SAFLII Note: Certain personal/privat e 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
Appeal Case no: AR51/2024
In the matter between:
S[...] E[...] M[...] APPELLANT
and
THE STATE RESPONDENT
JUDGMENT
Olsen J (Mossop J concurring)
[1] Mr S E M[...] was charged with the rape of his granddaughter (the
"complainant"). He was tried in the Regional Court at Ulundi, convicted and sentenced
to life imprisonment. He appeals against both his conviction and sentence.
[2] The complainant was born on 31 st October 2009. The rape is alleged to have
taken place during 2016. Although the charge sheet refers to the complainant as
having been eight years of age at the time, she was six years of age for m ost of
2016. The complainant first reported the incident in March 2019 when she was nine
years of
age and gave evidence in this trial during April 2021 at the age of 11. (This was a trial
which was subjected to far too many delays. The evidence was heard in 2021, 2022
and 2023. The appellant was convicted and sentenced in November 2023.)
[3] Until her report of the rape, the complainant lived in the family home of
her maternal grandparents, the appellant , and Mrs Z F M[...], who was also a State
witness. Of course , the report of the rape put an end to this arrangement. (The
complainant's mother lived and worked in Johannesburg.)
[4] Both the appellant and his wife were teachers. They were apparently
comfortably off, and their house had four bedrooms. According to the complainant in
2016 three of he r uncles (that is to say the sons of the appellant and his wife) also
lived in the house. One of them slept in a bedroom with his one year old child and two
of them slept together in another bedroom . The complainant slept in the room which
would be used by her mother when she was visiting from Johannesburg.
[5] From the outset of the appeal proceedings counsel for the State correctly
described this as a difficult case. It requires a more comprehensive account of the
evidence, and of certain features of the trial , than would ordinarily be considered
appropriate or necessary in an appeal judgment.
[6] The complainant's descriptio n of the events which gave rise to the charge
went as follows. Her grandmother worked at a school at which she sometimes had
to perform night duty. She would be away from home for the night. On one such night
in 2016 she found herself scared to sleep on her own and she went to sleep with
her
grandfather. He pulled her closer and covered her with his blanket. At some stage he
touched her private parts and removed her pyjamas and panties and put his penis into
her vagina. "Then he kept on moving and after that touched my buttocks. After that, in
the morning he woke me up and told me I should go to school, as if he did not do
anything".
[7] Her evidence then traversed the events which gave rise to a first report of the
incident in 2019. After that, and when the prosecutor asked the complainant to go back
to 2016 in order to seek clarity on some issues, the complainant volunteered that "it
happened again a second time. On this occa sion he did the same thing as he had
done on the first occasion." Her description of the second incident, given when pressed
by the prosecutor, was the same course of events that she had already described
when dealing with the first incident. It is clear t hat her evidence·to the effect that the
incident was repeated came as a surprise to the prosecutor. The charge sheet
reflected only one count of rape. It must be noted , however, that the complainant's
grandmother, who gave evidence, said that the complaina nt had reported two
incidents to her.
[8] The complainant was asked by the attorney representing the appellant why it
was that she returned to her grandfather's bed on the second occasion, given what
had happened before. The complainant explained why she was afraid. She thought
that ghosts exist, and that they would come and take her away. She thought that there
was something walking on the roof and she thought that perhaps they were
ghosts which had come to take her. She had told one of her uncles before, that she
had heard things walking on the roof and he had explained that it was just
cockroaches. But she
was convinced it was ghosts. She also had bad dreams. She dreamt of herself dying
or being knocked down by a vehicle. These dreams occurred regularly. She was asked
whether, given that her grandfather denied that these events had taken place, she
could perhaps have been dreaming that they had taken place. Her response was that
the accounts she had given were not dreamt, but reality.
[9] According to the complainant she had a good relationship with her mother
and her grandmother . Indeed, prior to these events to which she spoke she had
been told by her mother that if anyone touched her inappropriately she must report it
to her mother . The complainant made no report and explained that she was afraid
that if she did so no one would believe her. She made no report to her best friend ,
she said, because the story would be spread throughout the school.
[10] Finally, with regard to the incidents , the complainant's evidence was that she
suffered pain when urinating afterwards. However she saw no blood, nor any other
liquids connected to the incidents.
[11] I turn now to the events of 2019. But first a little background. The
Princess Phumzile Primary Schoo l, Ulundi, opened in 2018. The complainant was a
grade 3 pupil at the school when it opened . Her class teacher was a Ms Mtshali who
was a defence witness. In 2019 the complainant's class teacher in grade 4 was a Ms
Ntshangase. Ms Mtshali did not teach grade 4 students as she was what she called a
"foundation teacher" qualified to teach from g rade R to grade 3 . The appellant also
took a post at the Princess Phumzile School. As they lived in the same household the
appellant took the complainant to school every day. Ms Mtshali was, of course, aware
of the relationship between the two. When asked to comment on it she said that the
appellant and the complainant enjoyed a good relationship. She gave as an example
how sometimes at break time the child would announce that she was going to find her
grandfather to get money to buy food.
[12] The complainant was nine years of age in 2019. She gave the following
account of the relevant events.
