant was
employed as a casual worker for a contractor building government toilets. He had
been employed for a period of two months prior to the incident for that contractor.
been employed for a period of two months prior to the incident for that contractor.
The appellant normally left home at 6.00 am and would travel either by motor vehicle
or on foot to work. If he worked in the local area he would walk to work. He would
travel by motor vehicle if he was summoned to work outside the area. The appellant
did not recall the name of the driver of the motor vehicle t hat came to fetch him and
take him to work.
Ad conviction
4
[6] The appellant disputed the issue of identity. Ms Citera argued that the
complainant was accosted from behind and this would have made it difficult to see
her perpetrator. Counsel for the appellant argued that the learned magistrate failed
to consider the cautionary rules when assessing the evidence of the complainant.
The complainant was a single witness in relation to the rape. The appellant stated
that the complainant’s failure to report the rape timeously was also an issue that
needed to be addressed. 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.
[7] Counsel for the respondent argued that the court a quo had not misdirected
itself. She stated that in terms of s 208 of the CPA an accused person may be
convicted on the evidence of a single competent witness. She further submitted that
the court a quo gave a detailed and well -reasoned judgment wherein the magistrate
analysed the evidence of the complainant and was alive to the fact that the
cautionary rule had to be applied. Ms Mlondo argued that the allegation of rape was
supported by the findings recorded in the J88. She further stated that both the
complainant and her mother testified that on the date of the incident L[...] was called.
Hence giving credence to the version that the complainant did report to her mother ,
who did not hear her. The complainant subsequently reported the rape to Jeffrey
Vilakazi, the nurse at the local clinic. She further submitted that the period between
the rape and reporting did not negate prosecution against a perpetrator.
The law
[8] Milton,1 in South African Criminal Law and Procedure, wrote:
‘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
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
1 J R L Milton South African Criminal Law and Procedure: Volume II Common-law Crimes 3 ed (1996)
at 461.
5
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.)
[9] Section 58 of the CLAA provides for ‘Evidence of previous consistent
statements, and states:
‘Evidence relating to previous consistent statements by a complainant shall be admissible in
criminal proceedings involving the alleged commission of a sexual offence: Provided that the
court may not draw any inference only from the absence of such previous consistent
statements.’
[10] Section 59 of the CLAA is titled ‘Evidence of delay in reporting, and provides
that:
‘In criminal proceedings involving the alleged commission of a sexual offence, the court may
not draw any inference only from the length of any delay between the alleged commission of
such offence and the reporting thereof.’
[11] In Monageng v S,2 Maya JA stated
‘It is further widely accepted that there are many factors which may inhibit a rape victim from
disclosing the assault immediately. Children who have been sexually abused, especially by a
family member, often do not disclose their abuse and those who ultimately do may wait for
long periods and even until adulthood for fear of retribution, feelings of complicity,
embarrassment, guilt, shame and other social and familial consequences of disclosure.
. . .
Raising a hue and cry and collapsing in a trembling and sobbing heap is not the benchmark
for determining whether or not a woman has been raped. There was thus nothing unusual
about the complainant’s behaviour and her explanation for not immediately reporting the
appellant is plausible.’
[12] In S v Vilakazi3 the court stated that there is a ‘reluctance on the part of rape
survivors, or some of them, to report the rape at the first opportunity is a firmly
2 Monageng v S [2008] ZASCA 129; [2009] 1 All SA 237 (SCA) para 24.
2 Monageng v S [2008] ZASCA 129; [2009] 1 All SA 237 (SCA) para 24.
3 S v Vilakazi [2016] ZASCA 103; 2016 (2) SACR 365 (SCA) para 19.
6
recognised fact. It is also generally accepted that with young children the reluctance
is compounded.’
[13] In assessing the applicability of the cautionary rule , the Supreme Court of
Appeal in Maila v S,4 in referring with approval to Woji v Santam Insurance Co Ltd ,5
in terms of its discussion on s 208 of the CPA stated
‘[17] . . . To ensure that the evidence of a child witness can be relied upon as provided in
s 208 of the CPA, this Court stated in Woji v Santam Insurance Co Ltd , that a court must be
satisfied that their evidence is trustworthy. It noted factors which courts must take into
account to come to the conclusion that the evidence is trustworthy, without creating a closed
list. In this regard, the court held:
“Trustworthiness . . . depends on factors such as the child’s power of observation, his
power of recollection, and his power of narration on the specific matter to be testified.
. . . His capacity of observation will depend on whether he appears “intelligent
enough to observe”. Whether he has the capacity of recollection will depend again on
whether he has sufficient years of discretion “to remember what occurs” while
the capacity of narration or communication raises the question whether the child has
the “capacity to understand the questions put, and to frame and express intelligent
answers.”’ (Emphasis added.)
[18] This Court has, since Woji, cautioned against what is now commonly known as the
double cautionary rule. It has stated that the double cautionary rule should not be used to
disadvantage a child witness on that basis alone. The evidence of a child witness must be
considered as a whole, taking into account all the evidence. This means that, at the end of
the case, the single child witness’s evidence, tested through (in most cases, rigorous) cross -
examination, should be ‘trustworthy’. This is dependent on whether the child witness could
narrate their story and communicate appropriately, could answer questions posed and then
narrate their story and communicate appropriately, could answer questions posed and then
frame and express intelligent answers. Furthermore, the child witness’s evidence must not
have changed dramatically, the essence of their allegations should still stand. Once this is
the case, a court is bound to accept the evidence as satisfactory in all respects; having
considered it against that of an accused person. ‘Satisfactory in all respects’ should not
mean the evidence line -by-line. But, in the overall scheme of things, accepting the
discrepancies that may have crept in, the evidence can be relied upon to decide upon the
guilt of an accused person.’ (Emphasis in original.)
4 Maila v S [2023] ZASCA 3 (Maila).
5 Woji v Santam Insurance Co Ltd 1981 (1) SA 1020 (A) at 1028B-D.
7
Analysis
[14] The only issue in dispute was the identity of the person who raped the
complainant. It was common cause the complainant was raped. The medical
evidence of Dr Mhlongo as recorded in the J88 , corroborates the evidence of the
complainant in respect to the rape. In respect of the aspect of identity, the
complainant was clear in identifying the appellant as the perpetrator , as she knew
him well and had previously lived with him. Although she was initially accosted from
the back, he had made her lie down on the ground and she would have had ample
opportunity to clearly identify him . It was broad daylight and the appellant’s face was
uncovered. 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 evidence. The court a quo carefully scrutinised her
evidence which was given in detail. The appellant’s alibi defence was weak although
I accept that there is no onus on him to prove his innocence. He was, however, a
poor witness.
[15] In my view, the court a quo correctly cited the principles from the applicable
case law relating to both a single witness and child witness. The learned magistrate
was aware of the dangers of convicting on the evidence of a single witness, as this
appears from his judgment. In the case of S v Dyira,6 in reference to S v Artman ,7
the court stated:
‘In the ordinary course:
(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 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
(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;
6 S v Dyira 2010 (1) SACR 78 (ECG) para 10.
7 S v Artman and Another 1968 (3) SA 339 (A) (Artman).
8
(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 Artman that ‘the exercise of caution must not be
allowed to displace the exercise of common sense’.8
[16] In most rape and sexual assault cases the complainant is a single witness. In
Stevens v S9 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 ease. In my view, she was an
honest and reliable witness. I find that the evidence of the complainant is trustworthy
and, thus, satisfactory beyond reasonable doubt.
[17] Corroboration in matters like these is not a strict requirement. However, in
casu the complainant’s version is corroborated in material respects by her mother,
Jeffrey Vilakazi and the J88. The appellant’s version of being at work was made up
and must be 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 must accordingly fail.
Ad sentence
[18] The appellant submitted that the court a quo erred in finding that no
substantial and compelling circumstances existed to impose a lesser sentence than
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,
8 Artman at 341C-D.
9 Stevens v S [2005] 1 All SA 1 (SCA) para 17.
9
that the appellant was a 39-year-old first offender, his highest level of education was
grade 5, he was employed as a contract worker and earned an income of R1 500 per
month. The appellant supported his family, including his two nieces. The appellant
submitted that the sentence of the court a quo was disproportionate to the
circumstances. In the appellant’s head of argument, it was argued that there are
degrees of seriousness in rape cases, and this was not the worst rape case.
[19] The respondent argued that the learned magistrate had carefully considered
the appellant’s personal circumstances. Ms Mlondo stated that the court a quo
correctly found that there were no factors before it to justify a departure from the
prescribed minimum sentence. She argued that there was no misdirection by the
court a quo in sentencing the appellant to life imprisonment.
[20] Section 51(1) of the CLAA requires a minimum prescribed sentence of life
imprisonment to be imposed for a conviction of rape include where the complainant
is raped more than once or where the complainant is a child under the age of 18
years, unless in terms of s 51(3) (a), substantial and compelling circumstances exist
that justify a lesser sentence. The complainant in this matter was 10 years old and
raped by her uncle, someone she would have trusted and in a position of authority
over her.
[21] S v Malgas 10 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.’
[22] In Malgas11 the court further stated:
[22] In Malgas11 the court further stated:
10 S v Malgas 2001 (1) SACR 469 (SCA) (Malgas) para.
11 Malgas para 8 and 9.
10
‘[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 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.’
[23] 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.12
[24] In S v Jansen13 the court stated the following:
[24] In S v Jansen13 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 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 A aspires to be an open and democratic
one based on freedom, dignity and equality, the very touchstones of our Constitution.’
12 Malgas para 12.
13 S v Jansen 1999 (2) SACR 368 (C) at 378G-379B.
11
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, and this was an aggravating factor.