(a) One day her teacher asked the pupils in her class to draw pictures of their
families. The complainant drew a picture which depicted her grandfather
"eating my grandmother's hot dogs". (No questions were asked of th e
complainant to obtain a clearer understanding of what it is she had drawn.)
(b) When the other children saw the picture the complainant had drawn they
reported to the teacher that the complainant was disrespecting her
grandfather. Why that picture might have generated that response from the
pupils was never explored in evidence.
(c) The complainant's teacher then asked her why she was teasing or
disrespecting her grandfather. According to the complainant her answer
was that her grandfather had sexually assaulted her.
(d) According to the complainant "her" teacher that she was speaking about,
and to whom she gave this account of events, was Ms Mtshali. According
to her Ms Mtshali then said that she would call the social workers the next
day.
(e) The social workers were there the next day. They appear to have played a
game, setting up three robots of the three customary colours in a room, and
asked the children to line up upon the basis that those who felt they had
been abused should line up behind the red robot. When that was done the
other students were dismissed back to class and the social workers then
dealt with the ten or so pupils who had lined up behind the red robot. One
of the social workers was a Mr Mkhize , who assisted the complainant.
According to the complainant she told Mr Mkhize everything.
(f) Her grandmother was called to the school and when she arrived the
complainant also told her everything.
(g) The next day her grandmother took her to be medically examined.
According to the complainant the doctor asked her nothing but simply
examined her. She said that the doctor had asked her grandmother all the
questions. But the complainant must have been relying on a report from her
grandmother to that effect because she, the complainant, was not present
when this happened.
[13) The state called only two witnesses besides the complainant: Mrs M[...], the
complainant's grandmother, and a Dr Mathenjwa who examined the complainant.
[14) On the day that the social welfare officers performed their duties at the Princess
Phumzile School, Mr Mkhize went to the school at which Mrs M[...] worked and
advised her of what the complainant had said. Mrs M[...]'s evidence is that she could
not believe it and did not believe it when she arrived at the school that day and spoke
to the people there. She said she only believed what she had been told when she
spoke to the complainant herself.
[15] Mrs M[...] says that the complainant told her that the appellant had sexually
violated her in 2016 on two occasions. The complainant told her how it had happened.
She said she was having bad dreams and decided to go and sleep in the bedroom
with her grandfather. Her grandfather instructed her to undress herself and take off
her pyjamas. Upon the assumption that Mrs M[...]'s evidence to this effect is true, it
contradicts the complainant's evidence that it was her grandfather who undressed her.
The complainant then told her that her grandfather got on top of her and sexually
violated her. This also contradicted the complainant's evidence which was to the effect
that she was lying on her side during these incidents.
[16] When Mrs M[...] asked the complainant why she did not report these
occurrences to her grandmother the answer given was that the two of them were
married and that Mrs M[...] might not believe her. This accords with the complainant's
evidence.
[17] Mrs M[...] was asked whether she enquired of the complainant as to why she
was now speaking up about the incidents. She said that she did, and that the
complainant's reply was that they had been asked to draw pictures of their families,
and that the teacher's enquiry was as to why the appellant was not depicted in the
drawing. This report to Mrs M[...] also contradicts the complainant's evidence as
according to her the complaint was that the picture depicted the appellant eating her
grandmother's hotdogs.
[18] Mrs M[...] confirmed that she was at the Mkonjeni Hospital when the
complainant was examined. The complainant was taken there in a police car and Mrs
M[...] had followed . She was not present in the room when the complainant was
examined. She saw the doctor at the hospital, but she did not say that she furnished
the doctor any information by way of the history of the complaint. After the examination
was done the nurse and not the doctor showed her a sketch or drawing and explained
what was depicted on it.
[19] Finally Mrs M[...]'s evidence was that she went to report the matter to the
appellant's parents. She said that she told them what the child had said. The appellant
was called to the meeting. According to her he said "such a thing did happen in the
year 2016" and , as far as her somewhat confusing account of this meeting is
concerned, it does appear that her evidence is that the appellant offered the excuse
that he was smoking dagga. She confirmed that her son K[...] M[...] was also present
during this meeting at the home of her parents-in-law.
[20] It appears from the record that Mrs M[...] was highly emotional during the time
that she gave evidence. The magistrate records that at the end she was sobbing
uncontrollably. Her husband, the appellant, had been granted bail and it was of course
a condition that he should stay away from what had been the matrimonial home. By
the time the trial was underway divorce proceedings had commenced.
[21] The question of the so -called confession is a distraction which should be
disposed of immediately. Mr K[...] M[...] was called as a defence witness. His
evidence reads as that of an impressive witness. It was his idea that a report should
be made to the appellant 's parents. He confirms that his mother gave an account of
what had been reported to her by the complainant. His aged grandfather was hard of
hearing and he, Mr M[...], had to repeat what his mother had said, speaking very loudly
so that it could be heard by his grandfather. When his father arrived at the meeting his
grandfather told him what had been reported to him by his daughter -in-law, the
appellant's wife. Mr M[...]'s evidence was that "my father responded by saying that he
was not aware of such a case; that it came to him as a shock as well." When
challenged on this evidence Mr K[...] M[...] explained that his mother was distraught
during the course of this meeting. It is difficult to accept that he would dishonestly
contradict his mother's evidence on this issue. He was living with her at the time when
he gave evidence. The magistrate did not make a credibility finding against Mr K[...]
M[...]. When dealing with this issue in his judgment, the magistrate described the son's
version as "neutral". If the magistrate intended thereby to convey that Mr K[...] M[...]'s
evidence did not actually contradict his mother 's version of the meeting, that the
appellant admitted the allegations made against him, then the magistrate misdirected
himself. Judging from the record of the evidence , I have no hesitation in concluding
that Mr K[...] M[...]'s evidence on the subject of this meeting with his grandparents is
preferable to that of his mother 's evidence. His defence of his mother, that she was
distraught at the meeting, has the ring of truth. She may very well have been confused
as to what transpired during the meeting , and especially as to what was said by her
husband, the appellant.
[22] I turn to the medical evidence led by the state. Dr Mathenjwa examined the
complainant more or less three years after the alleged incidents took place. He made
only two observations upon which the state sought to rely as corroboration of the
complainant's version. They were:
(a) the presence of a healed tear or fibrosis on an otherwise intact hymen at 6
o'clock; and
(b) a foul smelling watery discharge.
According to Dr Mathenjwa, in the case of a young child the hymen is closer to the
outer structures of the genital organ than it is later on. If there was penetration it was
not beyond the hymen, although he was quick to advise the court of what the
magistrate clearly knew, that any level of penetration counted as such. In his evidence
in chief, he expressed the view that the healed tear (the length of which he neither
noted nor mentioned in evidence) was highly suggestive of attempted sexual
penetration. He expressed the same view regarding the cause of the watery discharge.
This may be contrasted with the conclusions which he recorded on the form J88. The
passage reads as follows.
"Hymen configuration with healed tear at 6 o'clock in keeping with previous
attempted penetration. Vaginal discharge noted."
Two things can and must be noted about this contemporaneous record of his
observations made two years before he was giving evidence. The first is that no
conclusion was sought to be drawn from the presence of the vaginal discharge.
Secondly, and more impor tantly, to say that a phenomenon is "in keeping with" (i.e.
consistent with) an incident is not at all the same thing as saying that the phenomenon
is "highly suggestive" of the incident.
[23] It is trite that the prosecution is expected to prepare and present the evidence
in rape cases with the utmost care. This is especially the case when the complainant
is a child. I see no reason why the same level of care ought not to be employed by
the medical profession. If as a matter of fact it is justified to express the opinion
that a
healed tear at 6 o'clock (as opposed to any other healed tear in the hymen) is "highly
suggestive" of sexual interference (as opposed to any other blunt intrusion or force)
the expert witness must explain and justify the opinion by furnishing the reasons for
that conclusion. Wessels JA explained the rule as follows in Coopers (South Africa)
(Pty) Ltd v Deutsche Gesellschaft Fur Schadlingsbekampfung MBH 1976 (3) SA 352
(A) at 371F.
"As I see it, an expert's opinion represents his reasoned conclusion based on certain facts
or data, which are either common cause, or established by his own evidence or that of some
other competent witness . Except possibly where it is not controverted, an expert's bald
statement of his opinion is not of any real assistance. Proper evaluation of the opinion can
only be undertaken if the process of reasoning which led to th e conclusion, including the
premises from which the reasoning proceeds, are disclosed by the expert."
[24] Dr Mathenjwa was cross examined at some length by Mr Moala, the attorney
who represented the appellant until the close of the State case. He was pressed on
the views he expressed in his evidence in chief concerning the significance of the
healed tear and the vaginal discharge, and the best that can be said for Dr
Mathenjwa's response to the questioning is that it was evasive in the extreme . The
court was left quite in the dark concerning the doctor's reasons for expressing an
opinion which went materially beyond what he had noted on the form J88. The
magistrate ought to have been quite unpersuaded by the proposition that there was
any significance at all t o be attached to the presence of a vaginal discharge three
years after the alleged events. The magistrate ought to have accepted that the best
that could be said (from the State's perspective) for the medical evidence was that the
healed tear in the hymen (undescribed save for its position at 6 o'clock) could have
been caused by an attempt at penetration by a blunt object during the course of an
attempt at penetration. The corroborative value of that evidence is questionable, given
the complainant's description of penetration of her vagina accompanied by
movements which lasted for perhaps ten minutes on two occasions.
[25] Before leaving the medical evidence I must refer to the fact that on the form
J88, under the heading general history, Dr Mathenjwa noted the following.
"The sexual assault happened multiple times".
Dr Mathenjwa cannot recall the source of the historical information he was given.
Although not clear, I believe that his evidence is that he would normally get it in a case
like this from the guardian. If one accepts Mrs M[...]'s evidence that she was told by
the complainant that this had happened twice, then that is presumably what she would
have told the doctor. The complainant denied that she gave the doctor any history; but
if she was mistaken in that, she might also have said to the doctor that it happened
twice, although the fact that the prosecution was unaware of this clouds the issue.
Nevertheless, it seems improbable Dr Mathenjwa would have used the term "multiple
times" if he had been told that there were two incidents.
[26] As the appellant's conviction in the court a quo evidences, the magistrate
rejected the appellant's evidence as false beyond reasonable doubt·.In the main I have
no difficulty in supporting the credibility findings made against the appellant by the
magistrate, and the general tenor of the magistrate 's analysis of the appellant's
evidence as unreliable. The obvious example is the appellant's protestation that the
complainant never slept in his bed. The evidence of the appellant's son, Mr S[...]