[25] With regards to the argument requiring the court to consider that there are
differing degrees of rape, the following cases are important to note: i n Khoza v S 14
the court stated the following:
‘the submission that there are degrees of rape ignores that rape in itself is a most
heinous act that equates with the most debasing and invasive attacks on a person's
bodily integrity and mental wellbeing. Worst still with child rape.’
[26] Khampepe J in a concurring judgment in S v Tshabalala and Another 15
emphasised that:
‘Words matter. Words give a construction of a certain viewpoint of the world, and this
viewpoint tends to be gendered. Although rape is defined as an unlawful and intentional act
of sexual penetration of one person by another, without consent, it must be buttressed that
the victim does not experience rape as being sexual at all. The requirement of sexual
penetration is a legal requirement which relates to the biological element of sexual
intercourse. For many victims and survivors of rape, they “do not experience rape as a
sexual encounter but as a frightening, life -threatening attack” and “as a moment of immense
powerlessness and degradation.”’ (Footnotes omitted.)
[24] In response hereto the court in Leburu v S16 stated the following:
‘Having regard to the sentiments expressed by Kha mpepe J in Tshabalala, Ntuli , the
submissions that the rapes were not the worst kind should be put paid to.’
[25] The court in the following Western Cape judgment did not agree with this
statement, and in Botsane v S17said:
‘Rape on its own is violence. Rape by its very nature is a violent crime as it involves threats
or force. I cannot fathom how it can be said that the lack of physical injury in a rape of a six-
year-old is mitigating.’
14 Khoza v S [2022] ZAKZPHC 30 para 25.
15 S v Tshabalala and Another [2019] ZACC 48; 2020 (2) SACR 38 (CC) para 70.
16Leburu v S [2022] ZANWHC 57 para 24.
17 Botsane v S [2023] ZAWCHC 131 para 33.
12
[26] Matlala in an article18 expressed that:
‘The language used by judges in rape adjudication often mirrors and perpetuates detrimental
rape myths. Prevalent rape myths include the myths that: sexual assault is mostly committed
by strangers, that “real” rape involves violent force or the use of a weapon, that rape victims
will always have physical injuries, that women “ask for ” rape in some way through their
actions or behaviour, and that if rape did happen, the complainant would always report it as
soon as possible.’ (Footnotes omitted.)
She further went on to write that:19
‘The judiciary has a responsibility to establish precedents that convey a “clear and
unequivocal
Pronouncement” of its dedication to formulating and enforcing robust legal principles aimed
at combating gender -based violence. This constitutional mandate was notably emphasised
by the Supreme Court of Appeal (SCA) in the case of S v Chapman , where the court
articulated
that “the Courts are under a duty to send a clear message to the accused, to other potential
rapists, and to the community ”. The court further asserted its commitment to safeguarding
“the
equality, dignity, and freedom of all women ”, vowing no leniency towards those threatening
these rights. To fulfil its constitutional mandate, it is imperative for the courts to eliminate
erroneous and uninformed perceptions surrounding rape. This will require judges to adopt a
feminist jurisprudential framework, which is in accordance with their constitutional duties to
foster gender equality, safeguard women’s rights to personal freedom and security, and
uphold their dignity.’
In my view and considering the above, the argument by the appellant that there are
degrees of seriousness in rape cases, and this was not the worst case of rape ,
cannot stand. Rape is a serious offence and the effect that it would have emotionally
and psychologically on a defenceless minor is one that the legislature would have
and psychologically on a defenceless minor is one that the legislature would have
taken into account when prescribing the minimum sentence. Hence, this argument
falls to be rejected.
18 R Matlala ‘Rape myths and the language of the law: The need for a feminist jurisprudential
approach’ (2024) 14 Constitutional Court Review 137 at 139.
19 Ibid at 141.
13
[27] The rest of the factors listed in mitigation are not such that they cumulatively
amount to substantial and compelling circumstances justifying a lesser sentence
than the prescribed minimum. I can find no reason to interfere with the sentence
imposed by the court a quo as there is no misdirection on the learned magistrate’s
part. 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’. I agree with the
respondent’s argument that t he court further fulfilled the objectives of sentencing
namely, retribution, deterrence, prevention and rehabilitation in his evaluation on
sentence. This type of senten ce will prevent and deter him from committing such an
offence again and will send a clear message to all like -minded people wanting to
commit offences like these on children.
Order
[28] In the result:
The appeal against sentence and conviction is dismissed.
_________________________
Marion AJ
I agree, and it is so ordered
_________________________
Nkosi AJP
14
Date of hearing 17 October 2025
Date delivered: 27 October 2025
Appearances:
Applicant: Ms TM Citera
Instructed by: legal Aid South Africa
Pietermaritzburg
REF: X1044616934
Email: ZinaA@legal-aid.co.za
Respondent: Mr Mlondo
Director of Public Prosecutions
Pietermaritzburg
Email: dcmacdonald@npa.gov.za