M[...], contradicted that assertion. He said it was a common thing for the child to sleep
with the appellant. There is no reason to reject that evidence. The witness's evidence
reads well and shows no bias. There is nothing improbable or unnatural about a six
year old girl, the only female in the household when her grandmother was away doing
night duty, preferring, at least at times, to sleep in the security of her grandfather's
room rather than alone in her own room.
[27] It was a central feature of the appellant's evidence that his wife must have put
the complainant up to accuse her grandfather of molesting her sexually. It does appear
from the record that from perhaps 2018 onwards, if not earlier, the marriage was not
what it had been before. The appellant's attempts to suggest a motive for his wife to
descend to the depths of manipulating her granddaughter to the point of soliciting a
false accusation from the child, were quite unconvincing. He suggested disputes over
money matters, and alleged infidelity on the part of Mrs M[...], as motives. There was
no evidence, however, that the complainant was thus influenced by her grandmother.
[28] The appellant protested that as a diabetic he was unable to gain an erection
and therefore could not have done what he was accused of. However the magistrate
was correct in finding on the evidence that this diagnosis was only made in 2018.
[29] In terms of section 35(3)(h) of the Constitution every accused person has a
right to a fair trial which includes the right to be presumed innocent. The
presumption of innocence is displaced by proof beyond a reasonable doubt of the
accused person's guilt. It is uncontentious that in deciding whether the presumption
has been displaced all the evidence in the case must be considered. To that extent
the full force of the presumption comes into play only at the end of the trial of an
accused person.
However, it exists at the outset and endures throughout the trial. In my view it is
necessary, when for good reason it is found that an accused person's evidence on
certain issues is not credible, for a judicial officer to consider the question as to
whether, and to what extent, that circumstance is logically inconsistent with the
presumed innocence of the accused person. On the evidence before the trial court,
out of the blue one day during 2019, a nine year old bright, intelligent child suddenly
disclosed that when she was six years old her grandfather had raped her. He was a
man over 50 years of age who had pursued a career teaching children of similar age
to his granddaughter. On all the evidence before the court the relationship between
the grandfather and the granddaughter was a loving one. They had lived for some
years in the same household, perhaps from quite soon after her birth. No one in the
household, not even the child's grandmother who ultimately took her part in this trial,
noticed anything untoward or unusual in the relationship between the grandfather and
the granddaughter at any time. If one assumes the appellant's innocence, what was
he to make of his situation? The terribleness of it undermined his very person, his
family, and the career in which he seems to have been well valued as a tea cher of
small children. Nothing had happened between the two of them which could be
presented as a reason for her suddenly to turn against him and make the accusations
she did. He was in a desperate situation. From an uninvolved objective standpoint it
is easy enough to say that the appellant should have adhered to the truth and left it to
due process to reveal his innocence. Nevertheless, his situation was such that it is
understandable that, notwithstanding his innocence, he might choose to invent a false
narrative, claiming sexual incapacity and that the child never ever slept in his bed; and
making wild allegations which he could not substantiate to the effect that things had
making wild allegations which he could not substantiate to the effect that things had
gone so wrong between him and his wife that she might have induced the child to
make a false accusation of sexual molestation. In my view the fact that the appellant
resorted to a false narrative is not necessarily inconsistent with his denial of the
allegation that he molested his granddaughter. (As to the aforegoing see S v
Steynberg 1983 (3) SA 140 (A) at 146 - 147.)
[30] I do not wish to be misunderstood to be conveying that, without more, the
appellant's mendacity should be regarded as a neutral factor. Such a conclusion would
involve the cardinal error of assessing the evidence of a single witness otherwise than
in the context of all of the evidence. It is a wholistic approach to the evidence in the
case which generates an assessment of the impact, one way or the other, of the
appellant's mendacity. The point to be made is that the magistrate was duty bound to
take care to avoid "the intrusion of any idea that a party should lose his case as a
penalty for perjury." (See Goodrich v Goodrich 1946 AD 390 at 396.)
[31] The second witness called by the defence was the teacher Ms S Mtshali . It
will be recalled that she was the complainant's class teacher in 2018 when the child
was in grade 3 . She taught all the subjects in grade 3. Her evidence is that Ms
Ntshangase was the complainant's class teacher in 2019, although in grade 4 more
than one teacher taught the various subjects to the class. Ms Mtshali did not teach
grade 4 as, certainly at that time, her work was confined to the foundation stage.
[32] The complainant's evidence as to the participation of Ms Mtshali in the events
of 2019, that is to say the setting of the task of drawing the family, the complainant's
drawing involving "granny's hotdogs", the allegation of disrespect shown by the
complainant to the appellant, the complainant's alleged disclosure of the appellant's
misconduct to Ms Mtshali, and her alleged undertaking to provide assistance the next
day by calling a social worker, were all put to Ms Mtshali by counsel for the appellant.
Her response was that she was not a party to any of these events. She learnt of the
accusations that had been made against the appellant after she had noted that he was
absent from school and was informed of them at a meeting with the principal which
would normally have been attended by the appellant.
[33] Under cross examination Ms Mtshali was challenged on the issue of a
request from the police that she should make a statement. She said that a female
police officer had asked her to "write something", and that she had refused to do so
for two reasons.
(a) One was that the police officer had not spoken to the principal.
(b) The second reason was that, whilst the police officer had told her what was
written on the piece of paper (which she recognised as a child's
handwriting), she, Ms Mtshali, knew nothing about those things and
informed the officer of that fact.
The prosecutor then informed the court that she proposed to make an application to
have the investigating officer (who was apparently the officer just mentioned) called,
and on that footing should be permitted to cross-examine Ms Mtshali on the contents
of the investigating officer's statement concerning her attempt to secure a statement
from Ms Mtshali. After argument the magistrate acceded to the request.
Notwithstanding that, and the cross examination which ensued, the investigating
officer was not called to give evidence in the case. It was put to Ms Mtshali that she
had refused to make a statement because she was thereby "helping the child"
(something never explained); because she was afraid to get involved in the matter;
and because she was afraid to testify in court. In particular, it was suggested that she
was afraid to testify against a colleague. Ms Mtshali was pressed at some length on
these matters. The question of the need to defer to the principal aside, Ms Mtshali's
evidence was that she could not claim to recall every detail of her conversation with
the officer two years earlier . However Ms Mtshali did not deviate from the central
features of her recollection and certainly persisted in her denial of the features of the
conversation upon which the prosecution relied to discredit her.
[34] The record reveals that Ms Mtshali's evidence summarised above was
consistent throughout. She had no difficulty answering the questions put to her and
was not evasive in any respect. There was no inherent fault -line in her evidence to
support a finding that she should be disbelieved.
[35] The third witness called during the presentation of the appellant's case was
Ms Ntshangase. She confirmed the teaching arrangements which Ms Mtshali had
spoken to during the course of her evidence. She presented herself as a person who
preferred not to interact with co -workers, but simply to involve herself in her work
with the children. She claimed never to attend the staff room . She somewhat
improbably claimed not to have realised that accusations had been made against the
appellant by his granddaughter. She had no difficulty remembering the complainant
and described her as a brilliant child . She said that the complainant simply
disappeared from her class at some stage earlier than the June examinations of 2019
and did not turn up for those examinations.
[36] Ms Ntshangase claimed to have a vague recollection of the children being
called to a hall in 2019, but no other recollection of what had happened. In the class
register she simply registered the complainant as absent day after day, until the child
eventually did not sit for the June examinations. Most of the cross examination of Ms
Ntshangase, indeed almost all of it, reflected the prosecutor's disbelief at the
proposition that the witness's memory could be so appalling. I have sympathy for that
view, but the truth of the matter is that Ms Ntshangase's evidence takes neither the
State nor the defence case any further.
[37] The magistrate decided to call a witness himself in the midst of the appellant's
case, before the appellant's two sons gave evidence . I have already dealt with what
I perceive to be the material elements of their evidence. The witness in question was
Mr Mkhize, the social worker who collected Mrs M[...] from her place of work and
brought her back to the Princess Phumzile Primary School on the day on which her
granddaughter made the accusations against the appellant. It is clear from at least
some of the questions put by the magistrate to Mr Mkhize that the magistrate hoped
thereby to clarify, or gain more insight into, the dispute between the complainant and
Ms Mtshali over the latter's alleged involvement in the disclosures made on that day.
[38] Mr Mkhize's evidence was that on the day in question his supervisor advised
him that an awareness campaign was to be conducted at the Princess Phumzile
Primary School and that Mr Mkhize should attend it. When he arrived at the school he
went to the principal's office where some people were already congregated. The
people involved in the awareness campaign on the day in question were employees
of the Department of Education as well as Childline, and of course Mr Mkhize . The
principal disclosed to Mr Mkhize that there was a complication with regard to the
conduct of the awareness programme because a report of abuse had already been
made, and it involved a member of the school's staff. It was decided to conduct the
programme, which involved, inter alia, an address to the assembled pupils, and then
what from the children's perspecti ve would have been the game involving robots.
Childline made their presentation after which that game was commenced, and Mr
Mkhize confirmed that the complainant was part of the group behind the red robot. He
then dealt with her personally. The child reported that she had been sexually abused
by her grandfather in her grandmother's absence. She said that it was more than once.
When Mr Mkhize asked her why she did not report this to her grandmother her answer
was that her grandfather had told her not to report to anyone. This was of course not
the complainant's evidence before the court.
[39] Mr Mkhize gathered from those whom he met at the school that the disclosure
in question had been made to a teacher. He did not know whether it was the child's
class teacher or any other teacher. He knew nothing of a Ms Mtshali. The complainant
did not mention a Ms Mtshali to him, and he did not meet such a person on the day in
question.
[40] In the result, the magistrate had inconsistent evidence as to the
circumstances in which the first report had emerged . A first report is not merely
relevant to the question of consistency. It is also important because such evidence
should reveal the circumstances giving rise to the disclosure. If it is generated by a
suggestion, let alone by any threat, it is important that the court should know that;
inter alia in a case like the present, because it is well known that once a small child
makes a declaration concerning something which happened to the child, it is seldom
voluntarily retracted, even if false.
[41] Before examining how the magistrate dealt with the evidence in this case it is
as well to remind oneself of two principles which may justifiably be labelled "trite", and
which bear a peculiar relationship in cases like the present. The first is the distinction
which must be drawn between the assessment of the credibility of testimony, and the
reliance which can be placed on it. The principle was stated as follows in S v Saban
en 'n Ander 1992 (1) SACR 199 (A) at 204c.
"What must be proved is the truth of the account of the party bearing the onus
and not merely the honesty of the witnesses who present it." (My translation.)
The second principle involves the caution to be exercised in certain instances, which
is engaged for two reasons in a case suc h as the present; namely the fact that the
complainant is a single witness and, perhaps more importantly, the fact that she is a
child. The dictum most quoted on the subject of single witnesses is found in S v Sauls
and others 1981 (3) SA 172 (A) at 180. Whilst Diemont JA pointed out in that judgment
that the testimony of a single witness may be acceptable despite some shortcomings
or defects, and that in that regard, the "exercise of caution must not be allowed to
displace the exercise of common sense", in following that injunction one should take
care not to allow "common sense" to displace the exercise of caution.
[42] Perhaps for the purpose of this case the most convenient exposition of
the reasons for caution in considering the evidence of child witnesses in cases
involving alleged sexual misconduct is to be found in S v Dyira 2010 (1) SACR 78
(ECG) at paragraph 6.
"Similarly, the courts have developed a cautionary rule which is to be applied to the
evidence of small children.... The court 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 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 "
(Authorities omitted.)
[43] In his judgment, the magistrate made reference to the need for caution in the
case of a single witness who is a young child, with reference to cases such as Dyira.
However, in my view, his judgment does not display the exercise of such caution. The
magistrate's approach to this case was governed by his assessments of credibility. He
found the complainant a credible witness, citing in support of that those factors so
often mentioned when assessing adult witnesses, such as that the complainant was
not "shaken in cross examination". He contrasted that credibility finding, with the ones
he made against the appellant and Ms Mtshali , discounted the significance of the
inconsistencies in the complainant's various accounts of events to which reference
has been made earlier in this judgment , and misdirected himself in finding that the
complainant's evidence was corroborated by that of Mrs M[...] and Mr Mkhize;
concluding that the complainant's evidence was not only credible but reliable: i.e. it
reflected truth.
[44] It was clearly apparent to the magistrate, and correctly so, that Ms Mtshali's
contradiction of everything the complainant had to say about Ms Mtshali's alleged role
in the events of the day when the child first accused her grandfather, posed a
significant obstacle to a finding that the complainant's evidence was credible.
[45] As I have already mentioned, during the cross -examination of Ms Mtshali the
prosecutor advised the court that she wished to cross -examine Ms Mtshali on the
contents of a statement made by the investigating officer concerning Ms Mtshali's
alleged refusal to make a statement to the police. The prosecutor could have asked
Ms Mtshali questions, as indeed she did, about why it was that the police did not have
a statement from her. The prosecutor, not satisfied with accepting the answers, sought
permission to cross examine Ms Mtshali in order to suggest to her that the contents of
the police officer's statement were correct. The magistrate ruled that the prosecutor
could proceed along those lines against the undertaking given by the prosecutor to
call the investigating officer concerned. The line of cross -examination achieved no
result favourable to the State. The investigating officer concerned was not called as a
witness. Despite that, in his judgment the magistrate referred to the statement of the
investigating officer as "evidence" in support of his finding that Ms Mtshali was not a
credible witness.
[46] After Ms Mtshali's cross examination the magistrate delivered a lecture to Ms
Mtshali about the obligation she had to report directly to the police if she received any
information concerning sexual misconduct in relation to a child. Ms Mtshali's response
was that she had not been told of that duty, and that she understood her duty to be to
report such an event to the principal, leaving it to the school and the principal to take
it from there. That did not satisfy the magistrate who continued to press Ms Mtshali
about her legal duty, with the obvious implication that if what the complainant had said
about a report to Ms Mtshali was correct, she, Ms Mtshali, had not conducted herself
lawfully. An objection was made to what had been put to Ms Mtshali, but the magistrate
dismissed it, claiming it to be his entitlement to educate Ms Mtshali on the law . I am
afraid that reading the relevant passages in the evidence suggests most strongly that,
whatever the magistrate's motive for doing what he did, Ms Mtshali would have
experienced it as intimidation designed to undermine her evidence.
[47] Matters did not stop there. After Ms Mtshali had been re-examined the
magistrate decided to put the entirety of the complainant's evidence to Ms Mtshali,
passage by passage, so to speak . He even went so far as to put Dr Mathenjwa's
evidence to Ms Mtshali, and ended with this statement to Ms Mtshali:
"This is the evidence by this child. I am not proposing anything to you. I am just
telling you what the evidence says on record."
[48] Counsel who appeared on appeal for the prosecution submitted in her heads
of argument, and repeated it in oral argument, that Ms Mtshali had been unfairly
treated by the magistrate. That submission was undoubtedly correct. At best for the
prosecution the magistrate's interventions I have described constituted an invitation to
Ms Mtshali to reconsider her evidence. There is little room to doubt that Ms Mtshali
would have left the court after her ordeal with a sense, if not a conviction, that the
magistrate had already decided that what the complainant had said about Ms Mtshali's
involvement in the disclosure of the alleged sexual misconduct of the ap pellant was
true, notwithstanding Ms Mtshali's denial of it.
[49] The magistrate criticised Ms Mtshali's evidence that she did not know anything
about the visit of social welfare officers to the school on that day. The magistrate
overlooked that Ms Mtshali taught the foundation grades. There is no reason to
suppose, and certainly no evidence to the effect that, even the children in the grades
below grade 4 would have been called to a lecture to be given by social welfare officers
and Childline on the subject of inappropriate sexual conduct.
[50] The magistrate ignored the fact that Mr Mkhize had not met Ms Mtshali on the
day in question and did not know or had not been told that the teacher to whom the
disclosure had been made by the complainant was Ms Mtshali. The name was not
mentioned to him by the complainant herself. The magistrate ignored the fact that Ms
Mtshali was not teaching the complainant during 2019.
[51] Unless one approaches the entire enquiry upon the basis that one believes
everything the complainant said without question, there is little if anything on the record
to justify a finding that Ms Mtshali 's evidence should be rejected as false.
Notwithstanding that, the magistrate's finding on the evidence of the teachers went as
follows.
"It would seem to me that they were hell -bent on protecting their colleague , the
accused herein, at all costs even if it meant misleading this court under false pretences
that they were not aware of the report by complainant and a subsequent visit by the
social workers based on the report. They were both not credible and can be deemed
to be unreliable witnesses and this court will reject their version as false insofar as it is
in conflict with the state case."
Insofar as Ms Ntshangase is concerned, I make no comment simply because it is not
the State case that the first report was made to her. The material witness is Ms Mtshali.
The magistrate overlooked the fact that it would be inherently improbable, . unless a
particular motive had been identified by the State in the presentation of its evidence,
for Ms Mtshali to risk her career by lying to protect a colleague, even to the point of at
the same time undermining the credibility of the colleague's granddaughter whom she
had taught the previous year. There is no evidence of any special relationship between
the appellant and Ms Mtshali. Furthermore,
(a) whilst the complainant's evidence implied that the social welfare officers
came as a result of her disclosures to Ms Mtshali, Mr Mkhize's evidence
establishes that the visit the next day by them was pre-arranged; and
(b) it is difficult to see why Ms Mtshali would have thought that denying that the
first report had been made to her would have assisted the appellant in any
way.
[52] The complainant's evidence reads well as far as it goes. All the witnesses
who interacted with her and who were asked the question said that she was a very
bright child. She testified at the age of 11 and I regard it as fair to say that this
assessment of her intellect comes through on the record. But the record of her
evidence, from the State's perspective the most important evidence in the case , is
truncated. For instance, the treatment of the sexual acts attributed to the appellant is
perfunctory.
[53] The complainant's explanation for her failure to report the incidents , that
she thought no one would believe her, is in my view reasonable coming from a bright
nine year old (her age when she first said it) or from an 11 year old child. It is far from
clear, however, that a six year old child, even a bright six year old child, would have
thought along those lines. The prosecution made no attempt properly to explore the
question of what knowledge of sexual matters the complainant may have had at the
age of six, nor indeed to contrast with that the state of mind of the complainant on that
subject at the ages of nine or eleven. Assuming that the complainant's evidence is
broadly true (I say "broadly true", because her description of what would amount to
full sexual intercourse is not borne out by what medical evidence is available), it
would perhaps have been more understandable if the complainant explained her
silence on the matter at the age of six by asserting that she did not then understand
the implications of what had occurred. But that is not her evidence.
[54] The delay of three years before the complainant first reported the alleged
incidents required an explanation, but it has to be acknowledged that the assessment
of the quality of such an explanation is difficult for want of a clear perception in the
adult mind of how the mind of a child of six, seven, or eight years of age would process
incidents of the type described by the complainant. However, perhaps of more
significance in a case like this is the question as to why the disclosure was made after
the passage of three years . The complainant's grandmother understood the
significance of that question and put it to her grandchild. Regretfully, the prosecution
appeared not to have appreciated the significance of it. The story of the drawing said
to depict the appellant eating his wife's hotdogs was never elucidated. (I put aside the
fact that there are two different accounts of what was depicted in the picture .) The
complainant said that her fellow pupils reported that her drawing showed disrespect
complainant said that her fellow pupils reported that her drawing showed disrespect
to her grandfather. (Why the drawing would elicit that rea ction was not explored in
evidence.) The prosecution made no attempt to secure from the complainant an
explanation for her decision, in the light of that report, to disclose what had happened
when she was six years of age. The connections between the drawing, the allegation
of disrespect, and the disclosure were not established in evidence. The connections
are, on the evidence, so remote that it is difficult through speculation to reach a
sensible impression of what might have gone on. Putting aside what I hold to be the
irreconcilable conflict between the evidence of the complainant and that of Ms Mtshali,
the court was deprived of any evidence from the complainant concerning what Ms
Mtshali might have thought of the picture, and what she said to the complainant about
how she, Ms Mtshali, perceived the picture. Did Ms Mtshali also regard the picture as
disrespectful of the child's grandfather? Did she perhaps press the child with the
proposition that she had no reason to disrespect her grandfather? Did some exchange
along those lines perhaps generate an unexpected disclosure of sexual misconduct?
The court should not have been left to speculate along such lines. If-some truth resides
in the complainant's account of events in 2016, the prosecution failed properly to
discharge its duty to place her case before the court.
[55] The complainant explained her return to her grandfather 's bedroom when
the second incident occurred by furnishing an account of the state of her imagination
when she was six years of age. In essence , she described a blurring in her mind of
the distinction between imagined things and reality. The magistrate's judgment
shows no appreciation of that fact, and consequently no acknowledgment of its
potential significance in a case like the present. It is simply not good enough to
accept the complainant's protestation that what she was describing was real and not
dreamt on the basis of credibility findings. Al though the magistrate cited Dyira he
never considered "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... ".
[56] From the questions put by the prosecution to Ms Mtshali it is plain that the
investigating officer and the prosecutor understood that Ms Mtshali did not support the
complainant's evidence as to the making of her first report to Ms Mtshali. It would
appear that no further investigation was done in order to clear up that important fact.
The prosecution knew that Mr Mkhize had dealt with the complainant on the day that
the social welfare officers performed their tasks at the school. It appears that he was
not interviewed. If a statement had been taken from him it would have revealed that
the principal knew of a first report before the social welfare officers commenced the
performance of their duties for the day. We do not know whether a statement was
taken from the principal. One assumes not, as he was not called in order to support
the State's case as to the circumstances of the first report. (I discount the possibility
that he was not called because the investigating officer and/or the prosecution
believed that his evidence w ould undermine the State case on this issue.) The only
conclusion reasonably to be drawn is that on this account, and on others mentioned
earlier, both the investigative and prosecutorial arms of the State failed to perform their
duty carefully to investigate and prosecute a case of the alleged rape of a child.
[57] Taking all these considerations into account, this is not a case in which
the failings of the appellant as a witness on the issues already discussed can
legitimately lead to the conclusion that his denial of sexual interference at any level
with the complainant is demonstrably false. The State failed to prove its case
beyond a reasonable doubt.
[58] Finally, I am compelled to say something about the conduct of the ad vocate
who took over from Mr Moala after the close of the State case. His arrival on the record
was accompanied by a statement that he would be applying for the recall of the State
witnesses as there were matters which had not been dealt with properly. There are
frequent exchanges during the course of the defence case between the lawyer and
the magistrate in which the lawyer displayed a confrontational approach to the court.
Unfortunately at times the magistrate rose to the bait. (What the witnesses who were
giving evidence during the course of some of these exchanges thought of the matter
one does not know, but it must have caused them some discomfort.) However, I would
not have mentioned these matters if it were not for the crescendo reached when the
defence advocate addressed the court on sentence. He listed the defendant's
personal circumstances in the ordinary way. The appellant was a 57 year old man with
no previous convictions who had been teaching children since 1992, and so on. (I do
not propose to dwell on the subject but make the observation that the submission we
received from counsel who appeared for the State in this appeal was that , if the
conviction should be upheld, the sentence should be closer to 15 years than to 20
years imprisonment. That submission had merit.) Having listed those personal
circumstances, counsel for the appellant then submitted that there were, in fact, no
substantial and compelling circumstances justifying a deviation from the sentence of
life imprisonment. He then added that this case was going on appeal.
[59] The rationale for this extraordinary conduct is not explicitly stated on the record.
One can only assume that the advocate adopted that stance in order to gain what he
perceived to be the advantage of an automatic right of appeal. In the process he
displayed complete disrespect for the magistrate's ability rationally to determine a
sentence, and to consider an application for leave to appeal, and for this court's ability
to discern grounds for appeal on petition if the magistrate concluded that an appeal
should not be allowed. More importantly, he disregarded the right o f his client to a
decision on sentence from the judicial officer who had the benefit of being steeped in
the trial. He disregarded his duty to make all submissions which could reasonably be
made in support of a lesser sentence than life imprisonment.
[60] The advocate concerned delivered heads of argument in this appeal which we
found to be quite unhelpful. Two days before the appeal was due to be heard another
advocate was briefed, apparently because of the unavailability of counsel responsible
for the presentation of the defence case in the magistrates' court. He was not
sufficiently prepared as a result of which the appeal had to be adjourned to a later date
in order to allow him to deliver heads of argument and be properly prepared for the
hearing.
[61] We say no more on this subject. Because he did not appear on appeal, counsel
who conducted the defence in the court a quo has not been heard on the subject of
his conduct. What happened nevertheless warrants mention in this judgment, as does
our disapproval of the course followed by defence counsel.
[62] The following order is made.
(a) The appeal is upheld.
(b) The appellants conviction and sentence in the court a quo are set
aside and replaced with the verdict "Not Guilty".
Olsen J
Mossop J
Case Information:
Judgment reserved:
Judgment delivered:
15 August 2025
5 December 2025
For Appellant:
Instructed by:
Mr Mvune
N T Sibiya Attorneys
Ref: CRM0010/19/RVS
Tel: 035 870 0064/3320
Email: ngemamboni@gmail.com
info@ntsibiyaattorneys.co.za
c/o MHS Attorneys Inc
Tel: 031 301 0665
Email: info@mhsattorneys.co.za
For the Respondent: Ms Moosa
Director of Public Prosecutions
KwaZulu-Natal
Tel: 031 334 5265
Email: nmoosa@npa.gov.za